1730513 (Refugee)

The applicant, a Malaysian national, sought a protection visa, claiming fear of persecution in Malaysia. The dispute concerned whether the applicant met the criteria for a protection visa, specifically the definition of a refugee and the risk of significant harm upon return. The matter was heard by C. Packer, a Member of the Tribunal.

The court was required to determine if the applicant, identifying as a lesbian and married to a transgender man, had a well-founded fear of persecution in Malaysia. This involved assessing whether LGBTI individuals in Malaysia constitute a "particular social group" under the Migration Act 1958, and if the applicant faced a real risk of serious harm, including physical harassment, ill-treatment, humiliation, denial of basic services, or inability to earn a livelihood, due to her identity and relationship status. The court also had to consider whether effective state protection was available to the applicant in Malaysia.

The court reasoned that LGBTI individuals in Malaysia form a particular social group due to shared characteristics that are fundamental to their identity and distinguish them from the wider society. Applying country information, which indicated widespread societal and official disapproval of LGBTI identities and behaviours, including criminalisation of same-sex acts and harassment of transgender individuals, the court found a real chance of serious harm. The court accepted the applicant's evidence regarding her lesbian identity and her marriage to a transgender man, concluding that these factors, combined with the country conditions, meant she would likely face significant harm and be unable to access effective state protection.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958, meaning she is a person in respect of whom Australia has protection obligations because she is a refugee.