1711135 (Refugee)

The Administrative Appeals Tribunal considered the case of a Malaysian citizen who sought a protection visa in Australia. The applicant's claims for protection at the hearing differed significantly from those made in his initial application. He had arrived in Australia on a visitor visa in October 2016 and subsequently married a Malaysian national in Australia, with whom he has a child and cares for her two children from a previous relationship. The applicant had also departed Malaysia while on bail for criminal charges, having pleaded guilty to two charges with a third pending.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under the 'refugee' criterion, or alternatively, under the 'complementary protection' criterion. Specifically, the Tribunal had to determine if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if there was a real risk of significant harm to him as a necessary and foreseeable consequence of his removal from Australia to Malaysia.

The Tribunal found that the applicant did not satisfy the 'refugee' criterion. It also considered the 'complementary protection' criterion, which requires a substantial ground for believing there is a real risk of significant harm upon removal. The Tribunal noted that punishment for criminal offences is generally not considered persecution unless it lacks a discriminatory element. While acknowledging the applicant's concerns about potential imprisonment due to his criminal matters, the Tribunal found that the country information did not establish a real risk of significant harm, as the reported poor prison conditions were attributed to inadequate resourcing rather than intentional infliction of suffering by the authorities. The Tribunal also found that the applicant had not established that he was a member of the same family unit as a person who held a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, as he did not satisfy the criteria under section 36(2) of the Migration Act 1958.