1713345 (Refugee)

The applicant, a gay female of Chinese-Malay ethnicity, sought a protection visa on the grounds that she would face persecution in Malaysia due to her sexuality. The delegate had accepted the applicant was gay but found she would not face a real chance of serious or significant harm. The applicant sought merits review of this decision by the Tribunal.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), specifically whether she was a refugee with a well-founded fear of persecution for reasons of membership of a particular social group, and if not, whether she met the complementary protection criterion under section 36(2)(aa) due to a real risk of significant harm upon removal to Malaysia.

The Tribunal found that lesbians constitute a particular social group in Malaysia, sharing characteristics that distinguish them from the rest of society, and that the applicant shared these characteristics. Considering country information indicating Malaysia's conservative Islamic nature, official and societal disapproval of LGBTIQ+ identities, illegality of same-sex acts, and reports of targeting and discrimination, the Tribunal accepted the applicant's evidence of past harassment, ostracism, and pressure to resign from her job. The Tribunal concluded that the applicant would be at risk of similar assaults and discrimination if returned to Malaysia, satisfying the definition of a refugee under section 36(2)(a).

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