1612187 (Refugee)

The applicants, a same-sex couple from Malaysia, sought protection visas in Australia. Applicant one claimed to be a lesbian Muslim who had been persecuted in Malaysia due to her sexual orientation and feared forced marriage and harassment by religious authorities and the general Muslim community. Applicant two, also a Muslim, was in a de facto relationship with applicant one and shared similar fears of harm and discrimination if returned to Malaysia. The Tribunal considered the claims in light of Ministerial Direction No. 56, relevant policy guidelines, and country information assessments.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a protection visa, specifically under section 36(2)(a) of the Migration Act 1958, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also considered the complementary protection criterion under section 36(2)(aa), which applies if there is a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal was required to assess whether the applicants faced persecution or significant harm due to their membership in a particular social group, defined by their sexual orientation and religious identity, and whether effective protection measures were available in Malaysia.

The Tribunal reasoned that the applicants' fear of persecution was well-founded. It noted that Malaysian law, including Sharia law, criminalises homosexual acts, and that the general Muslim community and religious authorities in Malaysia were hostile towards lesbians. The Tribunal found that the applicants' sexual orientation constituted a characteristic that was innate and fundamental to their identity, distinguishing them from society, and that they shared this characteristic as a particular social group. Furthermore, the Tribunal concluded that the Malaysian authorities would not provide effective protection to the applicants, and that relocating within Malaysia would not mitigate the real risk of harm. The Tribunal was satisfied that the applicants faced a real risk of significant harm, including cruel, inhuman, or degrading treatment, and that their fear of persecution was based on their membership in a particular social group.

The Tribunal was satisfied that each applicant was a person in respect of whom Australia had protection obligations and therefore met the criterion set out in section 36(2)(a) of the Migration Act. The matter was remitted for reconsideration with the direction that the applicants satisfy this criterion.