1806894 (Refugee)

The applicant, a Malaysian national, sought a protection visa, claiming he feared for his life and that of his daughter in Malaysia due to threats from loan sharks to whom he owed a substantial debt. He alleged that he had been physically assaulted by these loan sharks prior to his arrival in Australia in June 2001, and that the Malaysian police were complicit and would not offer protection. The applicant also sought to remain in Australia to care for his de facto partner, a permanent resident with a mental illness. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for a protection visa, including the complementary protection criterion, which involves assessing the real risk of significant harm upon removal from Australia.

The Tribunal considered the applicant's claims in light of Ministerial Direction No. 56, relevant policy guidelines, and country information. The Delegate had previously found that the applicant's claims did not fall within the refugee definition and that he could seek assistance from Malaysian police. The applicant provided further submissions, including news articles about loan sharks in Malaysia and letters of support. The Tribunal noted that the applicant had been in Australia unlawfully for a significant period.

The Tribunal applied the principles of s.36(2)(aa) of the Act, which allows for a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, the applicant faces a real risk of significant harm. The Tribunal also had regard to ss.36(2A) and (2B) concerning the meaning of significant harm and circumstances where a real risk is not taken to exist. Despite the applicant's detailed account of past threats and violence from loan sharks, and the submission of news articles, the Tribunal was not satisfied that he had established a real risk of significant harm upon return to Malaysia. The Tribunal's reasoning focused on the lack of evidence demonstrating that the Malaysian authorities were unable or unwilling to protect individuals from loan sharks, and that the applicant's circumstances presented a necessary and foreseeable risk of significant harm.

The Tribunal affirmed the decision under review, meaning the applicant's protection visa application was refused.