1605830 (Refugee)

This matter concerned an application for a Protection visa by a Malaysian national. The applicant claimed to be a lesbian who had been in a relationship with another woman in Malaysia. She alleged that her ex-girlfriend's family discovered the relationship, threatened and assaulted her, and that her ex-girlfriend's father, who was allegedly a gang member, would kill her if he found her. The applicant also claimed to have sought police assistance, which was unforthcoming, and that she faced discrimination in another Malaysian city due to her homosexuality. The case was heard by the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether Australia owed protection obligations to the applicant under section 36(2)(aa) of the Migration Act 1958 (Cth), which concerns the complementary protection criterion. This required the Court to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, the applicant would face a real risk of suffering significant harm. The Court also considered whether the applicant met the refugee criterion under section 36(2)(a).

The Court considered the applicant's claims in light of the relevant legislative provisions and Ministerial Directions. It noted that for complementary protection to be engaged, the risk of significant harm must be a necessary and foreseeable consequence of removal. The Court examined the applicant's evidence regarding threats of harm, lack of police intervention, and social stigma. However, the Court found that the applicant's claims, particularly concerning the specific threats and the alleged gang affiliation of her ex-girlfriend's father, lacked sufficient detail and corroboration to establish a real risk of significant harm. The Court also noted the absence of evidence suggesting the applicant had a right to enter and reside in a safe third country.

The Court concluded that the applicant had not established that she met the criteria for the grant of a Protection visa, either under the refugee criterion or the complementary protection criterion. Accordingly, the decision under review, which affirmed the refusal of the visa application, was affirmed.