1709684 (Refugee)

The applicant, a Malaysian citizen, sought a protection visa in Australia, claiming that if returned to Malaysia, she would face harm due to her identity as a lesbian. The dispute centred on whether Australia had protection obligations towards her under the Migration Act 1958 (Cth). The decision was made by Alison Murphy, 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 Act, or alternatively, whether Australia had protection obligations under the complementary protection criterion in section 36(2)(aa). This involved determining if the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically the LGBTQI community in Malaysia, and if she could access effective protection in Malaysia.

The Tribunal considered the applicant's personal history, including her family's negative reaction to her sexual orientation and threats of rehabilitation. It also took into account DFAT country information indicating that Malaysian authorities promote conversion therapy programs. The Tribunal found that the applicant was a Malaysian citizen and that Malaysia was the receiving country. Crucially, the Tribunal noted that it had significantly more information than the original delegate, as the applicant had not been interviewed by the delegate.

Ultimately, the Tribunal concluded that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Migration Act 1958 (Cth). Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies this criterion.