1733097 (Refugee)

This matter concerned a protection visa application made by two applicants, identified as mother and daughter, who claimed to be citizens of Malaysia. The dispute arose when the delegate of the Minister for Home Affairs refused their application, finding that they did not meet the criteria for a protection visa under section 36(2)(a) or (aa) of the *Migration Act 1958* (Cth), nor were they members of the same family unit as a person in respect of whom Australia had protection obligations. The applicants sought review of this decision before the Tribunal.

The Tribunal was required to determine whether either applicant qualified as a refugee or was entitled to complementary protection, and if so, whether they constituted a family unit for the purposes of the visa application. Specifically, the Tribunal had to assess whether the first applicant, a self-identified homosexual woman of boyish appearance, had a well-founded fear of persecution in Malaysia due to her sexual orientation, considering the legal, religious, and societal disapproval of homosexuality in that country. The Tribunal also needed to consider whether the second applicant, as the mother of the first applicant, was a member of the same family unit and thus eligible for a visa based on her daughter's potential eligibility.

The Tribunal found that while the applicants had provided consistent evidence of their mother-daughter relationship, it was not satisfied that the second applicant met the criteria for protection in her own right. However, it was satisfied that the second applicant was the mother of the first applicant and a member of the same family unit. The Tribunal concluded that the first applicant satisfied the criteria for being a refugee under section 36(2)(a) of the *Migration Act*, based on a well-founded fear of persecution for reasons of membership of a particular social group. Consequently, the Tribunal remitted the matter for reconsideration, directing that the first applicant be found to satisfy section 36(2)(a) and the second applicant to satisfy section 36(2)(b)(i) as a member of the same family unit.