1610032 (Refugee)

This matter concerned an application for a protection visa by a Malaysian national. The applicant claimed to fear harm from a triad organisation due to an extramarital affair and significant debts owed to loan sharks. The applicant also alleged that his children had been threatened and that the Malaysian police had ignored his requests for help. The Delegate of the Department of Immigration found that the applicant's fears did not fall within the criteria for protection under section 5J(1)(a) of the Act, being satisfied that Malaysian authorities could provide adequate protection. The applicant subsequently appealed this decision to the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, either under the refugee convention (s.36(2)(a) of the Act) or the complementary protection criterion (s.36(2)(aa) of the Act). This involved assessing the applicant's claims of fear of harm from a triad organisation and loan sharks, and determining if there was a real risk of significant harm if he were returned to Malaysia, considering the capacity of Malaysian authorities to provide protection. The Tribunal was also required to consider policy guidelines and country information relevant to protection status determinations.

The Tribunal considered the applicant's evidence, which evolved during the proceedings, noting inconsistencies and changes in his account. While initially claiming no police contact, the applicant later admitted to having had dealings with the police. He also provided a revised explanation for the discrepancies in his application, attributing them to the person who assisted him in drafting it. The Tribunal noted the applicant's significant debts and his claims of threats from gang members, but also observed that the applicant was sending money from Australia to pay off these debts and that his wife was also contributing to their repayment. The Tribunal ultimately found that the applicant had not established a well-founded fear of persecution for a convention reason, nor had he demonstrated a real risk of significant harm as a necessary and foreseeable consequence of removal to Malaysia under the complementary protection criterion.

The Tribunal affirmed the Delegate's decision, finding that the applicant had not satisfied the criteria for the grant of a protection visa. The applicant's claims regarding the triad organisation and loan sharks were not substantiated to the required standard, and the Tribunal was not satisfied that the Malaysian authorities were unable or unwilling to protect him from the feared harm.