1722505 (Refugee)

The Administrative Appeals Tribunal considered the protection visa applications of two individuals, referred to as the applicant and Applicant 2. The dispute concerned whether these applicants, and by extension their child, faced a well-founded fear of persecution or significant harm if returned to Malaysia. Initially, the applicants claimed fear based on the applicant's alleged involvement with the "yellow shirts" and the Bersih movement, but this claim was later withdrawn due to changes in the Malaysian government. The focus then shifted to the risks associated with their child, Child A, who has a disorder of sex development (DSD).

The legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, specifically whether they had a well-founded fear of persecution for reasons of membership in a particular social group, or under section 36(2)(aa), whether there was a real risk of significant harm as a necessary and foreseeable consequence of their removal to Malaysia. The Tribunal was required to assess the potential risks to the applicants and their child concerning access to medical treatment, education, and potential discrimination in Malaysia due to Child A's DSD.

The Tribunal's reasoning involved a detailed examination of the applicants' revised claims concerning their child's medical condition. While acknowledging the medical evidence presented regarding Child A's DSD and the potential need for ongoing treatment and the possibility of gender identity differences in adulthood, the Tribunal found that the applicants had not established a well-founded fear of persecution. The Tribunal noted that the applicants had not provided sufficient evidence to demonstrate that they, as parents of a child with DSD, constituted a particular social group for the purposes of the Act, nor had they shown a real risk of serious harm or systematic and discriminatory conduct in Malaysia. Furthermore, the Tribunal considered the possibility of internal relocation and the availability of protection within Malaysia, finding that the applicants had not discharged their onus to prove these were not viable options.

Ultimately, the Tribunal affirmed the decision not to grant the applicants protection visas. However, having regard to the applicants' circumstances and the relevant ministerial guidelines, the Tribunal determined that the case should be referred to the Department for consideration by the Minister under the Minister's discretionary powers.