1722231 (Refugee)

The case concerned an applicant for a protection visa who was a citizen of Malaysia. The applicant's original claims for protection were based on his involvement in a separatist movement and concerns about racial and political discrimination in Malaysia. These claims were rejected by the original decision-maker. The applicant subsequently made new claims based on his membership in a particular social group, specifically as a homosexual man, and his fear of persecution due to his sexuality in Malaysia. The matter was before the Tribunal for reconsideration.

The Tribunal was required to determine whether the applicant was a refugee within the meaning of section 36(2)(a) of the Migration Act 1958, considering both his original claims and his new claims based on his sexual orientation. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether Australia had protection obligations towards him. The Tribunal also had to consider the credibility of the applicant's explanation for not disclosing his sexuality earlier and whether modification of his behaviour would be a reasonable step to avoid persecution.

The Tribunal found that the applicant's explanation for not disclosing his sexuality in his original application was reasonable, given his upbringing in a strict, conservative household and his apprehension about revealing this information to his community and family. It accepted that the applicant was a homosexual man and that there was credible evidence regarding the laws and societal attitudes in Malaysia towards homosexual individuals, indicating a moderate risk of official and societal discrimination. The Tribunal concluded that modification of his behaviour to conceal his sexual orientation would not be a reasonable step to avoid persecution, as it would conflict with a fundamental characteristic of his identity. While the applicant's original claims regarding separatism were discontinued, the Tribunal found that the new claims based on his membership in the social group of homosexual men met the criteria for a well-founded fear of persecution.

Consequently, the Tribunal was satisfied that Australia had protection obligations under section 36(2)(a) of the Migration Act. The matter was remitted to the Department for reconsideration with the direction that the applicant satisfies the criteria for a protection visa.