1809725 (Refugee)

This matter concerned an appeal by the second named applicant against a decision of the Administrative Appeals Tribunal (the Tribunal) affirming the refusal of his application for a protection visa. The first named applicant, who was the brother of the second named applicant, had also sought a protection visa. The second named applicant’s claims for protection were based on the alleged experiences of harm suffered by his brother and himself in Malaysia due to the actions of "gangster youngsters."

The primary legal issues before the Tribunal were whether the second named applicant was a person in respect of whom Australia had protection obligations under the refugee or complementary protection criteria, or if he was a member of the same family unit as such a person who held a protection visa of the same class. A threshold issue was also whether the first named applicant, whose claims formed the basis of the second named applicant's case, was still in Australia, as a prerequisite for a protection visa.

The Tribunal found that the first named applicant had departed Australia in July 2019 and had not responded to an invitation to address this information, thus failing to satisfy the criterion of being a non-citizen in Australia under section 36(2) of the Migration Act 1958 (Cth). Consequently, the first named applicant could not be granted a protection visa. Regarding the second named applicant, the Tribunal accepted he was a Malaysian citizen and a member of the same family unit as the first named applicant. However, the Tribunal was not satisfied that the second named applicant had a well-founded fear of serious harm, and therefore, his claims for protection were not met.

The Tribunal affirmed the decision under review, meaning the refusal of the protection visa for the second named applicant was upheld.