2302428 (Refugee)

This case concerned an application for a protection visa by a mother and her child, who claimed they would face persecution if returned to Malaysia. The applicants alleged that the first applicant had suffered family violence from her former fiancé and his family, who denied paternity of their child and made threats. The applicants also claimed that Malaysian police would not offer protection, viewing the matter as a private family issue.

The court was required to determine whether the applicants met the criteria for a protection visa, specifically the "refugee criterion" under section 36(2)(a) of the Act, and alternatively, the "complementary protection criterion" under section 36(2)(aa). This involved assessing whether the first applicant was a member of a particular social group, whether she and her child had a well-founded fear of persecution, and whether such persecution would relate to all areas of Malaysia.

The court found that the first applicant was a member of the particular social group "single mothers who have suffered family violence," and the second applicant was a member of the group "child of a single mother who is being pursued by her biological father along with her mother." While the court accepted that there was a real chance the applicants would be persecuted by the former fiancé and his family, it was not satisfied that this risk extended to all areas of Malaysia. The court reasoned that the fiancé and his family likely lacked the resources or motivation to locate the applicants throughout the entire country. Consequently, the applicants did not meet the definition of "refugee" under section 5H(1) and therefore did not satisfy the refugee criterion.

As the applicants did not meet the refugee criterion, the court then considered the complementary protection criterion. This required determining whether, as a necessary and foreseeable consequence of removal to Malaysia, there was a real risk that the applicants would suffer significant harm, as defined by section 36(2A) of the Act. The court's decision on this criterion is not detailed in the provided text, but the case was remitted for further consideration.