1805144 (Refugee)

The case concerned an Indonesian citizen who applied for a protection visa. The applicant claimed she feared returning to Malaysia due to severe economic conditions, which she believed would lead to psychological, mental, and emotional harm. She also alleged that Malaysian authorities could not protect her due to these economic issues and that she could not relocate within Malaysia because many people died from an inability to afford medication. The decision reviewed was made by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under the "refugee" criterion, specifically whether she had a well-founded fear of persecution as defined by section 5H(1)(a) of the *Migration Act 1958* (Cth), or under the "complementary protection" grounds, meaning there was a real risk of significant harm as a necessary and foreseeable consequence of her removal from Australia to Malaysia, pursuant to section 36(2)(aa) of the Act. The Tribunal also considered whether the applicant qualified as a family member of someone who met these criteria.

The Tribunal found no evidence to support the applicant's claim for protection under the refugee criterion, concluding there was no real chance she would be persecuted if returned to Malaysia, nor that she faced a real risk of significant harm under the complementary protection grounds. Despite this, the Tribunal considered the applicant's circumstances sufficiently unique and exceptional to warrant a referral for Ministerial Intervention under sections 351, 417, and 501J of the Act. This referral was based on compassionate grounds, particularly the applicant's psychological state, the potential for serious, ongoing, and irreversible harm if she returned to Indonesia, and the likely inability of both the applicant and her son to access necessary medical and developmental treatments in Indonesia.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa, as she did not meet the statutory criteria. However, the case was referred to the Department for consideration by the Minister regarding potential intervention powers.