1906419 (Refugee)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a protection visa. The applicant, a national of Malaysia, arrived in Australia in September 2018 and subsequently applied for a protection visa, which was refused. The applicant was granted a bridging visa and sought review of the Department's decision.

The primary legal issue before the Tribunal was whether Australia owed protection obligations to the applicant under sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth). This involved assessing whether the applicant met the criteria for a refugee visa or, alternatively, the complementary protection criterion, which requires substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, there is a real risk of significant harm. The Tribunal also considered whether section 36(3) of the Act, relating to third country protection, applied.

The Tribunal considered the applicant's claims in light of the 'Refugee Law Guidelines', 'Complementary Protection Guidelines', and country information assessments. It accepted the applicant's identity as a Malaysian national based on her passport. The Tribunal found that section 36(3) did not apply as the applicant did not have the right to enter or reside in a country other than Malaysia. Crucially, the Tribunal concluded that the applicant was not a witness of truth, indicating credibility concerns that underpinned its assessment of her claims.

Ultimately, the Tribunal affirmed the decision under review, concluding that Australia did not have protection obligations in respect of the applicant.