1803786 (Refugee)

This matter concerned an application for review of a decision to refuse protection visas to a mother and her son. The applicant mother, a Malaysian citizen, claimed to fear harm in Malaysia from her former husband, family members, former employer, and money lenders, and also on the basis of her Tamil Indian ethnicity, Hindu religion, and status as a single mother. Her son, born in Australia, was claimed to be stateless and to face harm from his mother's former husband and family, her former employer, money lenders, and also on the basis of his ethnicity, religion, and statelessness. The central issue before the Tribunal was whether either applicant met the criteria for a protection visa under section 36 of the *Migration Act 1958*, specifically whether Australia owed them protection obligations under the "refugee" criterion or "complementary protection" grounds.

The Tribunal was required to determine if the applicants had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, they would suffer significant harm. This involved assessing the applicant son's statelessness, the applicant mother's claims of family violence from her former husband and brother, and whether any feared harm was for an essential and significant reason as defined by the Act, or if state protection would be discriminatorily withheld. The Tribunal also considered whether the applicants could reasonably relocate within Malaysia or obtain adequate protection from Malaysian authorities.

The Tribunal accepted the applicant mother's evidence that her son was stateless, as he had been unable to obtain a Malaysian passport due to her not being legally divorced from her first husband, preventing her from proving a marriage to her son's father. The Tribunal found that while the applicant mother and son faced a real chance of serious harm from the former husband and brother, this harm was motivated by personal relationships rather than race, religion, nationality, or political opinion. However, the Tribunal was satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, there was a real risk they would suffer significant harm, constituting cruel, inhuman, or degrading treatment or punishment, and that relocation or state protection would not be adequate.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicants satisfied the criterion under section 36(2)(aa) of the *Migration Act 1958*, which pertains to complementary protection.