1729214 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a minor child. The applicant claimed he left Malaysia because he had no one to care for him and needed to be in Australia for his mother to provide care. He asserted that his mother could not return to Malaysia as she was on a protection visa, and that he had no family or friends in Malaysia to look after him, having been abandoned by his carers and his mother's ex-husband.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a protection visa under section 36(2) of the Migration Act 1958 (Cth). This required determining if the applicant was a refugee within the meaning of section 5H of the Act, or if he met the complementary protection criterion under section 36(2)(aa) by facing a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal also had to consider the applicant's mother's claims regarding her ex-husband's actions and the applicant's fear of his father.

The Tribunal considered the applicant's mother's evidence, including her initial claims of abandonment and her ex-husband's absence, and later concessions that she had reconciled with her ex-husband for a period after his arrival in Australia. Crucially, the Tribunal was provided with information under section 424AA of the Act indicating that the applicant's father, with the same name, date of birth, and nationality, had arrived in Australia and had not left the country. The address provided by the father on his own application for review was similar to addresses previously provided by the applicant and his mother. Based on this information, the Tribunal found that the applicant's mother had been untruthful regarding her husband's whereabouts and their reconciliation. The Tribunal concluded that the applicant did not meet the definition of a refugee due to a well-founded fear of persecution, nor did he meet the complementary protection criterion, as the evidence did not establish a real risk of significant harm upon removal.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not meet any of the criteria set out in section 36(2) of the Act.