1813655 (Refugee)

The applicant, a Malaysian citizen, sought a protection visa in Australia. The dispute arose from the applicant's claim that his protection visa application, lodged electronically with the Department, was prepared by a third party without his full knowledge and contained claims of being a homosexual man facing persecution in Malaysia. The applicant emphatically disavowed these claims at the hearing, stating he was not homosexual and had not experienced the events described in the Departmental application, believing he was applying for a working visa. The case was heard by Garry Fitzgerald SC.

The court was required to determine two primary issues. Firstly, whether there was a real chance that the applicant would be persecuted in Malaysia for one or more of the reasons specified in s 5J(1)(a) of the *Migration Act 1958* (Cth), thus meeting the refugee criterion under s 36(2)(a). Secondly, if the applicant did not meet the refugee criterion, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Malaysia, he faced a real risk of suffering significant harm, under the complementary protection criterion in s 36(2)(aa) of the Act.

The court accepted the applicant's personal background, including his Malaysian nationality, ethnicity, religion, family ties in Malaysia, and his life and work history in Australia since his arrival in 2017, including his marriage and the birth of a child. Crucially, the court found that the applicant had not established a well-founded fear of persecution. This was primarily because the claims of persecution based on sexual orientation, as stated in the Departmental application, were emphatically disavowed by the applicant at the hearing. He provided credible evidence that he was not homosexual and had not experienced the alleged persecution. Consequently, the court was not satisfied that Australia had protection obligations towards the applicant under s 36(2) of the Act.

The Tribunal affirmed the decision not to grant the applicant a protection visa.