1707031 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse the applicant, a Malaysian citizen, a protection visa. The applicant claimed to fear returning to Malaysia due to his Christian faith and alleged that he had attracted followers of Islam to Christianity, leading to charges of apostasy and physical assault. The delegate had refused the visa on the basis that the applicant was not a refugee under section 5H(1) of the Migration Act 1958 (Cth) and that there were no substantial grounds to believe he would suffer significant harm upon removal to Malaysia.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether he was a refugee or, alternatively, whether Australia had protection obligations towards him under the complementary protection criterion in section 36(2)(aa) of the Act. This required the Tribunal to assess whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Malaysia, the applicant faced a real risk of suffering significant harm. The Tribunal also had to consider the applicant's claims of past persecution and his fear of future harm in light of the evidence presented.

The Tribunal considered the applicant's oral evidence, which detailed two alleged incidents of physical assault in Malaysia related to his Christian faith. The first involved being beaten and losing teeth after being questioned about his religion, and the second involved being punched and losing another tooth after confirming he was Christian. The Tribunal also had regard to country information reports. Applying the principles that the applicant bears the onus of supplying facts and that a decision-maker is not required to accept all allegations uncritically, the Tribunal assessed the credibility and substance of the applicant's claims. The Tribunal noted that the applicant's claims regarding attracting converts were limited to inviting friends to social church activities.

Ultimately, the Tribunal affirmed the delegate's decision to refuse the protection visa. The Tribunal found that the applicant had not established that he met the criteria for a protection visa, including the complementary protection criterion. The decision implies that the evidence presented did not satisfy the threshold for a real risk of significant harm upon return to Malaysia.