2018109 (Refugee)

The applicant, a national of Malawi, sought a protection visa. The dispute arose after his visa was cancelled and affirmed, leading to his ongoing immigration detention. The applicant claimed he would face persecution in Malawi due to his status as a gay man, citing the illegality of homosexuality, widespread stigma, harassment, and violence. He also highlighted his limited education, work skills, lack of social support in Malawi, and a history of alcohol and drug use, homelessness, and imprisonment in Australia. The matter was before the Tribunal for reconsideration.

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), specifically whether he was a refugee with a well-founded fear of persecution. This required the Tribunal to assess if he feared persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if there was a real chance of such persecution upon return to Malawi. A secondary consideration was whether he would suffer significant harm under section 36(2)(aa) if removed from Australia, which falls under the complementary protection criterion.

The Tribunal considered extensive country information regarding the legal and social situation for LGBTI individuals in Malawi. It noted that while prosecutions for same-sex acts were suspended, LGBTI persons and men who have sex with men (MSM) remained vulnerable to arrest, abuse, discrimination, and violence from both the community and state actors, including police. The Tribunal found that the applicant's sexual orientation constituted membership of a particular social group, and that the essential and significant reason for potential persecution would be this membership. It concluded that the applicant's limited education, skills, lack of social support, and history of substance abuse cumulatively placed him at a significant disadvantage, making him more vulnerable to serious harm in Malawi. The Tribunal was satisfied that the applicant could not obtain effective state protection and that he could not be expected to conceal his sexual orientation to avoid this risk.

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 has protection obligations towards him as a refugee.