1615725 (Refugee)

The applicant, a citizen of Malaysia, sought a protection visa in Australia. The dispute concerned whether the applicant had a well-founded fear of persecution or faced a real risk of significant harm if returned to Malaysia, based on his identity as a gay man. The matter was heard by a member of the Tribunal.

The Tribunal was required to determine if the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, specifically whether he had a well-founded fear of persecution for reasons of membership of a particular social group, or alternatively, if he met the complementary protection criterion under section 36(2)(aa) by facing a real risk of significant harm as a necessary and foreseeable consequence of removal to Malaysia. This involved assessing the applicant's claims of experiencing isolation, humiliation, and fear of systematic discrimination in Malaysia due to his sexual orientation.

The Tribunal considered the applicant's evidence, including his account of his realisation of his sexuality, his family's reaction, and his friends' avoidance of him. It also took into account policy guidelines and country information assessments. The Tribunal found the applicant's account to be credible and concluded that he had a well-founded fear of persecution for reasons of membership of a particular social group, specifically gay men in Malaysia. The Tribunal determined that his sexual orientation was an innate or immutable characteristic fundamental to his identity, distinguishing him from society, and that he could not be expected to conceal it.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act.