1733265 (Refugee)

The applicant, a citizen of Malaysia, sought review of a delegate of the Minister for Immigration and Border Protection's decision to refuse her a protection visa. The applicant arrived in Australia in July 2017 and applied for the visa in November 2017, claiming she feared returning to Malaysia due to a past sexual assault by her neighbour and the likelihood of future harm. She also stated her parents did not believe her claims. The delegate refused the application, and the applicant sought review by the Tribunal.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) or (aa) of the Migration Act 1958 (Cth), which relate to Australia's protection obligations under the 'refugee' criterion or 'complementary protection' grounds. This required the Tribunal to assess whether the applicant had established a well-founded fear of persecution or a real risk of significant harm. The Tribunal also considered whether the applicant was a member of the same family unit as a person who met these criteria.

The Tribunal reasoned that it was the applicant's responsibility to specify all particulars of her claim and provide sufficient evidence to establish it, a principle reinforced by section 5AAA of the Act. The Tribunal noted that the applicant had provided limited evidence to the Department in support of her claims and that no record of an interview existed. While the applicant had applied for review and the Tribunal had invited further information, the Tribunal found no information before it that satisfied the statutory criteria for a protection visa, either on refugee or complementary protection grounds, or as a family member of someone who did. The Tribunal also considered a DFAT report in its assessment.

Consequently, the Tribunal affirmed the delegate's decision to refuse the protection visa. The applicant did not satisfy any of the criteria under section 36(2) of the Act.