1834472 (Refugee)

The applicant, a Malaysian national, sought review of the delegate's decision to refuse him a protection visa. The applicant arrived in Australia in March 2018 and applied for the visa in June 2018. He claimed he would face harm in Malaysia due to his involvement in selling a restricted herbal substance, known as [product 1], which is prohibited under Malaysian law. The applicant stated that he stopped selling the substance in mid-2017 after learning of its illegality and being sought by the police, after which he went into hiding until his arrival in Australia. The Tribunal considered the applicant's claims in light of the 'Refugee Law Guidelines', 'Complementary Protection Guidelines', and country information assessments.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth). This required determining if the applicant was a refugee, as defined by section 5H, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if he qualified for complementary protection under section 36(2)(aa) due to a real risk of significant harm upon removal to Malaysia. The Tribunal also considered whether the applicant's conduct in Australia, specifically his involvement in supplying the restricted substance, should be disregarded when assessing his claim for refugee status.

The Tribunal reasoned that the applicant's fear of persecution stemmed from his illegal activities in Malaysia, not from any of the protected grounds outlined in section 5J of the Act. While the applicant had a well-founded fear of being apprehended by the Malaysian police for his unlawful conduct, this fear was not linked to race, religion, nationality, membership of a particular social group, or political opinion. Furthermore, the Tribunal found that the applicant's actions in supplying the restricted substance were not engaged in otherwise than for the purpose of strengthening his claim to be a refugee, and therefore, his conduct in Australia was not to be disregarded under section 5J(6). Consequently, the applicant did not satisfy the criteria for a protection visa.

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