2317142 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, who identifies as non-binary/Genderqueer and pansexual/Queer, claimed to have a well-founded fear of persecution in Malaysia due to their gender identity and sexual orientation. The dispute centred on whether the applicant met the criteria for a protection visa under Australian migration law.

The primary legal issue before the Tribunal was to determine if the applicant qualified as a refugee under Article 1A(2) of the 1951 Refugee Convention and the 1967 Protocol, as incorporated into section 36(2)(a) of the Migration Act. This required assessing whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically the LGBTQI+ community in Malaysia, and whether such persecution would be for reasons of their gender identity and sexual orientation. The Tribunal also considered, in light of Ministerial Direction No. 84, relevant Refugee Law Guidelines, Complementary Protection Guidelines, and country information.

The Tribunal reasoned that the applicant constituted a particular social group due to their gender identity and sexual orientation, which were not accepted by their devoutly Islamic family, school, and community in Malaysia. It found that the applicant's experiences of social pressures, family violence, and the prevalent homophobic views in Malaysia, exacerbated by the influence of the Muslim religion, created a moderate risk of official and societal discrimination. The Tribunal was satisfied that these factors gave rise to a well-founded fear of persecution, meaning Australia had protection obligations under the Refugees Convention.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion set out in section 36(2)(a) of the Migration Act.