1828051 (Refugee)

The applicant, a Malaysian national, sought a protection visa, claiming a well-founded fear of persecution in Malaysia due to his homosexuality. He stated that homosexuality is socially unacceptable in Malaysia, that his family and community would not accept him, and that he risked prosecution and punishment under Malaysian laws prohibiting same-sex relationships. The delegate did not interview the applicant. The Tribunal considered the applicant's claims and evidence, including his submissions detailing the risks faced by LGBTIQ+ individuals in Malaysia and his desire to live openly with his partner without fear of Islamic law or humiliation.

The central 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), specifically whether he was a refugee owing to a well-founded fear of persecution. This required determining if he feared persecution for reasons of membership of a particular social group, if there was a real chance of such persecution upon return to Malaysia, and if that persecution related to all areas of the country. The Tribunal also considered the definition of a "well-founded fear of persecution" under section 5J of the Act, including the concept of "serious harm" and the availability of effective protection measures in Malaysia.

The Tribunal reasoned that the applicant had provided a coherent account of his background and his fear of persecution. It was satisfied that the applicant was a Malaysian citizen and that Malaysia was his receiving country. Crucially, the Tribunal found that the applicant had a well-founded fear of persecution in Malaysia based on his homosexuality, which it considered to be a characteristic fundamental to his identity and conscience, and thus a valid basis for membership in a particular social group under section 5L of the Act. The Tribunal concluded that there was a more than remote chance that the applicant would be at risk of prosecution and punishment under Syariah law, and that state protection was not available to him.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act 1958* (Cth), finding that Australia had protection obligations towards him as a refugee.