1621127 (Refugee)

The applicant, a single man of Malay ethnicity and Muslim religion, sought a protection visa in Australia. He claimed that if returned to Malaysia, he would face significant harm due to his homosexuality, including discrimination, depression, and stress, fearing persecution from other Muslims rather than the government. The delegate had previously found that while gay relationships could be prosecuted under certain laws, these were rarely enforced, and despite government criticism of homosexuals and reports of societal discrimination, the cumulative level of harm did not amount to persecution.

The legal issues before the court were whether the applicant met the criteria for a protection visa, specifically under section 36(2)(a) of the *Migration Act 1958* (Cth) concerning a well-founded fear of persecution, or alternatively under section 36(2)(aa) regarding complementary protection and the risk of significant harm. The court was required to consider the applicant's claims of harm in Malaysia, the relevant country information, and the definition of "significant harm" as outlined in the Act.

The court affirmed the decision not to grant the applicant a protection visa. It noted that the applicant did not satisfy the criterion in section 36(2) of the Act. The court's reasoning implicitly involved assessing the applicant's credibility and the objective evidence regarding the risk of harm in Malaysia, considering the provisions of Ministerial Direction No. 56 and relevant policy guidelines and country information. The applicant's evidence regarding his reasons for applying for protection and his living arrangements in Malaysia were also considered.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.