1707780 (Refugee)

This matter concerned an application for a protection visa by a Malaysian national. The applicant claimed to fear persecution in Malaysia due to his participation in a Bersih rally. The Administrative Appeals Tribunal was required to determine whether the applicant met any of the criteria for a protection visa under section 36(2) of the Migration Act 1958, specifically the refugee criterion or complementary protection grounds.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of political opinion, and whether Australia had protection obligations towards him on complementary protection grounds. The Tribunal also had to consider the applicant's credibility and whether he could access effective protection in Malaysia. The Tribunal was directed to consider relevant policy guidelines and country information assessments.

The Tribunal acknowledged the importance of a reasonable approach to credibility but noted that an applicant must satisfy the statutory elements, and allegations are not to be accepted uncritically. While accepting the applicant's identity and Malaysian nationality, the Tribunal formed the view that parts of his evidence should not be accepted. The Tribunal considered the definition of significant harm under section 36(2A) and the circumstances where a real risk of such harm is not taken to exist under section 36(2B). The Tribunal concluded that the applicant did not satisfy the criterion in section 36(2) and that there was no suggestion he met the criteria as a family member of a person who satisfied section 36(2)(a) or (aa).

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.