1802771 (Refugee)

The Administrative Appeals Tribunal considered the protection visa application of a transgender Muslim man from Malaysia. The applicant arrived in Australia in September 2017 and applied for a Protection visa, which had been refused by the Department. The applicant's claims were initially assessed on political and economic grounds, with the Department finding that Malaysian authorities would provide effective protection and that economic harm did not constitute serious or significant harm. However, the applicant later provided a statement indicating his partner had lodged the application without his full knowledge of its contents and that his claims were not accurately represented. He stated he identifies as male and had been transitioning since January 2019, having previously delayed due to safety and family concerns.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as a refugee, or alternatively, under the complementary protection provisions of section 36(2)(aa) due to a real risk of significant harm upon removal to Malaysia. The Tribunal was required to assess the applicant's claims of persecution based on his identity as a transgender Muslim man, considering the country information regarding Malaysia, and to determine if effective protection measures were available to him. A key aspect of the assessment involved the applicant's assertion that his partner had prepared the application without his full understanding, and his subsequent clarification of his personal circumstances and fears.

The Tribunal found that the applicant was a citizen of Malaysia, and therefore Malaysia was the relevant country of reference. It considered the applicant's evidence, including his transition, his experiences of harassment from family, neighbours, and the public, and the criminalisation and discrimination faced by transgender individuals in Malaysia. The Tribunal also had regard to country information and the provisions of the *Migration Act* concerning the definition of a refugee and significant harm. Crucially, the Tribunal concluded that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Act.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act*.