1513907 (Refugee)

The applicants, who are Malaysian nationals of ethnic Chinese descent, sought protection visas in Australia. They claimed to fear returning to Malaysia due to alleged governmental policies that discriminate against Chinese Malaysians, asserting that the Malaysian government would not protect them. The applicants had been in Australia for 17 years and considered it their home, wishing to remain with an Australian citizen family member.

The primary legal issues before the Tribunal were whether the applicants had a well-founded fear of persecution for one or more of the five prescribed reasons under section 5J(1) of the Migration Act 1958, or, alternatively, whether there were substantial grounds to believe that, as a necessary and foreseeable consequence of their removal to Malaysia, they faced a real risk of suffering significant harm, as defined by section 36(2)(aa).

The Tribunal considered the applicants' claims in light of relevant policy guidelines and country information, as mandated by Ministerial Direction No. 56. It applied the principle that the onus rests on the applicant to satisfy the Tribunal of the statutory elements of their claim, and that mere assertion of fear does not establish its genuineness or well-foundedness. The Tribunal found that the applicants had not satisfied the criteria for a well-founded fear of persecution under section 36(2)(a) or the complementary protection criterion under section 36(2)(aa).

Consequently, the Tribunal affirmed the decision not to grant the applicants protection visas, as they failed to meet the requirements of either section 36(2)(a) or 36(2)(aa) of the Migration Act 1958.