1726185 (Refugee)

The applicant sought review of a delegate of the Minister's decision to refuse her a protection visa. The applicant claimed to be a lesbian of Chinese ethnicity from Malaysia, who had been subjected to familial pressure to marry a man to repay her father's gambling debts. She alleged false imprisonment by her family and that Malaysian police would not accept her report due to her sexuality. The delegate was not satisfied that the applicant faced a real chance of persecution for a Convention reason or a real risk of significant harm.

The core 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, and whether she faced a real risk of significant harm upon removal from Australia to Malaysia. Specifically, the Tribunal had to determine if lesbians in Malaysia constituted a particular social group under the Migration Act 1958 (Cth), and if the applicant's stated fears of mistreatment, including forced marriage and imprisonment, amounted to persecution or significant harm. The Tribunal also considered whether effective protection measures were available to the applicant in Malaysia and whether she could be expected to modify her behaviour to avoid persecution.

The Tribunal found the applicant's evidence regarding her sexual orientation and gender identity to be credible. It concluded that lesbians in Malaysia constitute a particular social group, as their sexuality is an innate and fundamental characteristic that distinguishes them from society at large, and they should not be forced to renounce it. Considering independent country information, the Tribunal was satisfied that the applicant would face a real chance of suffering physical and other mistreatment amounting to serious harm due to her membership in this group, exacerbated by her preference for male clothing and her gender identity. The Tribunal found that this risk applied to all areas of Malaysia and that effective protection measures were not available. It also determined that requiring the applicant to conceal her sexuality or gender identity would conflict with characteristics fundamental to her identity, thus s 5J(3) of the Act was not applicable.

Consequently, the Tribunal was satisfied that the applicant had a well-founded fear of persecution and met the definition of a refugee under s 5H(1)(a) of the Migration Act. The matter was remitted for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.