1722963 (Refugee)

This matter concerned an application for a protection visa by a Malaysian citizen born in Australia. The applicant's claims for protection were based on fears that if returned to Malaysia, he would suffer serious harm due to his elder brother not conforming to traditional gender expectations and being transgender or perceived as such. The applicant's parents feared that Malaysian authorities would not provide protection and might even harm the applicant because of his relationship to his brother, and that family members of those who do not conform to gender expectations were at risk throughout Malaysia. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant faced a real risk of significant harm in Malaysia, thereby meeting the criteria for a protection visa.

The central legal issue before the Tribunal was whether the applicant qualified for a protection visa under section 36(2)(aa) of the Act, which pertains to complementary protection. This required the Tribunal to assess if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, the applicant would suffer significant harm. The Tribunal was also required to consider the relevance of a prior decision concerning the applicant's elder brother and parents, where the Tribunal had not accepted that the elder brother was transgender or did not conform to traditional gender norms.

In its reasoning, the Tribunal considered policy guidelines and country information assessments as mandated by Ministerial Direction No. 56. The Tribunal noted that the applicant's claims for protection were predicated on the premise that his elder brother was transgender or perceived as such, and that this status would place the applicant at risk in Malaysia. However, the Tribunal had previously found, in a related case, that the elder brother was not a transgender person or a boy who did not conform to traditional gender stereotypes. Consequently, the Tribunal concluded that the basis for the applicant's fear of harm, namely his brother's non-conformity and transgender status, was not established. The Tribunal affirmed the decision not to grant the protection visa.