1417639 (Refugee)

The Administrative Appeals Tribunal considered the protection visa applications of two applicants, where the first applicant claimed fear of harm upon return to Malaysia due to his Chinese ethnic extraction. The second applicant sought protection solely as a member of the first applicant's family unit. The core of the dispute revolved around the first applicant's assertion that Chinese individuals in Malaysia face unequal treatment and discrimination, leading to a well-founded fear of harm.

The Tribunal was required to determine whether the applicants met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth). Specifically, the Tribunal had to assess whether the first applicant had a well-founded fear of persecution for a Convention reason, and whether Australia owed protection obligations to either applicant. In making this assessment, the Tribunal was mandated to consider relevant Ministerial Directions, including policy guidelines from the Department of Immigration and country information assessments from the Department of Foreign Affairs and Trade.

The Tribunal reasoned that the applicant's claims of discrimination against ethnic Chinese in Malaysia, including preferential treatment for Malays in areas such as business and government interactions, did not establish a well-founded fear of persecution for a Convention reason. While acknowledging that some differential treatment might exist, the Tribunal concluded that the evidence presented did not demonstrate a systematic or severe level of harm that would engage Australia's protection obligations. The Tribunal found that the applicant had not satisfied the criterion under section 36(2)(a) or (aa) for a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicants protection visas, as they failed to meet the necessary criteria for such a visa.