1721757 (Refugee)

The applicant, a national of Malaysia, sought merits review of a delegate's decision to refuse her protection visa application. The applicant claimed to have witnessed and intervened in a handbag theft, resulting in one of the perpetrators being injured and taken to the police. Subsequently, she alleged her car tires were stolen, her car was vandalised with red paint, and she received harassing phone calls from members of the [Gang 1] group, who blamed her for their member's injury. She further claimed these gang members harassed her at her workplace and that if returned to Malaysia, she faced a serious risk of injury or death from this group, asserting that Malaysian authorities would be unable to protect her due to the gang's political connections and that she would be unable to relocate to evade them.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as a refugee, or alternatively, whether she was entitled to complementary protection under section 36(2)(aa) of the Act. This involved determining if she had a well-founded fear of persecution and if effective protection measures were available in Malaysia, or if there were substantial grounds for believing she would suffer significant harm as a necessary and foreseeable consequence of removal.

The Tribunal considered the applicant's claims in light of the available evidence, including country information on Malaysia. Crucially, the Tribunal had invited the applicant to attend an in-person hearing to present oral evidence and arguments, providing multiple reminders via email and a phone call. Despite these efforts, the applicant did not attend the scheduled hearing, nor did she seek a postponement. The Tribunal noted that the applicant had indicated she would discuss the hearing with her solicitor and could not confirm attendance until then, but no further contact was received. In the absence of the applicant's attendance and oral evidence, and having considered the material before it, the Tribunal concluded that the applicant did not satisfy the refugee criterion. Furthermore, the Tribunal found that the applicant did not satisfy the criterion for complementary protection.

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