1514798 (Refugee)

This matter concerned an application for a protection visa by a Malaysian national who claimed to fear harm from loan sharks due to unpaid debts, and also claimed to be gay and fear harm on that basis. The applicant arrived in Australia in May 2015 and made his claims in a statutory declaration in May 2016. The Tribunal was required to assess the credibility of the applicant's claims in light of the evidence presented and relevant country information.

The legal issues before the Tribunal were 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, or whether he would suffer significant harm as a necessary and foreseeable consequence of removal to Malaysia, thereby satisfying the complementary protection criterion. This involved assessing the applicant's credibility, the plausibility of his claims regarding loan sharks and the Malaysian police, and the veracity of his claim to be gay in the context of Malaysian society and the availability of protection.

The Tribunal found the applicant not to be a credible witness. This conclusion was based on significant inconsistencies in his evidence regarding whether he had approached the police, the conflicting reasons provided for not reporting the loan shark activities, and the late disclosure of his claimed homosexuality. The Tribunal gave greater weight to the Department of Foreign Affairs and Trade's assessment of the Malaysian police as professional and effective, and noted that country information indicated police action against loan sharks. Furthermore, the Tribunal found it implausible that the applicant, if gay, would be unaware of gay venues in Kuala Lumpur and would not have raised this claim earlier in the application process or during hearings, particularly after being encouraged to disclose all relevant information.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criterion under section 36(2) of the Migration Act 1958. There was no suggestion that the applicant satisfied the criteria based on being a family member of a person who held a protection visa.