1720156 (Refugee)

The applicant, who claims to be a lesbian, sought a protection visa on the basis of fearing harm if returned to Malaysia due to her sexuality. The delegate refused the application, finding that while Malaysian law criminalises homosexual practices, these laws are rarely invoked and any discrimination faced by lesbians would not amount to serious or significant harm. The applicant was informed by the Tribunal that her case was constituted to a Member and that she could choose to have a hearing to present evidence and arguments, or have the Tribunal decide based on the existing information. The applicant indicated she did not wish to attend a hearing and repeated her earlier claims.

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 (homosexuality) under section 5J of the *Migration Act 1958* (Cth), or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, she faced a real risk of suffering significant harm under section 36(2)(aa) of the Act. The Tribunal was required to consider the applicant's claims in light of the Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information.

The Tribunal reasoned that beyond claiming to be a lesbian, the applicant had provided no specific information or evidence to substantiate her fears of harm. The Tribunal noted that if the applicant had attended a hearing, it could have sought further details regarding her experiences, the nature of any past problems, and the basis for her belief that she faced a real chance of serious or significant harm, particularly given country information suggesting many homosexual individuals do not experience such harm in Malaysia. As the applicant declined a hearing, these questions remained unanswered. Consequently, the Tribunal was not satisfied that the applicant was a lesbian or that she faced a real chance of experiencing serious or significant harm due to her sexuality or any other reason upon return to Malaysia.

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding that she did not satisfy the criteria under section 36(2) of the *Migration Act 1958* (Cth), either as a refugee or on complementary protection grounds.