1616299 (Refugee)

The applicant, a Malaysian of Chinese ethnicity, sought a protection visa in Australia. He claimed to have suffered racial discrimination and violence at school from Malay students, including being attacked and denied a scholarship due to his ethnicity. He also asserted that upon return to Malaysia, he would face continued harassment and violence from Malay gangsters, and that the government would not protect him because he is Chinese.

The primary legal issue before the court was whether the applicant had a well-founded fear of persecution for reasons of race, as defined by the Migration Act 1958, or if he met the complementary protection criterion due to a real risk of suffering significant harm if returned to Malaysia. This involved assessing the credibility of his claims and determining if the alleged harm constituted persecution or significant harm, and whether effective protection measures were available in Malaysia.

The court considered the applicant's evidence, including supplementary information provided at the hearing which clarified the circumstances of an assault. It noted that the applicant's claims of being attacked by Malay students and facing threats were not substantiated to the standard required for a well-founded fear of persecution. The court found that the applicant had not demonstrated that the alleged harm was systematic and discriminatory conduct, nor that it involved serious harm as defined by the Act. Furthermore, the court considered whether the applicant could reasonably relocate within Malaysia or access state protection, and concluded that he had not established a real risk of persecution or significant harm that would warrant the grant of a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria under section 36(2) of the Migration Act 1958.