1511071 (Refugee)

1511071 (Refugee) [2015] AATA 3525 (15 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511071
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Stuart Webb
DATE:15 October 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 October 2015 at 1:36pm
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa [in] May 2015. The applicant attended a hearing with the Tribunal on 14 October 2015. The applicant was assisted by a Cantonese interpreter. The applicant provided a copy of the delegate’s decision to the Tribunal.
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
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 applicant made the following claims with his application. His life has been threatened by debt collectors, they will break his leg if they find him. He has previously been hit on his head and knee by an ashtray. The police cannot provide him with protection and have not caught the people who hurt him. his friend betrayed him for money. He believes the debt collector will remember him, if he goes back he may lose his leg or a bad thing will happen to him. He does not trust anyone.
He stated that he is a divorced Chinese Buddhist from Malaysia. He lived in the same location in Malaysia from birth till 2008, working as an [occupation].
The delegate noted that the applicant arrived in Australia [in] February 2008, his 3 month visa expiring [in] May 2008. He remained in Australia. [In] May 2015 he applied for his protection visa. He did not attend an interview with the Department.
The delegate accepted the applicant was a Malaysian citizen based on his passport that he provided. The delegate considered that the applicant’s claims were limited and had serious doubts regarding their authenticity. The delay in lodging his application, almost 7 years after arriving in Australia was a relevant consideration.
Findings and reasons
Country of nationality
The applicant claims to be a citizen of Malaysia and provided copies of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal has also considered the published guidelines of the AAT MR Division in relation to credibility.
2.4 Findings made by the Tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the member's subjective belief or gut feeling about whether an applicant is telling the truth or not. A member should focus on what is objectively or reasonably believable in the circumstances.
2.5 The Tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
2.6 In relation to protection visa matters, if the Tribunal is not able to make a confident finding that an applicant's account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant's account of past events is true. If, on the other hand, the Tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant's claim for a protection visa. For example, when assessing an applicant's claims against the Refugees Convention, if an applicant is disbelieved as to his or her claims, the Tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out
The Tribunal also notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The applicant arrived in Australia in February 2008 but did not lodge his protection application until May 2015, and was unlawfully in Australia for over 7 years after his original visa expired. The Tribunal asked why he had not lodged a protection visa much earlier if he feared returning to Malaysia. The applicant stated he did not know the procedure, he then stated that he did not read newspapers. Asked what changed to make him lodge the visa in May 2015, he stated he heard about the news regarding protection visas. When the Tribunal noted that this was very strange that this had happened at that time. The applicant did not comment on this. The Tribunal considers that if the applicant had a genuine fear of harm returning to Malaysia he would have lodged his protection visa earlier in his stay in Australia. That he did not lodge his protection visa application earlier is a significant concern to the Tribunal.
The applicant attended the hearing and gave evidence with respect to his fears on returning to Malaysia. The applicant provided some information about his experience borrowing money in Malaysia, and told the Tribunal that he did not fear returning to Malaysia for this reason.
The Tribunal asked the applicant about his experience in this area. The applicant’s evidence was very vague and limited. He stated that he borrowed [an amount of] ringgits from private lenders. The Tribunal asked why he had borrowed this money. The applicant was vague and contradictory as to why he had borrowed the money, he stated he had not been paid for some work by his employer, then stated that he was the employer and he had to pay people who worked for him. The Tribunal noted that the applicant had not identified in his application that he had ever had his own business, his application stated he was employed from 1995 to ‘present’ as [his occupation]. The applicant stated he could not get money from the project manager.
The Tribunal asked what debts he had. The applicant stated he owed money on his car and for his mortgage. The Tribunal asked if the applicant owed any money to the private lender. The applicant stated he had paid most of it off, and only owed a small amount.
The Tribunal asked if the applicant had been threatened or harmed because of this debt. The applicant stated he was chased and threatened to pay the money back. The Tribunal asked if the applicant had gone to authorities to report the threats. The applicant initially said he had not approached the authorities. He then stated he had, but they could not protect him. The Tribunal noted he was changing his story.
The Tribunal asked if the applicant had ever been physically harmed. The applicant stated that he had not been. He then stated he had been, but this was a long time ago when he was working. The applicant stated he had been in an argument with some other people and had been stabbed twice. The Tribunal asked if the applicant had any scars from the stabbing. The applicant first stated that he did not, the knives were not sharp. The Tribunal noted he had said he had been stabbed, which was a fairly serious incident. The applicant then stated that they had used the handle of the knife to hit him.
