1608839 (Refugee)

The applicant, a Chinese Malaysian man, sought a protection visa in Australia after remaining in the country unlawfully for 12 years following the expiry of his initial visa. He claimed to fear serious harm or death if returned to Malaysia due to harassment from loan sharks and alleged collusion between the police and criminal gangs. The primary decision-maker had granted a bridging visa and noted that the applicant did not claim to fear harm for reasons specified in the *Migration Act 1958* (Cth), concluding that Malaysian authorities had measures in place to combat violent crime and could provide effective protection.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act*, which requires a well-founded fear of persecution for specific reasons, or under section 36(2)(aa), the complementary protection criterion, which requires substantial grounds for believing there is a real risk of significant harm as a necessary and foreseeable consequence of removal. The Tribunal also considered the applicant's explanation for the significant delay in applying for protection and the credibility of his claims, particularly regarding his inability to obtain a replacement passport.

The Tribunal found that the applicant did not satisfy the refugee criterion under section 36(2)(a) as his claimed fear of harm from loan sharks and police corruption did not align with the prescribed grounds for persecution under the Act. Furthermore, the Tribunal was not satisfied that the applicant faced a real risk of significant harm under the complementary protection criterion. This conclusion was influenced by the applicant's prolonged and unexplained delay in seeking protection, his inconsistent and unconvincing explanations for his inability to obtain a passport, and the assessment that Malaysian authorities were willing and able to provide effective protection against the type of harm he claimed to fear. The Tribunal also noted that a section 438 certificate, which purported to prevent disclosure of certain information, was invalid as the stated reasons for non-disclosure were not legally sufficient.

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