1831246 (Refugee)

The case concerned protection visa applications made by two applicants. The dispute centred on the first applicant's claims of fear of harm in Malaysia from her former husband, and the second applicant's claims as a family member. The matter was before the Administrative Appeals Tribunal, which was required to determine whether Australia had protection obligations towards the applicants.

The Tribunal was required to consider whether the first applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically as a divorced woman experiencing gender-based violence, including financial and physical abuse, and online stalking from her ex-husband. The Tribunal also needed to assess whether the claims were raised before the primary decision-maker and if there was a reasonable explanation for any delay, in accordance with section 423A of the Migration Act 1958. Furthermore, the Tribunal had to determine if effective protection measures were available to the applicants in Malaysia.

The Tribunal found that there was a reasonable explanation for the claims not being raised before the primary decision-maker, as the applicants had been assisted by a third party in preparing their applications and had not been interviewed by the delegate. The Tribunal accepted the first applicant's evidence of a pattern of abuse from her ex-husband, including threats, financial control, physical abuse, and ongoing social media harassment. The Tribunal concluded that these circumstances meant the first applicant satisfied section 36(2)(a) of the Migration Act, indicating Australia had protection obligations. The Tribunal also found that the second applicant satisfied section 36(2)(a).

The Tribunal remitted the matter for reconsideration with directions that both the first and second applicants satisfy section 36(2)(a) of the Migration Act.