1833267 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning a Malaysian citizen's application for a protection visa. The applicant claimed to be homosexual and feared persecution in Malaysia due to his sexuality, including potential prosecution under Islamic law, social ostracism, and harm from the community and authorities. The delegate had previously refused the visa, finding that while discrimination might occur, the level of harm did not reach the threshold for persecution.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution in Malaysia for reasons of his homosexuality, as defined by section 5J of the *Migration Act 1958* (Cth). Alternatively, if the applicant did not meet the refugee criterion, the Tribunal had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, there was a real risk of the applicant suffering significant harm, pursuant to section 36(2)(aa) of the Act.

The Tribunal considered the applicant's evidence regarding his family's strict Muslim background and their involvement with the Malaysian Islamic Party (PAS), which identifies individuals not living according to Islamic law. It also noted the legal framework in Malaysia, where homosexuality is a crime with potential severe penalties. The Tribunal concluded that the applicant was a Malaysian citizen and that Malaysia was the relevant receiving country. Based on the evidence presented, the Tribunal was satisfied that the applicant met the criteria for being a refugee 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 1958* (Cth).