1706658 (Refugee)

The applicant sought review of a decision not to grant him a protection visa. The dispute concerned whether the applicant had a well-founded fear of persecution in Malaysia due to alleged threats from a money lender and bribery of police, or whether there was a real risk of significant harm upon removal to Malaysia.

The court was required to determine if the applicant had a well-founded fear of persecution for one of the five prescribed reasons under s.5J(1) of the Migration Act 1958, and if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Malaysia, he faced a real risk of suffering significant harm. The court also considered the meaning of "significant harm" as defined in s.36(2A) and the circumstances under which a person would not be considered to face such a risk, as outlined in s.36(2B).

The court accepted that the applicant had borrowed money from an illegal money lender and experienced some difficulty in repayment, leading to demands and fear of harm. However, based on the applicant's evidence, the court did not accept that he or his family had been physically harmed by the money lender, nor that the fear of serious harm from the money lender was the reason for his departure or a real chance upon return. The court found that the applicant's financial difficulties were the primary driver for coming to Australia to earn money, and that he had substantially repaid the debt, mitigating future risk. Regarding the encounter with police, the court accepted that the applicant had paid a bribe to avoid charges for possession of marijuana but was not satisfied that police maintained any current interest in him or that this incident constituted serious harm.

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