1831290 (Refugee)

This matter concerned an application for merits review of a delegate of the Minister's decision to refuse to grant the applicant a protection visa. The applicant arrived in Australia in March 2017 and became an unlawful non-citizen in June 2017. An application for a protection visa was lodged in April 2018, and the applicant has since held bridging visas. The delegate refused the protection visa on 23 October 2018, finding the applicant did not satisfy the criteria under s 36(2)(a) or (aa) of the *Migration Act 1958* (Cth). The applicant sought merits review by the Tribunal, and a hearing was conducted on 8 November 2023.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether Australia had protection obligations towards the applicant because the applicant was a refugee under s 36(2)(a) of the Act, or on complementary protection grounds under s 36(2)(aa). The Tribunal also considered whether the applicant qualified as a member of the same family unit as a person who met these criteria, pursuant to s 36(2)(b) and (c). The assessment of refugee status involved considering whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether effective protection measures were available in the receiving country.

The Tribunal found that the applicant was a citizen of Malaysia and that Malaysia was the country of reference for the assessment. The applicant did not claim gender or gender identity as a basis for protection, and the Tribunal was satisfied that an initial identification of the applicant as female in the application form was a typographical error. While the applicant initially declared no family members were included in the application and that he was making his own claim, he later stated he had siblings, which he had not declared due to not knowing he was required to. The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa under s 36(2)(a) or (aa), nor did he qualify as a member of the same family unit under s 36(2)(b) or (c).

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.