1718335 (Refugee)

This matter concerned an application for a protection visa by an infant applicant, born in Australia, whose parents were also seeking protection. The applicant's claims for protection were based on the alleged danger to his father's life if the family were to return to Malaysia, and the mother's family's alleged threat to kill the applicant. The Administrative Appeals Tribunal (AAT) considered the applications of the infant and his two siblings together with those of their parents, having heard evidence and submissions on 10 July 2018.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for one or more of the five prescribed reasons under section 5J(1) of the Migration Act 1958 (Cth), and if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, the applicant faced a real risk of suffering significant harm, as defined by section 36(2)(aa) of the Act. The Tribunal was required to consider policy guidelines and country information assessments prepared by relevant government departments.

The Tribunal noted that the applicant, being an infant born in Australia, had not been to Malaysia. It relied on the father's evidence that the parents intended to care for their children and had no intention of them returning to Malaysia alone. The Tribunal found that the applicant did not satisfy the criterion under section 36(2) of the Act, which relates to being a member of the same family unit as a person who holds a protection visa. Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.