1700374 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse the applicant, an infant child, a protection visa. The applicant, born in Australia to Malaysian citizen parents, claimed to be stateless and to fear harm in Malaysia due to her parents' migration history, their formal relationship status, her birth registration status, and her status as a returnee. The applicant's parents' marriage in Australia was considered invalid as the father had a living former spouse in Malaysia and had not obtained a divorce. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant held a well-founded fear of persecution in Malaysia for any of the claimed reasons.

The Tribunal considered the applicant's claim of statelessness, acknowledging administrative difficulties in registering her birth with Malaysian authorities in Australia due to the bigamous nature of her parents' relationship. However, the Tribunal drew attention to information regarding Malaysian citizenship laws, specifically provisions in the Federal Constitution of Malaysia concerning the citizenship of children born outside the Federation whose fathers are citizens. The Tribunal noted that registration of birth at a consulate is a pathway to citizenship and that for illegitimate children, references to a father are construed as references to the mother.

The Tribunal concluded that the applicant was not stateless, as the provided information suggested she was entitled to register for Malaysian citizenship, either within Australia or upon return to Malaysia, with her mother able to exercise this right on her behalf. The Tribunal also noted that the applicant's parents had indicated an application for birth registration had been made. Consequently, the Tribunal found that the applicant did not meet the criteria for a protection visa. The decision under review was affirmed.