1504996 (Refugee)

1504996 (Refugee) [2015] AATA 3873 (7 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504996
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Louise Nicholls
DATE:7 December 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 December 2015 at 4:12pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of Malaysia and he is [age]. He was born and grew up in Kuala Lumpur in Malaysia. His parents are retired and living in Kuala Lumpur as are his [siblings].
The applicant obtained an electronic travel authority in March 2012 and arrived in Australia [in] April 2012. He later obtained a student visa in August 2012. He left Australia for a week in late December 2013 and returned on his student visa. His student visa was due to cease [in] December 2014.
[In] December 2014 the applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act). [In] March 2015 the delegate of the Minister for Immigration refused to grant the visa on the basis that he was not satisfied that the applicant had a well-founded fear of persecution or that he met the complementary protection requirements.
This is an application for review of that decision.
The applicant provided a copy of the delegate’s decision with the application for review.
The applicant appeared before the Tribunal hearing on 3 December 2015 to give evidence and present arguments to support the application for review. The Tribunal was conducted with the assistance of an interpreter of the Cantonese and English languages. The applicant was represented by his registered migration agent. The applicant gave evidence about his background and his claims for protection. No further documents or submissions were provided.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Act and if not whether there is, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, a real risk that he will suffer significant harm: s.36(2)(aa).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Act?
The applicant lodged an application for a protection visa [in] December 2014 and included his written claims in that application. He claimed;
·     He left Malaysia to escape persecution by the police.
·     He fears the police and pro-government groups.
·     He has been beaten and extorted by the police who asked the pro-government groups to harass and intimidate him.
·     He will be continuously harassed, watched and intimidated. He is in fear of the safety of his life if he supports the anti-government movement.
·     He was participating in anti-government movements against the government. In a clash with the pro-government group they injured some police and pro-government activists. After the police found out he was one of the anti-government protesters they extorted money from him. If he did not do so they threatened him with jail and torture. His house and workplace have been visited on a number of occasions.
·     As a consequence he had to leave his job and this has deprived him of his employment. He has been prohibited from taking part in anti-government gatherings.
·     The authorities of Malaysia cannot protect him because police and pro-government groups are responsible for harming and extorting money from him.
The delegate invited the applicant to an interview [in] March 2015 but he did not attend.
Following the lodgement of the application for review the applicant was invited to a Tribunal hearing on 3 December 2015. He gave evidence that he is [age] and was born in Kuala Lumpur. He is a citizen of Malaysia and had previously provided a copy of his Malaysian passport. His parents and his [siblings] live in Kuala Lumpur. He and his family are ethnic Chinese and speak Cantonese. He has never been married.
He left school when he was [age] and has worked in a variety of occupations including, as [occupations].
In 1991 he lived and worked in [country 1] for 3 years and then returned to Malaysia. In 1996 he lived and worked in [country 2] for 5 years and returned to Malaysia. He then moved to [Country 3] to work from 2002 to 2009.
When he returned to Malaysia in 2009 he and a friend started a restaurant in a rural area of Malaysia about [a number of] kilometres from Kuala Lumpur. The restaurant business was not successful and the applicant claimed that the failure of the business was due to daily demands of money from local police. He stated that the police were corrupt and demanded money from them because they were employing foreign restaurant workers who did not have residence permits.
The applicant came to Australia [in] April 2012. He stated that after he arrived he obtained a student visa and had intended to study [course] but instead had enrolled in [college] to study English. He was not sure whether he finished the English course and was not sure of the address where the course was conducted. He claimed he had been studying for 18 months to 2 years.
The applicant’s student visa was due to expire in December 2014 and he applied for a protection visa in December 2014.
The Tribunal asked the applicant why he applied for a protection visa. He took some time formulating a response. Initially he stated that there was racial discrimination against the Chinese in Malaysia and it was not worth staying. When questioned further he stated he found it hard to articulate why he felt he needed protection. He stated that he was concerned that Malaysia is no longer able to protect its people. He claimed he was told if he did not agree with how things were in Malaysia he could go back to China. He stated that it was difficult to make a life in Malaysia and there was a lot of racial discrimination.
