1700813 (Refugee)

This matter concerns an application for a protection visa by a Malaysian woman and her son. The applicants are of Hindu Tamil Indian ethnicity. The applicant arrived in Australia in December 2011 on a visitor visa, which ceased in March 2012, after which she remained in Australia unlawfully. She applied for a protection visa on 17 July 2014. The Tribunal accepted the applicant's identity and confirmed she is a citizen of Malaysia, which was also considered her receiving country for protection assessments.

The primary legal issue before the Tribunal was whether the applicant had established a claim for protection under the Act. This involved assessing whether there was a real risk that she would suffer significant harm if returned to Malaysia. The Tribunal was required to consider the provisions of s.36(2B) of the Act, which outline circumstances where a real risk of significant harm is not taken to exist, including the availability of reasonable relocation within Malaysia, the possibility of obtaining protection from Malaysian authorities, or if the risk is faced by the general population and not personally by the applicant. The Tribunal also considered Ministerial Direction No. 84, the 'Refugee Law Guidelines', and the 'Complementary Protection Guidelines'.

In its reasoning, the Tribunal applied principles regarding credibility assessments, noting that while asylum seekers who are generally credible but unable to substantiate all claims should be given the benefit of the doubt, it is not required to accept all allegations uncritically or to have rebutting evidence before making an adverse finding. The Tribunal found that there was no evidence before it to suggest that the applicant had a right to enter and reside in a third country, a relevant consideration under s.36(3) of the Act. The Tribunal also considered the definition of "member of the same family unit" as provided in s.5(1) of the Act and r.1.12 of the Regulations, which includes children.