1721152 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, a single woman of Chinese ethnicity and Buddhist religion, claimed she feared serious or significant harm upon return to Malaysia due to her identity as a lesbian. The delegate had accepted the applicant was gay but found she did not face a real chance of experiencing serious or significant harm.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), specifically whether she had a well-founded fear of persecution for reasons of membership of a particular social group. This involved determining if lesbians in Malaysia constituted a particular social group and if the applicant had a well-founded fear of persecution for that reason, considering the available country information and the applicant's personal circumstances.

The Tribunal found the applicant's evidence credible and accepted her explanation for the lack of detail in her initial application, attributing it to limited English and unfamiliarity with the protection visa process. The Tribunal considered the definition of a "particular social group" under section 5L of the Act, which requires a shared characteristic that is innate or immutable, fundamental to identity or conscience, or distinguishes the group from society. The Tribunal concluded that the applicant was a member of the particular social group of lesbians in Malaysia and that she had a well-founded fear of persecution.

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