1727623 (Refugee)

This matter concerned a protection visa application made by an applicant and her son, who claimed they departed Malaysia due to economic reasons, including a lack of employment and an inability to support themselves. The delegate refused the application, finding that while the applicant preferred to live in Australia for a better quality of life and employment opportunities, this did not constitute persecution for a Convention reason, and that the applicants did not face a real chance of serious or significant harm due to Malaysia's economic situation. The applicant subsequently lodged a review application with the Tribunal, providing further evidence of her business ventures in Malaysia, including a small-scale manufacturing business that encountered financial difficulties due to rising costs, fraudulent orders, and an inability to meet loan repayments and overheads.

The legal issues before the court were whether the applicant met the criteria for a protection visa, specifically considering both the refugee criterion under s 36(2)(a) and the complementary protection criterion under s 36(2)(aa) of the Act. The court was required to determine if the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia, taking into account the meaning of "significant harm" as defined in ss 36(2A) and (2B) of the Act. The Tribunal was also mandated to consider relevant guidelines and country information assessments prepared by government departments.

The court's reasoning focused on the application of the complementary protection criterion. It acknowledged that if the refugee criterion is not met, a visa may still be granted if the Minister is satisfied that Australia has protection obligations due to a real risk of significant harm upon removal to a receiving country. The applicant's detailed account of her business struggles in Malaysia, including loan defaults, the impact of rising costs and scams, and the disruption caused by political demonstrations affecting her street market sales, formed the basis of her claim for significant harm. The court considered this evidence in light of the relevant legal principles and guidelines governing protection visa applications.

The decision under review was affirmed.