1900981 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning a protection visa application made by a Malaysian citizen. The applicant claimed to fear persecution in Malaysia due to her sexual orientation as a lesbian and the shame this brought upon her family. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth), which relate to being a refugee or facing significant harm as a necessary and foreseeable consequence of removal to Malaysia, respectively.

The Tribunal considered the applicant's claims regarding her sexual orientation and the potential consequences of her return to Malaysia. The applicant stated that she left Malaysia because her family discovered her relationship with a female partner and felt ashamed, and that her partner's family also threatened to shame her family. However, she also indicated that if she returned now, she would have no freedom and would have to obey her family, and that the harm she feared was mental rather than physical, stemming from having to live secretly and avoid questions about marriage. The Tribunal found the applicant's evidence regarding her sexual orientation to be vague, limited, and contradictory, particularly in relation to her articulation of her feelings, her awareness of societal attitudes towards lesbians in Malaysia, and her past intimate behaviour.

Applying the principles of assessing a well-founded fear of persecution, the Tribunal concluded that the applicant's claims regarding her sexual orientation were not credible. The Tribunal noted the applicant's difficulty in articulating how her claimed sexuality impacted her and found her evidence to be superficial and unpersuasive. Consequently, the Tribunal found that the applicant did not satisfy the criterion of being a refugee under section 36(2)(a). Furthermore, as the applicant did not establish a well-founded fear of persecution, the Tribunal did not consider the complementary protection criterion under section 36(2)(aa) to be met.

The Tribunal affirmed the decision not to grant the applicant a protection visa.