1704734 (Refugee)

The Administrative Appeals Tribunal considered the case of a Malaysian national seeking a protection visa. The applicant claimed she feared persecution upon return to Malaysia due to her identity as a married ethnic Malay Muslim woman with children, who is also in an extra-marital LGBTI relationship. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which concerns being a refugee with a well-founded fear of persecution.

The Tribunal's reasoning focused on whether the applicant's fear of persecution was well-founded, considering the objective and subjective elements required by section 5J of the Act. It examined the country information regarding anti-LGBTI sentiments and the legal framework in Malaysia, including Sharia law, which criminalises same-sex relations and prescribes penalties. The Tribunal concluded that a particular social group, defined as married ethnic Malay Muslim women with children in an extra-marital LGBTI relationship, was established under section 5L of the Act, and that the applicant's membership in this group was the essential and significant reason for her feared persecution. The Tribunal also considered whether reasonable steps could be taken to avoid persecution, finding that concealing her sexual orientation would conflict with a fundamental aspect of her identity and conscience, and that effective state protection was not available in Malaysia.

Ultimately, the Tribunal found that the applicant had a well-founded fear of persecution, involving serious harm and systematic, discriminatory conduct, and that the State of Malaysia was a principal perpetrator of such persecution. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act.