1801384 (Refugee)

This matter concerned an application for a protection visa by a Malaysian citizen who arrived in Australia in mid-2017. The applicant sought review of a delegate's decision to refuse her application, having initially applied for protection due to alleged experiences of physical violence and severe neglect by her stepmother in Malaysia. The applicant also claimed a well-founded fear of persecution due to her religion and potential harm from family members, including being an unaccompanied and mentally unwell woman in Malaysia. The case was heard by Amy Faram.

The central legal issue before the Tribunal was whether the applicant qualified for protection obligations under s 36 of the Act and clause 866.221 of Schedule 2 to the Regulations. This required determining if, on account of her religion and/or potential harm from family members, she faced a real risk of being subjected to cruel or inhuman treatment in Malaysia. The Tribunal was also required to consider the applicant's mental health status and her circumstances as an unaccompanied woman in Malaysia, in accordance with Ministerial Direction No. 84 and relevant guidelines.

The Tribunal found the applicant's oral evidence to be credible and compelling, consistent with her written statements and corroborative evidence, including a psychiatrist's report detailing her mental health conditions. The Tribunal was satisfied as to the applicant's identity and considered Malaysia to be the receiving country for the assessment of her protection claims. The applicant's marriage to an Australian man in February 2022 was also a factor, as returning to Malaysia would mean separation from her husband. The Tribunal concluded that the applicant had a well-founded fear of persecution.

The Tribunal decided to remit the decision under review.