1700826 (Refugee)

This matter concerned an application for a protection visa by a Malaysian citizen who identified as a gay Muslim man and an advocate for gay rights. The applicant sought review of a decision that he did not meet the criteria for a protection visa. The court was required to determine whether the applicant had a well-founded fear of persecution for one or more of the five prescribed reasons under the Migration Act 1958, or alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, he faced a real risk of suffering significant harm.

The court considered extensive evidence regarding the applicant's personal history, including his struggles with his sexuality and religious beliefs, his experiences of sexual assault and trauma, and his subsequent engagement in LGBTI advocacy. The court also examined country information detailing the legal framework and societal attitudes towards LGBTI individuals in Malaysia, including reports of discrimination, harassment, and violence, as well as the limited availability of effective state protection. The court applied the principles of s.5J of the Migration Act, which defines a well-founded fear of persecution, and s.36(2)(aa), which outlines the complementary protection criterion concerning significant harm.

The Tribunal found that homosexuals constituted a particular social group under s.5L of the Act, and that the applicant's membership in this group was the essential and significant reason for the persecution he feared. It was satisfied that the laws criminalising same-sex behaviour and prevailing anti-LGBTI sentiments in Malaysia created an environment that legitimised discrimination and harassment, amounting to serious harm. The Tribunal concluded that the applicant's advocacy work further increased his risk of harm, and that effective state protection was not available to him in Malaysia. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied s.36(2)(a) of the Migration Act.