The Tribunal asked him what had caused him to fear returning to Malaysia. At first he stated there was nothing in particular. He then stated that when he returned to Malaysia from [Country3] in 2009 he and a friend had tried to set up a restaurant business in a rural area. They were joint owners. He stated that the local police had acted like thieves and just wanted money. The police came every day and demanded money because they had foreign workers in the restaurant who had no legal status. He stated that he just wanted to make money but the business ceased because they could not make enough money after they had paid the police.
He came to Australia after his business failed intending to work and to study. After a year in Australia someone suggested he should apply for protection.
The Tribunal asked the applicant what would happen to him if he returned to Malaysia. He stated that nothing would happen but he would have to go to another country because it was not worth staying in Malaysia. He stated the Malays have never liked the Chinese people. The Tribunal put it to him that he has worked in a number of jobs in Malaysia and he would probably be able to find similar work if he returned. He agreed but stated that the problem was he could not earn enough to cover his expenses. Also his parents are retired and he needs to help them because they do not get any help from the Malaysian government which only helps Malays.
The Tribunal asked the applicant if he recalled the written claims he made when he made his application for protection. He stated that he had talked about organising some activities. The Tribunal pointed out that he had not mentioned this when he was earlier asked why he feared returning to Malaysia. He stated that he had put his claims in writing and did not think he needed to repeat those claims.
When asked to provide some further detail about his written claims he stated he was unhappy about what happened to his business and had participated in some activities. When asked about these activities he stated that in 2011 he attended an activity in Kuala Lumpur when he and others had participated in a protest. He claimed that police came up to them and tried to catch them. He claimed he was caught and detained for 1-2 days. He claimed he was detained in the police headquarters but when he was released someone got rid of his police record so nobody knew about it. He stated that Malaysia was a corrupt country and things like this happened.
He stated the protest in which he was involved was small scale, took place in Kuala Lumpur but was not reported in any newspaper. He stated that nowadays you could make an application for a permit to stage a protest.
The applicant stated that his restaurant was [a number of] kilometres away from Kuala Lumpur and he decided to protest in Kuala Lumpur because he was a man from Kuala Lumpur. The Tribunal put it to him that he description of the protest and detention was vague and lacked detail. He stated it was hard to explain in detail.
If he returned to Malaysia he did not think anything in particular would happen to him but he would have a difficult life and would try to undertake another business.
The Tribunal discussed relevant country information raised by the applicant’s written and oral claims.
The Tribunal referred to the latest Department of Foreign Affairs report on Malaysia published on 3 December 2014. The Tribunal put it to the applicant that whilst there is some positive discrimination in favour of the Malay population the ethnic Chinese dominated the private economy. They constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. There are no Malaysian laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia. Further Malaysian Chinese make up a high percentage of the professional and educated class and dominate the business and commerce sectors. Malaysian Chinese freely participate in political life and are represented by ministers in the current cabinet and in opposition parties. DFAT have assessed that ethnic Chinese generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service. [1]
[1] DFAT Country Report on Malaysia 3 December 2014 paras. 3.5-3.9
With respect to political rallies or protests the report notes that many protest rallies have taken place since 2007 with many rallies taking place without interference from law enforcement agencies. Permits are required and the authorities monitor rallies carefully. Arrests have sometimes been made, particularly for breaches of the permit system. Also force has occasionally been used to break up crowds. DFAT assessed that protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest.[2]
[2] DFAT Country Report on Malaysia 3 December 2014 paras.3.46-3.48
With respect to police corruption, DFAT reports that the government has recognised that there is a public perception of widespread corruption within the Royal Malaysian Police. The Government implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers, including suspension, dismissal or demotion.
The Inspector General of Police announced the establishment of an Integrity and Standard Compliance Department (ISCD) in July 2014 to enhance police integrity and image. The National Human Rights Commission (Suhakam) also receives complaints against the RMP and has conducted investigations into police behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations.[3]
[3] DFAT Country Report on Malaysia 3 December 2014 paras 5.5-5.7
The applicant stated that the country information was superficial and that politicians would say anything and were just playing a role.
