1811319 (Refugee)

The case involved two applicants for a protection visa who claimed they feared harm from their families in Malaysia due to their disapproval of the applicants' marriage. The applicants asserted that their families had threatened to kill them and had hired someone to separate them, leading them to flee to Australia shortly after their marriage. They also contended that Malaysian authorities would not provide assistance, viewing the matter as personal, and that internal relocation was not a viable option due to their families' ability to locate them.

The primary legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or under section 36(2)(aa), which concerns complementary protection obligations due to a real risk of significant harm upon removal to a receiving country. The Tribunal was required to consider the availability of effective state protection in Malaysia and the possibility of internal relocation as potential mitigating factors against a finding of a real risk of harm.

The Tribunal considered the applicants' claims in light of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines'. It noted that the applicants' fear stemmed from their families' disapproval of their marriage, which could potentially fall within the definition of a "particular social group" under the Act. However, the Tribunal found that the applicants had not established that they would face persecution for reasons outlined in section 5J(1)(a) of the Act, nor had they demonstrated that effective protection measures were unavailable in Malaysia or that internal relocation was unreasonable. The Tribunal also considered section 36(3) of the Act, which precludes protection obligations if a non-citizen has not taken all possible steps to avail themselves of a right to enter and reside in a third country, finding it did not apply in this instance.

Ultimately, the Tribunal remitted the matter for reconsideration with a direction that the applicants satisfy the criteria under section 36(2)(a) of the Migration Act.