1618514 (Refugee)

The applicant, a Malaysian national, sought a protection visa in Australia, claiming to be a lesbian who feared persecution or significant harm upon return to Malaysia due to her sexual orientation and perceived lifestyle. The dispute centred on whether she met the criteria for a protection visa under Australian migration law. The decision was made by James Silva, a member of the Tribunal.

The core legal issues before the Tribunal were whether the applicant qualified as a refugee under section 36(2)(a) of the Migration Act 1958 (Cth) and, alternatively, whether she met the complementary protection criterion under section 36(2)(aa). Specifically, the Tribunal had to determine if the applicant had a well-founded fear of persecution for reasons of membership of a particular social group (lesbians) in Malaysia, or if there was a real risk of significant harm upon removal to Malaysia.

The Tribunal accepted the applicant's evidence that she is a lesbian and is perceived as such in Malaysia due to her appearance and conduct. However, it found her evidence regarding her reasons for coming to Australia and her need for protection to be less forthcoming. While acknowledging the discrimination faced by LGBTI individuals in Malaysia, including government criticism and societal disapproval, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or a real risk of significant harm. The Tribunal noted that the applicant had lived relatively openly as a lesbian in Malaysia and had not provided sufficient evidence to demonstrate that she would be persecuted or suffer significant harm across all areas of Malaysia.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that she did not satisfy the criteria for either refugee status or complementary protection.