Conclusions
Having considered the evidence provided by the applicant the Tribunal accepts that the applicant is a Malaysian national of Chinese ethnicity. He grew up in Kuala Lumpur, is unmarried and his parents and siblings have lived in Malaysia throughout his lifetime.
The Tribunal accepts his evidence that he has spent considerable time outside Malaysia working in [countries] and [Country3] before attempting to start a restaurant business in Malaysia when he returned from [Country 3] in 2009.
The applicant claims to fear persecution in Malaysia for reasons of his Chinese ethnicity. The Tribunal does not accept this claim.
Whilst there is some evidence of positive discrimination in favour of Malays the Tribunal accepts the country information indicating that there are no laws or constitutional provisions which directly discriminate against ethnic Chinese in Malaysia. Further Malaysian Chinese make up a high proportion of the professional and educated class and dominate the business and commercial sector. They participate in political life and are represented by ministers in the current cabinet. There is some evidence that qualified students of Chinese ethnicity have difficulty finding places in public universities but that they form the bulk of students in non-government universities. There are also some barriers to joining the civil service but otherwise the Chinese do not experience discrimination or violence in Malaysia.
The applicant has given evidence that he attended school in Malaysia until the age of [age] and has held many jobs in Malaysia. He is now [age] and his employment experience would suggest that he is experienced in working in various private businesses. He agreed he could return to Malaysia and find work but stated that such work would not cover his expenses. The Tribunal considers that he is intending to obtain well paid work and opportunities and does not see this future for himself in Malaysia. However, there is no credible evidence that he would be unable to subsist in Malaysia or that he could not find work due to his Chinese ethnicity.
The applicant was unhappy with the level of positive discrimination in favour of the Malay population and felt it was inequitable. However he did not point to any particular or specific harm he feared as a result of the claimed discrimination against the Chinese ethnic group.
Taking into account his own evidence and the country information the Tribunal does not accept that he would face discrimination amounting to serious harm for reasons of his Chinese ethnicity if he returned to Malaysia now or in the foreseeable future.
Turning to his other claims the Tribunal does not accept that he faces harm for reasons of his participation in a political rally in Kuala Lumpur in 2011 or at any time.
The Tribunal does not accept that the applicant attended a rally in Kuala Lumpur in 2011 protesting corruption and detained as a result. His evidence was vague and lacking in relevant detail. He was not able to give the type of detailed evidence which demonstrated that he had experienced the incident and resulting claimed mistreatment. He stated that he and others [travelled] to Kuala Lumpur from his restaurant business to take part in a small unreported protest. He did not explain who organised the protest, how it was communicated to others and specifically where it took place. The Tribunal did not consider he could satisfactorily explain why he travelled [so many] kilometres to protest in Kuala Lumpur when his problems arose from his rural restaurant business. He claimed he was arrested and detained in Kuala Lumpur but stated there was no record of his arrest as he claimed that somebody got rid of the records. His account of his detention was vague and lacking in relevant detail.
Further the claims made in his application for protection differed from his oral evidence.
·He claimed in writing that he supported the anti-government movement whereas at hearing he claimed he was protesting corruption.
·He also claimed in writing that he was involved in a clash with pro-government groups and during the clash injuries were caused to police and pro-government activists. He made no mention of injuries to police and other participants in his oral evidence.
·He claimed that the police extortion arose because of his protest activity whereas at hearing he stated it related to the conduct of his rural restaurant business.
·He claimed he was threatened with jail and torture and that police visited his home and workplace. He did not mention this claim at the hearing.
·He stated he had to leave his job and had been prohibited from anti-government activities. He told the Tribunal that his business failed due to police demands for money. He did not mention a prohibition of anti-government activities.

The Tribunal considers the inconsistencies between the written and oral evidence support the finding that the applicant has not given a truthful account of his claim that he was involved in a protest activity, that he was mistreated as a result and fears return for this reason. The Tribunal considers that the applicant had great difficulty in articulating these claims and was unable to provide detail because he had not taken part in any protests, had not been detained and had not been threatened for this reason. The Tribunal considers he could not give a narrative account of these events because they had not occurred.
