2010272 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, a citizen of Malaysia, claimed to fear persecution from criminal gangs in her home area, alleging she might be robbed, raped, or killed. She also stated she could not afford to relocate within Malaysia. The Tribunal assessed her claims against Malaysia as both her country of nationality and the receiving country.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under section 36(2)(a) of the Migration Act 1958 (Cth), or alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of her removal to Malaysia, she faced a real risk of suffering significant harm under section 36(2)(aa) of the Act. The Tribunal also considered whether section 36(3) of the Act applied, which would be relevant if the applicant had a right to enter and reside in a country other than her country of origin.

The Tribunal's reasoning focused on the applicant's credibility and the timing of her application. It noted that the applicant arrived in Australia in December 2015 but did not apply for a protection visa until March 2017, over 15 months later. When questioned about this delay, the applicant stated her primary motivation for applying was to obtain a visa that would allow her to work on a vegetable farm, as her employer required a visa for employment. She had been in Australia unlawfully between March 2016 and March 2017. The Tribunal found that the applicant did not have a well-founded fear of persecution and that her intention in applying for the visa was primarily to secure employment rather than to escape feared harm. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for a protection visa under section 36(2) of the Act.

The Tribunal affirmed the decision not to grant the applicant a protection visa.