1607223 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, a Malaysian national, claimed to have fled Malaysia due to his involvement with the Bersih group, an organisation opposing the Malaysian electoral system. He asserted that upon return to Malaysia, he would face arrest, imprisonment, and a heavy fine, and that the Malaysian authorities were actively seeking him. The applicant also contended that he could not rely on state protection as the police were aligned with the government and that relocation within Malaysia would not offer safety.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether Australia owed him protection obligations. This involved assessing the applicant's claims against the relevant provisions of the Act, including the refugee criterion under s.36(2)(a) and the complementary protection criterion under s.36(2)(aa). The Tribunal was required to consider the meaning of "significant harm" and the circumstances under which a real risk of such harm would not be found, as outlined in ss.36(2A) and (2B). In making its determination, the Tribunal was mandated to take into account Ministerial Direction No. 56, including relevant policy guidelines and country information assessments prepared by the Department of Foreign Affairs and Trade.

The Tribunal's reasoning focused on evaluating the applicant's claims in light of the provided country information. While acknowledging that some high-profile opposition figures in Malaysia have faced legal harassment, detention, and prosecution, the Tribunal noted that the Department of Foreign Affairs and Trade assessed that ordinary opposition party members could generally undertake political activities, with only a low risk of official discrimination. The country information also indicated that while interparty and societal violence had occurred, particularly around elections, such incidents were not a common daily occurrence, and individuals with political affiliations did not live in daily fear of violence. Crucially, the applicant failed to provide any further evidence or submissions to substantiate his claims, despite being given opportunities to do so.

Ultimately, the Tribunal concluded that the decision under review should be affirmed. This meant that the applicant's application for a protection visa was refused.