1835666 (Refugee)

This matter concerned separate protection visa applications made by a husband and wife. The husband, a Malay Muslim from Malaysia, claimed he was harassed by a gang involved in illegal activities and feared for his safety. The wife, a Hindu from Indonesia, did not have specific claims of persecution detailed in the provided text, but her application was considered in conjunction with her husband's. The dispute centred on whether Australia had protection obligations towards the applicants, with the initial refusal of the husband's application being based on the availability of effective protection in Malaysia.

The court was required to determine if the applicants met the criteria for a protection visa, specifically whether they were refugees or faced a real risk of significant harm if returned to their respective countries of origin, as per sections 36(2)(a) and 36(2)(aa) of the *Migration Act 1958* (Cth). This involved assessing the husband's fear of persecution based on his religion and potential membership in a particular social group, and considering the complexities of inter-religious marriage in Malaysia and Indonesia, including recent policy changes regarding the registration of such marriages. The court also had to consider the availability of effective protection in Malaysia and whether the wife, as a member of the same family unit, also qualified for protection.

The court applied the principles of refugee and complementary protection as outlined in the *Migration Act*. It acknowledged that a person may qualify for a visa if they are unable to avail themselves of protection in their home country due to a well-founded fear of persecution or if there are substantial grounds to believe they will suffer significant harm upon removal. The court considered country information regarding syariah law in Malaysia, societal attitudes towards inter-religious marriages, and the legal landscape in Indonesia concerning marriage registration. The court found that the wife was a person in respect of whom Australia had protection obligations under s 36(2)(b) of the Act.

The Tribunal remitted the matter for reconsideration with the direction that the applicants satisfy both s 36(2)(a) and s 36(2)(b) of the *Migration Act*.