1815535 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, an ethnic Malay Muslim from Malaysia, arrived in Australia with her same-sex partner. The core of the dispute concerned whether the applicant had a well-founded fear of persecution in Malaysia due to her identity as a Muslim lesbian and her same-sex relationship, and whether Australia had protection obligations towards her.

The Tribunal was required to determine if the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, specifically whether she was a refugee with a well-founded fear of persecution for reasons of race, religion, or membership of a particular social group. This involved assessing the availability of state protection in Malaysia for individuals in same-sex relationships and for Muslims who identify as lesbian, and whether the applicant's fear of persecution was well-founded and related to all areas of Malaysia.

The Tribunal found that the applicant and her partner were in a committed same-sex de facto relationship since December 2012, supported by extensive evidence including identity documents, joint lease agreements, financial records, and personal communications. It accepted that in Malaysia, LGBT persons face pervasive discrimination, illegality, and a lack of protection. The Tribunal concluded that the applicant had a well-founded fear of persecution as a Muslim lesbian in Malaysia, and that effective state protection was not available to her. Consequently, the Tribunal was satisfied that Australia had protection obligations towards the applicant under section 36(2)(a) of the Act.

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