1604817 (Refugee)

This matter concerned an application for a protection visa by a non-citizen applicant who claimed to fear persecution from a gang in Malaysia. The applicant alleged that he had been beaten by the gang, reported the incident to the police who refused to assist, and that the gang had a nationwide presence, making it impossible for him to live elsewhere in Malaysia. The Administrative Appeals Tribunal (the Tribunal) was required to consider whether the applicant met the criteria for a protection visa, specifically the refugee criterion under s.36(2)(a) of the *Migration Act 1958* (Cth) and, if not, the complementary protection criterion under s.36(2)(aa).

The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for one of the prescribed reasons under s.36(2)(a), and alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Malaysia, he faced a real risk of suffering significant harm under s.36(2)(aa). The Tribunal also had to consider whether the applicant's failure to attend a scheduled hearing, despite being notified, prevented it from making a decision on the merits of his claims.

The Tribunal noted that the applicant did not attend the scheduled hearing and had not contacted the Tribunal to explain his absence or request an adjournment. Consequently, pursuant to s.426A of the Act, the Tribunal proceeded to make a decision without further action to enable the applicant to appear. The Tribunal then considered the criteria for a protection visa, which requires an applicant to meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). The Tribunal found that there was no suggestion the applicant satisfied s.36(2) on the basis of being a family member of a person who held a protection visa. Therefore, the applicant did not satisfy the criterion in s.36(2).

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