1803216 (Refugee)

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, who is of Chinese ethnicity and Buddhist religion, claimed to fear persecution in Malaysia due to discrimination based on his ethnicity and religion, specifically in areas of religious belief, education, and employment. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was a person in respect of whom Australia had protection obligations due to a well-founded fear of persecution.

The primary legal issues before the Tribunal were whether the applicant's claims of discrimination and fear of persecution in Malaysia were sufficiently particularised and credible, and whether his regular and lawful departures from Malaysia prior to arriving in Australia undermined his claimed fear. The Tribunal also considered its procedural obligations, including the applicant's consent to have his review determined on the papers without a hearing, a measure adopted due to COVID-19 pandemic restrictions. The Tribunal was guided by the principles that it is the applicant's responsibility to specify and establish their claim, and that a lack of genuine subjective fear negates the need to consider objective bases for that fear.

The Tribunal reasoned that the applicant had failed to provide sufficient particulars to substantiate his claims of persecution based on his Chinese ethnicity and Buddhist religion. The applicant's protection application lacked details on how these factors had led to persecution or fear of persecution in Malaysia. Furthermore, the Tribunal noted adverse credibility findings made by the primary decision-maker regarding the lack of particularisation and the applicant's lawful departure from Malaysia. In light of the applicant's explicit instruction, through his migration agent, to proceed with the review based solely on the documents before the Tribunal, and the absence of further evidence or particulars from the applicant, the Tribunal concluded that the applicant had not established a well-founded fear of persecution.

Accordingly, the Tribunal affirmed the decision under review, finding that the applicant had not demonstrated that he faced a real chance of serious harm or a real risk of significant harm in Malaysia for the essential and significant reason of his Chinese ethnicity.