1702839 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant who arrived in Australia from Malaysia and sought a Protection Visa. The applicant claimed to have been declared bankrupt in Malaysia, leading to the freezing of his assets and loss of employment. He further alleged that he borrowed money from loan sharks to settle his debts but was unable to repay them due to his unemployment. The applicant claimed he was subsequently blackmailed and threatened by these loan sharks, and that his attempts to seek assistance from the police were unsuccessful. He also stated that he did not relocate within Malaysia due to limited job opportunities and the belief that the loan sharks would find him regardless of his location until his debts were cleared.

The primary legal issue before the Tribunal was whether Australia owed protection obligations to the applicant under the Migration Act 1958 (Cth). This involved assessing whether the applicant met the criteria for a Protection Visa, specifically under section 36(2)(a) concerning a well-founded fear of persecution, or under section 36(2)(aa) relating to complementary protection obligations due to a real risk of significant harm upon removal from Australia. The Tribunal was required to consider the applicant's claims in light of relevant country information and policy guidelines.

The Tribunal accepted the applicant's identity and nationality as Malaysian. In its reasoning, the Tribunal noted that if a person does not meet the refugee criterion in s.36(2)(a), they may still qualify if Australia has protection obligations under the complementary protection criterion in s.36(2)(aa). This criterion requires substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of significant harm. The Tribunal considered the definitions of "significant harm" and the circumstances under which a person would not be taken to face such a risk, including the availability of effective protection measures and the reasonableness of relocation within the receiving country. The Tribunal also had regard to Ministerial Direction No. 56 and relevant departmental guidelines.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Protection Visa. The Tribunal found that the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth), and there was no suggestion that he satisfied the criteria based on family membership.