1706782 (Refugee)

The applicant, a citizen of Malaysia, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear harm from illegal moneylenders in Malaysia due to an outstanding debt. The Administrative Appeals Tribunal had affirmed the Minister's decision, finding that the applicant would not be at risk of persecution or serious harm if returned to Malaysia, as adequate protection was available from the Malaysian authorities.

The primary legal issue before the court was whether the Tribunal erred in finding that the Malaysian authorities would provide effective protection to the applicant against the alleged threat from illegal moneylenders. This involved considering whether the Tribunal had adequately assessed the evidence regarding the prevalence and effectiveness of law enforcement responses to loan sharking in Malaysia, and whether the applicant's specific circumstances were such that they would be denied protection.

The court analysed the Tribunal's findings in light of the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), particularly concerning the assessment of risk and the availability of state protection. The court considered whether the Tribunal had properly applied the principles established in cases concerning the assessment of protection claims, including the need to consider the real chance of harm and the capacity of the state to prevent or mitigate that harm. The court found that the Tribunal had failed to adequately consider certain evidence relating to the applicant's specific circumstances and the limitations of state protection in addressing the threat posed by illegal moneylenders.

The court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.