1711482 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant initially claimed a fear of harm based on terrorist activities in Malaysia but later amended her claims to fear returning due to her sexual orientation and masculine appearance. The Tribunal was required to determine whether the applicant faced a real chance of serious harm or a real risk of significant harm if returned to Malaysia, as defined by sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958.

The Tribunal's reasoning focused on the applicant's identity as a transgender man, identifying as "Pengkid," and her fear of societal and official discrimination in Malaysia. It acknowledged the applicant's subjective fear, supported by country information detailing rising hostility towards LGBTI individuals, particularly gender non-conforming women, in Malaysia. The Tribunal found that modifying her behaviour to avoid persecution would conflict with fundamental aspects of her identity and sexual orientation, and that safe relocation within Malaysia was not a viable option. It concluded that the essential and significant reason for the feared harm was the applicant's membership in the particular social group of gender non-conforming lesbians, referred to as "Pengkids."

The Tribunal determined that the applicant had a well-founded fear of persecution due to her membership in this particular social group, satisfying the criteria under section 36(2)(a) of the Migration Act. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a).