1732781 (Refugee)

The applicant, a citizen of Malaysia, sought review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The applicant claimed to be a victim of human trafficking, physical and sexual assault, and feared she would be killed if returned to Malaysia. The applicant also had periods of unlawful residence in Australia and had delayed in applying for protection.

The Federal Court was required to determine whether the applicant had a well-founded fear of persecution for a reason specified in section 5 of the *Migration Act 1958* (Cth), specifically whether she belonged to a particular social group and whether the Malaysian authorities could provide effective protection. The court also considered the impact of the applicant's periods of unlawful residence and delay in applying for protection on her claim.

In its reasoning, the court affirmed the primary decision-maker's findings that the applicant did not establish she belonged to a particular social group, nor that she would face persecution for a Convention reason. The court found that while the applicant had experienced serious harm, she had not demonstrated that this harm was inflicted by the Malaysian state or by non-state actors that the state was unable or unwilling to protect her from. The court also noted that the applicant's periods of unlawful residence and delay in applying for protection, while not determinative, were relevant considerations in assessing the credibility of her claims. The court ultimately found that the applicant had not discharged her onus of proof.

The application for review was affirmed, and the decision to refuse the protection visa was upheld.