1731551 (Refugee)

This matter concerned the review of a decision regarding protection visas for [Applicant A] and [Applicant B], who are in a same-sex marriage. [Applicant A] initially applied for a protection visa based on general economic and political difficulties in Malaysia, without claiming fear of harm or discrimination due to her sexuality. However, during the review process, her representative provided additional information asserting that [Applicant A], as a Muslim lesbian in Malaysia, feared religious persecution and criminalisation due to her sexuality and her marriage to [Applicant B], a Christian. The applicants resided together in Victoria, and submissions highlighted Malaysia's treatment of the LGBT community, including potential punishments of jail and public caning, and the legal implications for their interfaith same-sex marriage.

The central legal issue before the Tribunal was whether [Applicant A] and [Applicant B] faced a real chance or risk of significant harm on the basis of their sexuality upon return to Malaysia. This required the Tribunal to consider the definition of "refugee" under section 36(2)(a) of the *Migration Act 1958* (Cth), which involves a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also had to consider the complementary protection criterion under section 36(2)(aa), which applies if there is a real risk of significant harm as a necessary and foreseeable consequence of removal.

The Tribunal noted that [Applicant A]'s claim regarding her sexuality was raised late in the process, which was a preliminary concern. However, it found her explanation for the omission plausible, particularly given that her marriage occurred several years prior to the revised claims and her partner, [Applicant B], had consistently claimed to be a lesbian. The Tribunal was satisfied that Malaysia was the receiving country for both applicants. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration, directing that [Applicant A] satisfied the criterion under section 36(2)(a) of the *Migration Act*. The Tribunal also observed that [Applicant B] would equally satisfy the alternative criterion as a member of the same family unit as her wife.