1728788 (Refugee)

The applicant, an indigenous person from Sabah, sought a protection visa, claiming fear of persecution based on his ethnicity, religion (Christianity), and membership in an internet-based group supporting independence for Sabah and Sarawak. The dispute concerned whether the applicant qualified as a refugee or was entitled to complementary protection under Australian law. The matter was before the Tribunal for review of a decision to affirm the refusal of the visa.

The legal issues before the Tribunal were whether the applicant was a refugee within the meaning of section 36(2)(a) of the *Migration Act 1958* (Cth) and, alternatively, whether he met the criteria for complementary protection under section 36(2)(aa) of the Act. Specifically, the Tribunal had to determine if the applicant held a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if he faced a real risk of significant harm if returned to Malaysia.

The Tribunal reasoned that the applicant's involvement with the independence group was minimal, consisting only of adding his name to petitions, and he had not suffered past harm or claimed he would face harm for this activity if returned. While he alleged some discrimination in employment and lower pay due to his ethnicity and religion, he acknowledged no official discrimination against indigenous people and freedom to practice his faith. Crucially, the applicant stated he came to Australia on a tourist visa with the intention of working and earning sufficient income to support his siblings, acknowledging that failure to obtain well-paid work, while a form of harm, was not a recognised ground for refugee status. The Tribunal concluded that the applicant did not have a subjective fear of persecution based on the protected grounds, nor did he face a real risk of significant harm, including arbitrary deprivation of life, torture, or cruel, inhuman, or degrading treatment or punishment, if returned to Malaysia. The only claimed adverse consequence was diminished earning capacity.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not meet the criteria for either refugee status or complementary protection.