1826409 (Refugee)

The applicant, a woman from Malaysia, sought a protection visa in Australia. She claimed to be a lesbian, a practicing Muslim, and in a committed same-sex relationship. She alleged that due to her sexual orientation, she had experienced verbal abuse, sexual harassment, and rape in Malaysia, and feared further harm, including forced marriage, if returned. The delegate refused her visa application, not accepting her claims of being a lesbian, her relationship, or her experiences of harm. The applicant subsequently applied to the Tribunal for review of this decision.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. A secondary issue, relevant if the first criterion was not met, was whether she qualified for complementary protection under section 36(2)(aa) due to a real risk of significant harm upon removal from Australia. The Tribunal was also required to consider the definition of "membership of a particular social group" and the availability of "effective protection measures" in Malaysia.

The Tribunal considered the applicant's evidence, including statutory declarations, relationship documents, and social media materials, in light of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines'. It found that the applicant's fear of persecution was well-founded, specifically for her membership in the particular social group of lesbians in Malaysia. The Tribunal determined that she was unable to avail herself of the protection of Malaysia because effective protection measures were not available to her, and that she could not be expected to take reasonable steps to avoid persecution, such as concealing her sexual orientation, as this would conflict with a characteristic fundamental to her identity.

The Tribunal was satisfied that the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act*. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies this criterion.