2118677 (Refugee)

The applicant, a Malaysian citizen of Chinese ethnicity and Buddhist faith, sought review of a decision not to grant him a protection visa. His claim for protection was based on a fear of contracting COVID-19 upon return to Malaysia, which he asserted had declared an emergency status and was experiencing a high number of daily cases. He also expressed a belief that Malaysian authorities could not protect him.

The primary legal issue before the Tribunal was whether the applicant qualified for protection under section 36 of the Migration Act 1958 (Cth) and clause 866.221 of Schedule 2 to the Regulations, specifically due to his fear of contracting COVID-19 in Malaysia. This required determining if he had a well-founded fear of persecution for a Convention reason, or if he faced a real risk of significant harm as a necessary and foreseeable consequence of removal to Malaysia.

The Tribunal affirmed the delegate's decision, concluding that the applicant had not established a claim for protection. The Tribunal noted that the applicant had not provided oral evidence and had not supplied further information beyond his initial application. It was held that the applicant bore the onus of establishing his claims, and a fear of contracting COVID-19, in the absence of evidence demonstrating it was for a Convention reason or that the risk was not faced by the population generally, did not meet the threshold for a well-founded fear of persecution or a real risk of significant harm. The Tribunal referred to section 36(2B)(c) of the Act, which states there is taken not to be a real risk of significant harm if the risk is faced by the population of the country generally and not by the non-citizen personally.

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