1612373 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who claimed to be a lesbian fleeing persecution in Malaysia. The applicant alleged systematic harassment and discrimination in her home country, including at school and in the workplace, and a specific incident involving police questioning due to public display of affection with her partner. She sought to live in Australia free from stigma and persecution.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution in Malaysia for one of the five prescribed reasons under section 5J of the Migration Act 1958. Alternatively, if the refugee criterion was not met, the Tribunal had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, the applicant would suffer significant harm, thereby engaging Australia's complementary protection obligations under section 36(2)(aa).

The Tribunal applied the principles outlined in Ministerial Direction No. 56, considering relevant policy guidelines and country information. It examined the applicant's claims of being ridiculed, bullied, and discriminated against due to her sexual orientation, including workplace harassment and an encounter with police. The Tribunal also considered the definition of "significant harm" under sections 36(2A) and (2B) of the Act. Ultimately, the Tribunal concluded that the applicant satisfied the refugee criterion under section 36(2)(a) of the Migration Act.

The Tribunal remitted the matter for reconsideration with a direction that the applicant meets the criteria for a protection visa under section 36(2)(a) of the Migration Act.