1927457 (Refugee)

The applicant, a citizen of Malaysia, sought review of a delegate of the Minister for Home Affairs' decision to refuse his application for a protection visa. The delegate had determined that the applicant did not have a well-founded fear of persecution and that effective protection measures were available to him in Malaysia, thus refusing the visa without an interview. The applicant subsequently lodged an application for review with the Tribunal, presenting oral evidence and his Malaysian passport.

The primary 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, and if effective protection measures were unavailable in Malaysia under section 5JA. Alternatively, the Tribunal considered whether the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of removal to Malaysia, under the complementary protection criterion in section 36(2)(aa).

The Tribunal considered the applicant's claims regarding his involvement with loan sharks in Malaysia and the threats he received. However, the Tribunal found that the applicant had not established a well-founded fear of persecution. Specifically, the Tribunal noted that the applicant had not been physically harmed by the loan sharks in Malaysia and that there was no evidence to suggest that the threats escalated beyond pressure to repay debts. Furthermore, the Tribunal considered the availability of state protection in Malaysia, referencing country information and the applicant's ability to relocate within Malaysia or access law enforcement. The Tribunal concluded that the applicant had not demonstrated that he could not avail himself of the protection of Malaysia or that effective protection measures were unavailable.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa, finding that the applicant did not satisfy the criteria under section 36(2) of the Act.