1421144 (Refugee)

This matter concerned an application for review of a decision not to grant the applicant a protection visa. The applicant claimed to be a citizen of Malaysia and had entered Australia in March 2012, but did not lodge his protection application until July 2014. The applicant's claims of past harm involved an altercation at a beach barbecue with a group who were allegedly relatives of a minister, resulting in the applicant and his friend being detained and assaulted.

The primary legal issue before the Tribunal was whether Australia had protection obligations in respect of the applicant, specifically whether he held a well-founded fear of persecution or a real risk of significant harm in Malaysia. The Tribunal was required to consider the applicant's country of nationality, the possibility of protection in a safe third country, and the mandatory considerations under Ministerial Direction No. 56, including relevant policy guidelines and country information.

The Tribunal found that the applicant was a citizen of Malaysia and that Malaysia was his country of nationality and a receiving country for the purposes of a complementary protection assessment. However, the Tribunal noted that there was no evidence of the applicant having a right to enter and reside in any safe third country. Crucially, due to the applicant's non-attendance at his scheduled hearing, his claims could not be elaborated upon or tested. The Tribunal considered the provisions of s. 36(2B) of the Act, which outline circumstances where a real risk of significant harm is not taken to exist, such as where internal relocation is reasonable or the risk is faced by the general population. The Tribunal concluded that the applicant did not satisfy the criterion in s. 36(2) of the Act, as there was no suggestion he met the requirements for a protection visa.

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