1615493 (Refugee)

This matter concerned an application for a protection visa by a Malaysian national who identified as female and was in a de facto relationship with another woman. The applicant claimed she faced persecution in Malaysia due to her sexual identity and her relationship, which was not accepted by her family or society. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether she would face persecution or significant harm if returned to Malaysia.

The primary legal issues before the Tribunal were whether the applicant constituted a member of a particular social group for the purposes of the *Refugee Convention*, and if so, whether she had a well-founded fear of persecution based on her sexual identity and relationship. The Tribunal also considered the complementary protection criterion, assessing whether there were substantial grounds for believing that the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of removal to Malaysia. The Tribunal was required to have regard to Ministerial Direction No. 56, relevant policy guidelines, and country information.

The Tribunal considered the applicant's evidence regarding her experiences in Malaysia, including family opposition, public insults, physical abuse, and the general societal hostility towards LGBTI persons. It noted that while the Delegate had found insufficient evidence of the applicant being transgender, the Tribunal heard direct evidence from the applicant and her partner. The Tribunal acknowledged that while the applicant identified as female and her partner also identified as female, the applicant's presentation and past experiences, including being called "pengkid" and facing violence, suggested a complex identity that could place her within a particular social group. The Tribunal found that the applicant's experiences of verbal and physical abuse, coupled with the hostile public stance and religious fatwas against transgender and LGBTI individuals in Malaysia, indicated a real risk of significant harm.

Ultimately, the Tribunal was satisfied that the applicant faced a real risk of significant harm if returned to Malaysia, and therefore met the criteria for the grant of a protection visa under section 36(2)(aa) of the *Migration Act 1958* (Cth). The Tribunal set aside the Delegate's decision and remitted the matter to the Delegate to grant the visa.