1804327 (Refugee)

The applicant, a woman of Brunei ethnicity and Muslim faith from Sabah, Malaysia, sought a protection visa in Australia. She claimed to have fled Malaysia due to severe verbal, physical, and sexual abuse by her ex-husband, who allegedly intended to sell her to cover gambling debts. The applicant expressed a fear of her ex-husband finding her if she returned to Malaysia. The delegate refused the visa, finding that the applicant could access state protection and NGO assistance in Malaysia.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether she was a refugee under section 36(2)(a) of the Migration Act 1958, or alternatively, whether Australia had protection obligations under the complementary protection criterion in section 36(2)(aa) due to a real risk of significant harm upon removal to Malaysia. The court also considered whether section 36(3) of the Act, which relates to the obligation to take steps to enter a third country, applied.

The court found that section 36(3) did not apply as there was no evidence the applicant had a right to enter and reside in any other country. The court then remitted the matter for reconsideration, directing that the applicant satisfies section 36(2)(a) of the Migration Act. This implies the court was satisfied that the applicant had a well-founded fear of persecution for reasons of race or religion, and that effective protection measures were not available to her in Malaysia, or that relocation was not reasonable. The court's decision suggests that the applicant's fear of persecution, stemming from her ex-husband's actions and the potential for him to locate her, constituted a well-founded fear of persecution that Australia had protection obligations to address.