1709743 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Immigration's decision to refuse to grant the applicant a Protection (Class XA) Subclass 866 visa. The applicant, a Malaysian national, claimed she left Malaysia because she was forced to marry a man despite being a lesbian, and subsequently suffered mental abuse and threats from her husband, including threats to reveal her sexual orientation. The applicant contended that she would face harm if returned to Malaysia and that the Malaysian authorities would be unable or unwilling to protect her.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under s.36(2)(a) or s.36(2)(aa) of the Act. This required the Tribunal to consider the applicant's claims of forced marriage, abuse within the marriage, and the potential for harm and lack of protection upon return to Malaysia, particularly in light of her sexual orientation and the societal and legal context in Malaysia concerning LGBTI individuals.

The Tribunal considered country information regarding Malaysian law and societal attitudes towards forced marriage and homosexuality. It noted that while Islamic Family Law and the Law Reform (Marriage and Divorce) Act provide for consent in marriage and penalise forced marriages, and that adult same-sex acts are illegal, the application of these laws and the level of discrimination faced by LGBTI individuals can vary. The Tribunal found that while the Malaysian authorities are generally considered reasonably effective and there was no specific indication they would be unable or unwilling to protect the applicant, the country information did not definitively establish that the applicant would not face harm or mistreatment. Consequently, the Tribunal concluded that the decision under review should be remitted for reconsideration.