1838191 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for review of a delegate's decision to refuse to grant the applicant a protection visa. The applicant, claiming to be a citizen of Malaysia, sought review after the delegate found that Australia did not owe protection obligations to the applicant under section 36(2)(a) or 36(2)(aa) of the *Migration Act 1958* (Cth). This matter was before the Tribunal for a second time, having been remitted by the Federal Circuit Court.

The primary legal issue before the Tribunal was whether the applicant was a person in respect of whom Australia owed protection obligations, specifically under the 'refugee' criterion (s 36(2)(a)) or the 'complementary protection' criterion (s 36(2)(aa)). This required the Tribunal to assess whether the applicant had a well-founded fear of persecution for a Convention reason, or if there was a real risk of significant harm upon removal to Malaysia. The applicant also raised a new claim that he was likely to be perceived as disabled due to his physical stature, which could lead to serious harm.

The Tribunal affirmed the delegate's decision, finding that the applicant had not established a well-founded fear of persecution. While acknowledging the applicant's claims of domestic violence perpetrated by his father, the Tribunal concluded that these events did not meet the threshold for persecution under the *Migration Act*. The Tribunal also found that the applicant's assertion of being perceived as disabled due to his physical stature was unsubstantiated and did not constitute a basis for protection obligations. The Tribunal was satisfied that the applicant had a fair opportunity to present his case, including through a video hearing conducted due to the COVID-19 pandemic.