1822545 (Refugee)

The applicant, a citizen of Malaysia, sought a protection visa in Australia. The dispute centred on whether the applicant met the criteria for being a refugee or for complementary protection. The applicant's initial claim, lodged in writing, alleged threats to his life from creditors of a failed business venture in Malaysia. However, at the hearing, the applicant stated he had not written the claim and had merely asked a friend to write whatever they wished, indicating he was unsure of its contents and whether he genuinely feared harm from the alleged creditors.

The court was required to determine two primary issues: first, whether the applicant qualified as a refugee under the Migration Act 1958, specifically whether he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion; and second, if not a refugee, whether there were substantial grounds for believing there was a real risk of significant harm to the applicant as a necessary and foreseeable consequence of his return to Malaysia. This included considering whether effective protection measures were available to him in Malaysia.

The court found that the applicant did not have a well-founded fear of persecution. This was largely due to the applicant's own evidence at the hearing, where he resiled from his written claims, stating he did not know what his friend had written and was unsure if he feared harm from the creditors. He indicated his primary concern was needing money, rather than a fear of persecution. The court accepted that Malaysia was the applicant's receiving country and that he was a Malaysian citizen. Given the applicant's disavowal of his written claims and his uncertainty about fearing harm, the court concluded that the criterion for being a refugee was not met. Furthermore, the court found no basis for the applicant to satisfy the criteria for complementary protection, as there was no evidence presented to suggest a real risk of significant harm upon return to Malaysia.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant did not satisfy the criteria under section 36(2) of the Migration Act 1958, either as a refugee or as a person facing a real risk of significant harm upon return to Malaysia.