1619918 (Refugee)

The applicants, who arrived in Australia on 18 March 2016, sought protection visas. Their claims were based on a fear of harm from the second applicant's family due to their inter-tribal marriage, which was opposed by the family. The dispute centred on whether the applicants met the criteria for a protection visa, either as refugees or by establishing substantial grounds for believing they would suffer significant harm if returned to Malaysia. The case was heard by the Tribunal.

The legal issues before the Tribunal were whether the applicants qualified as refugees under section 36(2)(a) of the Migration Act 1958, or alternatively, whether there were substantial grounds for believing they would suffer significant harm if returned to Malaysia, pursuant to section 36(2)(aa) (the complementary protection criterion). The Tribunal was required to consider the applicants' claims of threats and harassment from the second applicant's family, their reasons for not reporting these incidents to the Royal Malaysian Police, and the availability of effective protection in Malaysia.

The Tribunal considered the applicants' evidence regarding their marriage between different ethnic groups (Dusun and Bajah), the subsequent threats and violence from the second applicant's family, and their relocation within Malaysia and then to Australia. The applicants stated they did not report the threats to the police due to a desire to avoid further inflaming the situation with the second applicant's family and to preserve prospects of reconciliation. However, the Tribunal noted an inconsistency between this explanation and their earlier stated reasons for not reporting, which included the police's perceived inability to provide adequate protection. The Tribunal also considered the possibility of internal relocation within Malaysia and the availability of state protection. Ultimately, the Tribunal was not satisfied that the applicants met the criteria for a protection visa.

The Tribunal affirmed the decision not to grant the applicants protection visas, finding that they did not satisfy the criteria under section 36(2)(a) or section 36(2)(aa) of the Migration Act 1958. Consequently, they were unable to satisfy the further criteria under sections 36(2)(b) or (c) for the grant of the visa.