1812124 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse to grant protection visas to two Malaysian citizens. The applicants arrived in Australia in December 2015 and applied for protection visas in November 2017, remaining unlawful non-citizens for approximately 20 months. The delegate refused the visas on the basis that the applicants were not persons to whom Australia owed protection obligations. The applicants sought review of this decision by the Tribunal.

The primary legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as refugees, or alternatively, under section 36(2)(aa) as persons facing significant harm as a necessary and foreseeable consequence of removal from Australia. This involved assessing whether the applicants held a well-founded fear of persecution or a real risk of significant harm, and whether they belonged to a particular social group in Malaysia. The Tribunal was also required to consider the adequacy of protection measures available in Malaysia and the applicants' claims of discrimination.

The Tribunal considered evidence relating to the first applicant's business dealings, including a substantial debt incurred from a loan shark after his business partner absconded with capital. This led to threats, a physical altercation, and vandalism of his vehicle. While the applicants did not suffer harm before departing Malaysia, ongoing threats communicated to family members were presented as evidence of continuing risk. The Tribunal also examined country information regarding illegal money lending, available protection measures in Malaysia, and levels of discrimination against Chinese Malaysians. The Tribunal noted inconsistencies and vagueness in the applicants' claims and a significant delay in lodging their protection visa application, which the first applicant attributed to a lack of funds.

The Tribunal affirmed the delegate's decision to refuse the protection visas. It found that the applicants had not established a well-founded fear of persecution or a real risk of significant harm upon return to Malaysia. The Tribunal was not satisfied that the threats faced by the first applicant from loan sharks constituted a necessary and foreseeable consequence of removal, particularly given the availability of legal recourse and police protection in Malaysia. Furthermore, the Tribunal found that the applicants had not demonstrated that they belonged to a particular social group that would subject them to persecution or significant harm, nor had they established a real risk of discrimination.