1722930 (Refugee)

The Administrative Appeals Tribunal (the Tribunal) considered the case of an applicant seeking a protection visa. The applicant claimed that if returned to Malaysia, he would face financial hardship, a reduced standard of living, and increased crime due to the deteriorating Malaysian economy. He also asserted that state discrimination against non-Malays, particularly ethnic Chinese and Buddhists, would negatively impact his family's future. The applicant consented to the Tribunal making a decision on the papers without a hearing.

The legal issues before the Tribunal were whether the applicant was a person to whom Australia owed protection obligations under the Migration Act 1958. This required assessing the credibility of his claims and determining if he met the criteria for being a refugee or falling within Australia's complementary protection obligations. Specifically, the Tribunal had to consider if the applicant faced a real chance of serious harm, either as a refugee due to a well-founded fear of persecution based on race or religion, or under complementary protection due to a real risk of significant harm as a necessary and foreseeable consequence of his removal to Malaysia.

The Tribunal's reasoning focused on the evidence regarding the situation in Malaysia. While acknowledging that Article 153(2) of the Malaysian Constitution permits affirmative action for Malays, the Tribunal found that Department of Foreign Affairs and Trade (DFAT) assessments indicated Chinese Malaysians generally experienced low levels of official discrimination in areas such as education and business. The applicant provided no specific examples of how he personally had been or would be impacted by such discrimination, nor did he claim to have engaged in behaviour that would increase his risk. Regarding the economic claims, the Tribunal noted that the definitions of torture, cruel or inhuman treatment, and degrading treatment under the Act require an element of intent, which was not present in the general socio-economic conditions described. The Tribunal concluded that the applicant did not face a real chance of serious harm or significant harm upon return to Malaysia.

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