1933594 (Refugee)

This matter concerned an application for review by a Malaysian national of Chinese ethnicity and Christian faith, who sought a Protection visa. The applicant claimed to have fled Malaysia due to threats from gangsters, allegedly sent by his former employer, and feared he would not receive protection from Malaysian authorities due to corruption. The delegate of the Minister for Home Affairs had refused the visa, finding the claimed harm did not meet the refugee nexus criteria and that Australia did not have complementary protection obligations. The applicant sought review of this decision before the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a Protection visa, specifically whether he was a refugee within the meaning of section 5H of the Act, or whether Australia had complementary protection obligations under section 36(2)(aa) of the Act. This involved assessing whether the applicant had a well-founded fear of persecution for a Convention reason and, alternatively, whether there was a real risk of significant harm upon removal to Malaysia.

The Tribunal noted that the applicant had not claimed to have suffered any past harm that was for a Convention reason, and the delegate had found the claimed fear of harm was not for a refugee nexus reason. Regarding complementary protection, the delegate had considered country information on corruption and the effectiveness of Malaysian authorities in combating crime, concluding that while absolute protection might not be available, an adequate level of protection would be provided. The Tribunal also noted that the applicant failed to respond to a pre-hearing information form and did not attend a scheduled hearing, despite being notified by email to his registered address.

Given the applicant's failure to engage with the Tribunal's processes, including not attending the hearing after being warned that the application might be dismissed, the Tribunal affirmed the delegate's decision. The Tribunal found that it could not proceed with a substantive assessment of the applicant's claims without his participation.