1919329 (Refugee)

The applicant, of Chinese ethnicity, sought a protection visa, claiming he faced a real chance of serious harm if returned to Malaysia due to his imputed or actual political opinion. He alleged he had made comments critical of communists in Sarawak, which upset supporters of communist China, leading to a physical assault in a restaurant. The applicant provided photographs of bruising and newspaper articles concerning corruption and anti-union activities in the forest logging industry, which he claimed were relevant to his persecution. The Tribunal was required to determine whether the applicant met the criteria for being a refugee under the Act or qualified for complementary protection.

The Tribunal considered whether the applicant's fear of harm was both subjectively held and objectively well-founded. It noted the applicant's failure to attend a hearing prevented questioning about the relevance of the provided newspaper articles and photographs. The photographs, showing minor bruising, were not directly linked to the applicant, and the newspaper articles appeared unrelated to the alleged persecution by communists. The Tribunal found that the country information for Malaysia did not indicate a risk of harm from supporters or opponents of the Chinese Communist Party. Furthermore, it was noted that any assaults could be reported to the Royal Malaysia Police for state protection, and the applicant himself had not reported the alleged assault due to a lack of evidence and witnesses.

Applying these considerations, the Tribunal concluded that the applicant had not established a subjective fear of serious harm, and any such fear was not objectively well-founded. The Tribunal was not satisfied that the applicant met the refugee criterion under s 36(2)(a) of the Act. It also considered the complementary protection criterion under s 36(2)(aa) and found that the applicant did not face a real risk of significant harm if returned to Malaysia. Consequently, the Tribunal affirmed the decision under review.