1708542 (Refugee)

The applicant sought review of a decision by the Refugee Tribunal to affirm the refusal of a protection visa. The applicant claimed to have a well-founded fear of persecution from a criminal gang in Malaysia, alleging he had been beaten, blackmailed, and threatened after leaving the gang. He also claimed the gang had links to the authorities and that he had been unable to move within Malaysia or to another country without being found.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which requires a well-founded fear of persecution, or under section 36(2)(aa), which concerns complementary protection due to a real risk of significant harm as a necessary and foreseeable consequence of removal. The Tribunal was required to consider the applicant's claims in light of country information and relevant guidelines, including the Refugee Law Guidelines and Complementary Protection Guidelines.

The Tribunal found that the applicant had failed to establish a well-founded fear of persecution. While acknowledging the applicant's claims of past harm and threats, the Tribunal noted inconsistencies and a lack of detail. Crucially, the applicant admitted to having served a prison sentence for criminal offences, which he had not declared in his visa applications, stating he was confused. The Tribunal also considered that the applicant had lived in Malaysia for two years after his release from prison and before departing for Australia without experiencing further harm from the gang, despite claims of ongoing harassment. The Tribunal noted that country information indicated a crackdown on the gang leader. The Tribunal concluded that the applicant had not demonstrated that he would suffer significant harm as a necessary and foreseeable consequence of removal, nor that he could not access effective protection in Malaysia.

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