1612216 (Refugee)

This matter concerned an application for a Protection (Class XA) visa by a Malaysian national of Chinese ethnicity. The applicant claimed to have attended a BERSIH 4.0 rally in Kuala Lumpur on 30 August 2015, after which she allegedly faced threats and physical assault from individuals who questioned her participation as a Chinese Malaysian. She asserted a fear of returning to Malaysia due to these events and the possibility of further retribution. The case was heard by Member Lilly Mojsin of the Administrative Appeals Tribunal.

The primary 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 1958, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or alternatively, under section 36(2)(aa), which concerns complementary protection based on a real risk of significant harm upon removal to a receiving country. The Tribunal was required to assess the applicant's credibility and the evidence presented in light of the relevant legislative provisions and policy guidelines.

The Tribunal considered the applicant's account of attending the rally and the subsequent alleged threats and assault. However, the Tribunal noted inconsistencies in the applicant's statements regarding her employment and her recollection of certain events, leading to credibility concerns. The Tribunal also examined the definition of "significant harm" and the circumstances under which a person is taken not to face a real risk of such harm, including the availability of effective protection measures in the receiving country. After reviewing the evidence and the legal framework, the Tribunal found that the applicant did not satisfy the criterion under section 36(2)(a) as a refugee, nor did she satisfy the complementary protection criterion under section 36(2)(aa).

Consequently, the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa. The Tribunal concluded that there was no suggestion that the applicant satisfied the criteria for a protection visa, either as a refugee or on complementary protection grounds, or as a family member of someone who did.