1709239 (Refugee)

The applicant, who arrived in Australia in July 2016, sought a protection visa, claiming he feared persecution in Malaysia due to his status as a gay Muslim. He asserted that his family, who are religious Muslims, were aware of his sexual orientation and were angry, potentially leading to him being beaten or forced into marriage. The delegate of the Department of Home Affairs found the applicant's information to be vague and unsubstantiated, concluding that while discrimination against gay men exists in Malaysia, it did not amount to serious harm, and therefore, the applicant was not a refugee. The applicant sought review of this decision before the Tribunal.

The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically being a gay man in Malaysia, and whether Australia had protection obligations towards him under section 36(2)(a) of the *Migration Act 1958* (Cth). This required the Tribunal to assess if there was a real chance that the applicant would suffer serious harm, involving systematic and discriminatory conduct, if returned to Malaysia, and whether effective protection measures were available to him. The Tribunal also considered the applicant's claims regarding potential harm from his family and the illegality of homosexual acts in Malaysia.

The Tribunal, after considering the evidence provided by the applicant, including statutory declarations and travel receipts, was satisfied that the applicant had established a well-founded fear of persecution. The Tribunal found that the characteristic of being a gay man in Malaysia was fundamental to the applicant's identity and that he could not be expected to conceal this characteristic. It concluded that the applicant would likely face serious harm, constituting persecution, if returned to Malaysia, and that effective protection was not available. Consequently, the Tribunal found that Australia had protection obligations towards the applicant.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act 1958*.