1622064 (Refugee)

The applicant, Mr A, an ethnic Chinese individual from Malaysia, sought a protection visa. He claimed to have faced mistreatment and discrimination due to his ethnicity, including a dispute with a client that escalated to government officials revoking his business license and making derogatory remarks about ethnic Chinese people. Mr A contended that this persecution prevented him from finding work in Malaysia and that ethnic Chinese individuals lacked the same economic rights and government assistance as ethnic Malays.

The primary legal issues before the court were whether Mr A met the criteria for a protection visa as a refugee under section 36(2)(a) of the Migration Act 1958, or alternatively, on complementary protection grounds under section 36(2)(aa). This involved determining if Mr A had a well-founded fear of persecution for reasons of his race, or if there was a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia to Malaysia. The court also considered the definition of "significant harm" and the circumstances under which a person would not be taken to face such a risk, as outlined in sections 36(2A) and (2B) of the Act.

The court found that Mr A's claims did not establish a well-founded fear of persecution for reasons of his race. While acknowledging that ethnic Chinese individuals in Malaysia may face some disadvantages, the court concluded that the single incident described by Mr A, involving a dispute over payment and alleged racially derogatory language, did not amount to persecution. The court questioned the plausibility of the official communication regarding the license suspension and noted that Mr A could only cite this one instance of alleged discrimination. Consequently, Mr A did not satisfy the criteria for a protection visa under section 36(2)(a).

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