1421191 (Refugee)

The applicant, a citizen of Malaysia, sought review of a decision not to grant him a Protection visa. The applicant had a history of overstaying visas in Australia, including being removed from the country in 2011, before returning on a visitor visa and subsequently a student visa. His student visa was cancelled in May 2014. The applicant claimed he feared persecution in Malaysia due to his alleged involvement in embezzling money from an employer, leading to threats from gangsters hired by the company, and also claimed to be a member of an opposition political party.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Protection visa as defined by section 36 of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). Specifically, the Tribunal had to determine if the applicant was a person in respect of whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by its 1967 Protocol. This required assessing whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, which would make him unable or unwilling to avail himself of the protection of Malaysia.

The Tribunal considered the applicant's claims of fear of harm from gangsters and police corruption in Malaysia, as well as his alleged political affiliations. However, the Tribunal noted that a significant issue for the Department was the applicant's previous deportation, name change, and failure to disclose his prior presence in Australia. The applicant explained his actions by stating he was advised by others to seek a student visa and was unaware of the possibility of applying for a protection visa earlier. Despite these explanations, the Tribunal found that the applicant did not satisfy the criteria for a Protection visa, specifically the requirement under section 36(2)(a) of the Act.

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