2008403 (Refugee)

This case concerned an applicant for a protection visa who claimed to fear persecution in Malaysia due to debts owed to loan sharks, stemming from a gambling addiction. The applicant also alleged that Malaysian police had failed to act on reports of attacks by these creditors. The delegate had previously determined that the applicant was not a refugee and did not face a real risk of significant harm, finding that effective protection measures were available in Malaysia. The applicant sought review of this decision.

The central legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution in Malaysia for a refugee nexus reason, or alternatively, whether there were substantial grounds for believing that removal to Malaysia would result in a real risk of significant harm. This involved considering the availability of effective protection measures in Malaysia and whether the applicant could reasonably relocate within Malaysia to avoid any risk.

The Tribunal noted that the applicant had suffered catastrophic medical problems, leaving him incapable of giving evidence. This prevented the Tribunal from confirming whether the applicant had received and understood the delegate's decision. Despite the lack of direct evidence from the applicant regarding his claims of debt and attacks, the Tribunal considered the applicant's medical condition and its implications for his ability to protect himself or seek assistance. The Tribunal ultimately found that Australia had protection obligations towards the applicant under s 36(2)(a) of the Migration Act 1958.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Migration Act.