1714542 (Refugee)

This matter concerned an application for a protection visa by a Malaysian citizen. The applicant claimed she left Malaysia due to government policies that allegedly favoured Malay Muslims and discriminated against non-Malays, including ethnic Chinese like herself, in areas such as education and employment. She also recounted an incident during a protest where she was injured, which she believed was racially motivated. However, at the hearing, the applicant recanted these claims, stating she had no genuine reason for seeking protection in Australia and had been misled by an individual into signing the visa application. The Administrative Appeals Tribunal was required to determine whether Australia had protection obligations towards the applicant under either the refugee criterion or complementary protection grounds.

The Tribunal considered the applicant's claims of discrimination based on her Chinese ethnicity in Malaysia, which she alleged led to disadvantages in education and employment, and a specific incident of physical harm during a protest. Crucially, the Tribunal also had to assess the applicant's later evidence that her initial claims were fabricated and that she had no genuine fear of persecution. The legal issue was whether, despite her initial claims, the applicant faced a real risk of significant harm upon return to Malaysia, or met the definition of a refugee, as defined by sections 5H and 36 of the *Migration Act 1958* (Cth), and the complementary protection criterion under section 36(2)(aa).

The Tribunal found that the applicant was a Malaysian citizen and that Malaysia was her country of nationality and the receiving country. Despite the applicant's initial claims of discrimination and persecution due to her ethnicity, her subsequent evidence at the hearing indicated she had no genuine reason for seeking protection. The Tribunal accepted her later evidence that she did not understand the nature of a protection visa application and had been misled. Given this, the Tribunal concluded that the applicant did not satisfy the criteria for a protection visa, either under the refugee provisions or the complementary protection provisions, as there was no substantial ground to believe she would suffer significant harm upon removal to Malaysia.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant was not found to be a member of the same family unit as a person who met the criteria for a protection visa. The decision was made by Member Alison Murphy.