The Tribunal’s findings are supported by the applicant’s evidence that he did not expect anything would happen to him as a result of his claimed involvement in this protest if he returned to Malaysia. He also agreed with the country information put to him that rallies had taken place in Malaysia over many years with little interference by Malaysian authorities. His concerns were mainly related to his lack of confidence for his own future in Malaysia.
For reasons set out above the Tribunal does not accept that the applicant participated in a protest rally or that he was detained and mistreated by police following his involvement. However, even if the Tribunal accepted his claim that he participated and was detained, which it does not, the oral evidence of the applicant and country information indicates that he would not face a real chance of serious harm for reasons of participating in such a rally or protest.
The applicant also made claims that he feared the actions of corrupt police in Malaysia. He stated that in 2009 he and his friend had set up a restaurant business in a rural area and the business had been adversely affected by the corrupt conduct of the local police in that area to the extent that the business failed. He stated that the police demanded money because the business was employing foreign workers with no legal status.
The Tribunal accepts that the applicant may have been affected by the corrupt actions of police as claimed. However, it does not accept that such conduct was motivated by one of the reasons set out in the Act, being, for reasons of race, religion, nationality, membership of a particular social group or political opinion. The evidence of the applicant was that the police were motivated by greed and a desire to make money and were able to use the issue of the employment of illegal workers as a basis for their demands. The evidence before the Tribunal is that the business failed in 2011/2012 and this encouraged the applicant to look for other opportunities outside Malaysia.
Looking to the future if the applicant returned to Malaysia, there is no suggestion that the applicant would return to the area of the failed restaurant business. The applicant did not express any intention of returning to that area. The evidence indicates that the corrupt conduct was highly localised and specifically related to the operation of the defunct restaurant. The applicant did not claim and the Tribunal does not consider he would be subject to corrupt conduct by police now or in the foreseeable future if he did return to Malaysia although he did make a general complaint about police corruption throughout Malaysia. However, the country information indicates that the current government is aware that there is a public perception that there is corruption in the Royal Malaysian Police and have taken active steps to implement reforms to prevent corruption and strengthen compliance with relevant codes of conduct.
The Tribunal does not accept that the past corrupt conduct of the police as described by the applicant was motivated by one or more of the five reasons set out in the Act. The Tribunal considers that the evidence indicates that the corrupt conduct was not motivated by his Chinese ethnicity but for reasons of greed and opportunity on the part of the police. The Tribunal notes that the applicant raised the issue of discrimination for reasons of his Chinese ethnicity as a general claim and the Tribunal has dealt with that claim earlier in this decision.
As stated earlier in this decision the Tribunal also does not accept that the corrupt conduct arose from the applicant’s claimed involvement in a protest rally or rallies.
For reasons set out above the Tribunal does not accept if the applicant returns to Malaysia now or in the foreseeable future he a well-founded fear of being persecuted for one or more of the five reasons set out in the Act.,
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm?
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Taking into account the evidence of the applicant and the country information referred to above the Tribunal does not accept the applicant will face a real risk of significant harm for reasons of his Chinese ethnicity if he returns to Malaysia.
Further it does not accept that the applicant attended a protest against police corruption or intends to do so in the future. Thus it does not accept he faces a real risk of significant harm for that claimed reason.
As set out earlier in the decision the Tribunal accepts that the applicant may have been affected by the corrupt conduct of police in the local area near his restaurant business and the demands for money may have been a contributing factor in the failure of the business. However, it also considers that the demands for money ceased once the business failed and there is no suggestion he will return to the local area where that business was located.
In his evidence he identified a general lack of confidence for his future in Malaysia and that whilst he agreed he could get a job it would not meet the expenses of himself and his parents. He also claimed that there was a level of discrimination against ethnic Chinese in Malaysia which would make life difficult if he returned.
However, there is nothing before the Tribunal which indicates that as a result of his Chinese ethnicity or his experience of police corruption that he will be arbitrarily deprived of his life; that he faces the death penalty that he will be subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment if he returns to Malaysia.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls
Senior Member  7 December 2015

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2015] AATA 3873

7 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Standing