The Tribunal asked if there were any other incidents of violence or threats. The applicant stated there were not. The Tribunal noted that in his application he had claimed to have been hit by an ashtray in his head and knee by the money lender. The applicant stated that this was not correct.
The Tribunal has considered this evidence of the applicant. The evidence regarding harm is of significant concern to the Tribunal. He has acknowledged that the claim that he was hit by an ashtray was not a true claim. His claim that he was in a fight related to his employment is full of inconsistencies and implausibilities, including that he was ‘hit’ with the handle of the knife, after he had first said he was stabbed, then stabbed with a blunt knife. The Tribunal considers that the applicant concocted this evidence at the hearing.
With respect to being chased and threatened over money owed, again the applicant’s evidence was limited, vague and inconsistent. He provided no further information about this incident. Given the very limited information and issues with this evidence, the Tribunal does not accept that the applicant was chased and threatened because of the money he owed.
The Tribunal does not accept that the applicant was ever threatened or harmed in Malaysia.
The Tribunal also does not accept that the applicant has ever approached the authorities regarding any difficulties he faced. The applicant’s evidence was inconsistent and contradictory, and given the Tribunal overall concerns regarding his evidence, and the finding that that the applicant was never threatened or harmed in Malaysia, the Tribunal does not accept that the applicant ever approached the authorities regarding any difficulties he had in Malaysia.
The Tribunal has considered the applicant’s claim that he owes money to a money lender. The applicant has been consistent in this claim, though the Tribunal has significant concern regarding the amount that was owing. The applicant’s evidence as to why he needed to borrow money was vague and inconsistent. However the Tribunal does note that the applicant has stated that he has paid back almost all of the money he owed, and his statement that he does not fear returning to Malaysia for this reason.
The Tribunal finds that the applicant borrowed some money from a money lender in Malaysia but that he has repaid the majority of this money. The Tribunal finds that the applicant has never been threatened or harmed because of his owing money to a money lender. The Tribunal finds that the applicant does not have any subjective fear of harm from the money lender, and will not be harmed by the money lender on return to Malaysia.
The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for this reason.
The Tribunal asked, if he did not fear harm returning to Malaysia because of the money lender why he had lodged his protection visa application. The applicant stated he feared harm because of discrimination. The Tribunal asked how discrimination had affected him, a Chinese Malay citizen. The applicant stated that elections were messy, it was hard to do business and ethnic Malays robbed and beat Chinese with impunity, stopping their business. The Tribunal asked if the applicant had ever been harmed in this way. The applicant stated he had not, but he was in danger.
The Tribunal acknowledged that there some laws in Malaysia that provided benefits to Malaysian citizens of Malay ethnicity. The most recent DFAT report on Malaysia states
3.2 The Constitution gives ethnic Malays and other indigenous groups, collectively known as bumiputera, special status. Government regulations and policies implement preferential programs to boost the economic position of bumiputera. Such programs promote increased opportunities for bumiputera to access higher education, careers within the public service, commercial opportunities and housing.[1]
[1] DFAT Country Report Malaysia, 3 December 2014
However the Tribunal questioned the proposition that other ethnic groups faced danger, or discrimination that could be described as serious or significant harm.
The Tribunal noted that there was no restriction on political activity, that the second largest party in Malaysia was a multi-ethnic party called DAP. The Tribunal noted that relevant country information, such as that from DFAT and the US State Department did not identify there being such violence or danger. Again, the DFAT report states:
3.9 DFAT assesses 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.

The applicant has not claimed to have been denied the right to vote or seek opportunities available to him. The Tribunal noted that the applicant had stated that he had been employed as [his occupation] from 1995 to present, which demonstrated that he had not been denied an opportunity to get work. The applicant stated that the employment had been up and down occasionally. The Tribunal does not consider that this was due to any form of discrimination, but due to economic factors. The applicant was working prior to coming to Australia.
The applicant has not been robbed or threatened or denied opportunities to work in Malaysia because of his ethnicity or any form of discrimination against Chinese Malays or for ethnic Malays. The Tribunal considers that the applicant’s evidence in this regard is pure speculation, seeking to find any reason why he should not return to Malaysia, rather than any real chance or real risk of harm. The Tribunal considers that the applicant stated he feared harm for this reason because he had no other reason for not returning to Malaysia.
The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for this reason.
The Tribunal finds that the applicant does not have a real chance that, if returned to Malaysia, that the applicant would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a). The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons.
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).
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from money lenders or discrimination as a Chinese Malay if he returns to his home in Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugee Convention definition. It follows that the Tribunal is not satisfied that there are 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 the applicant 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).
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.
Stuart Webb
Member

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 3525

15 October 2015

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice