1512001 (Refugee)

1512001 (Refugee) [2016] AATA 3547 (16 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512001
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Stuart Webb
DATE:16 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 March 2016 at 4:22pm
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] September 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] April 2015. The applicant provided a copy of the delegate’s decision to the Tribunal. The applicant did not attend an interview with the Department. The applicant attended a hearing with the Tribunal on 16 March 2016. An interpreter assisted her at the hearing though the applicant spoke primarily in English. 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 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’s claims as detailed in her application[1] were accurately reflected in the delegate’s summary of protection claims. This stated that:
·She comes from a small village called Sabah. There is no racial harmony and she has felt insecure since she was young. There is little chance of being enrolled in higher education. The issue of religion and race is still a barrier among the different races, despite the Malaysian Government's initiatives to boost cooperation among Malaysians regardless of race or religion.
·She is Roman Catholic.
·She fears religious suppression and racial discrimination if she returns to Malaysia.
·Security is a problem in the state she lives in.
·In Sabah she was in a relationship with a Muslim boyfriend. His family did not accept her because she is not a Muslim. She and her boyfriend stayed with his family. They treated her as a slave and used bad language against her. She was tortured and humiliated. They pressured her to follow Islam but she refused. His family asked her to leave their son, and called her a prostitute. His family found a Muslim lady and married her to their son.
·If she returns to Malaysia, she will be pressured to convert to Islam by Muslim fundamentalists. The authorities will not protect her, and will refuse to help her because she is not Muslim[2].
[1] DIBP Folios 38-39
[2] AAT Folio 6
Elsewhere in her application she identified herself as being of Kadazan Dusun ethnicity.
The delegate noted that the applicant arrived in Australia on a [temporary] visa valid for 3 months [in] May 2013. The visa expired after 3 months and the applicant did not leave Australia. She applied for the protection visa [in] April 2015.
The delegate noted that the Kadazan Dusun ethnicity is a Catholic bumiputera group, and one of the most populous in Sabah. Some country information was referenced to state that there was some discrimination towards some indigenous groups like the Kadazan Dusun. The delegate noted that the applicant had education and employment in Malaysia, and was able to get a passport. The delegate did not accept that the applicant faced persecution amounting to persecution on return to Malaysia.
The delegate considered the issues arising from the applicant’s Catholic religion and claimed relationship with a Muslim. The delegate noted that her boyfriend’s family had married him to a Muslim woman. The delegate did not accept that the applicant would be forcibly converted to Islam. The delegate also noted that the applicant could practice her religion freely.
With respect to the security issues in Sabah, the delegate noted DFAT considered the threat of crime and terrorism in Malaysia to be relatively low. Given the limited information, the delegate did not consider this claim made out.
The delegate was also concerned with the delay in lodging the visa application, noting that the applicant arrived in May 2013 and did not apply for asylum until almost two years later.
Findings and reasons
Country of nationality
The applicant claims to be a citizen of Malaysia and provided a copy of her passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia, and 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.
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 notes that it is also 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 Tribunal discussed the applicant’s claims with her at the hearing. The applicant made a significant disclosure to the Tribunal with respect to her claims for protection, her fear of returning to Malaysia and the reasons she came to Australia.
The applicant stated she had come to Australia to work. She disclosed that her father had a [medical condition]. Her mother has had to stop work to provide care for him. The medication and treatment for her father is expensive. In 2013 she was working in Kuala Lumpur. She saw an advertisement in the local paper regarding the salary opportunities in Australia. She stated that she came to Australia to work to assist in paying for her father’s treatment, the money that she can earn in Australia is better than that in Malaysia. She is also paying for her [sibling]’s education, she is the main income earner for the family. The applicant stated she wanted to remain in Australia to work. The Tribunal noted that while it sympathised with her reasons for coming to Australia, her working to assist her family did not provide a ground for a protection visa for her. The Tribunal noted that that’s this disclosure caused it to have significant concern regarding her protection visa application, including that she did not have a fear of harm on return to Malaysia, as required for the grant of a protection visa. The applicant accepted this statement, but requested that she could stay to provide financial assistance to her family.
The Tribunal discussed her claim that she may be forced to convert to Islam from her current Christianity. The applicant stated she moved from her village to a larger town to study. She struggled to continue her studies due to the need to work. She met a Muslim man and entered a relationship with him, around 2008. His father was nice to her, but his mother was not, she was rude to the applicant, using ‘rough words’. His siblings were not much better. He invited her to move in with him in his family home, and despite her issues with his mother she agreed. The applicant could not recall when she moved in. In her statement with her application the applicant had stated she was treated like a slave, though she did not repeat this at the hearing. She was not physically harmed by her boyfriend’s family, and the Tribunal notes that the applicant is now claiming that it was not the whole family who had aid nasty things to her, it being predominantly her boyfriend’s mother.
In 2012 his mother arranged a marriage for the applicant’s boyfriend to a Muslim woman. This was in early 2012. The applicant stated she was told she could convert to Islam to become the second wife, an offer she refused. The applicant broke up with her Muslim boyfriend in mid-2012.
The applicant stated she feared getting in trouble with the religious police because of her having a relationship with a Muslim man without getting married. The Tribunal noted that this was known as ‘Khalwat[3]’, and that as she was not a Muslim she did not face any prosecution under this law, as Syariah law does not apply to non-Muslims in Malaysia. The Tribunal noted that the applicant had not converted to Islam, and stated that she had no intention to do so. The Tribunal finds that the applicant will not convert to Islam and will not be ostracised for not doing so.
[3] Primarily known as being with a woman ‘in a secluded place or in a house or under circumstances which may give rise to suspicion that they were engaged in immoral acts’
The Tribunal noted that the relationship had been over for almost four years, and that she and her ex-boyfriend had moved on. The Tribunal noted that the applicant had gone to Kuala Lumpur to work, though she was happy to return home to discuss how to care for her father when he got sick. The applicant stated that she had not more contact with her ex-boyfriend or his family since she broke up. She has not had any issues at all with any Muslim groups, including any religious police.
The Tribunal does not accept that the applicant has a real chance of serious harm or a real risk of significant harm arising from her relationship with a Muslim man in the past or her attitude towards Islam. The relationship is over, and the applicant has no further contacts with them, including her ex-partner’s mother whom she said was rude to her and made her do work in the family home for the short period she lived there. The applicant never got into trouble with any religious authorities at the time of the relationship, despite not being a Muslim. She accepted that the religious laws did not apply to her as she was not a Muslim. She agreed that Islamic fundamentalists were not going to harm her now that the relationship was over. The applicant did not raise any concern regarding Islam itself at the hearing.
The Tribunal does not accept, that on return to Malaysia in 2016 and in the future, that the applicant will face serious or significant harm because she had a relationship with a Muslim man until 2012. The Tribunal does not accept that anyone will seek to force her to convert, or that the applicant will convert to Islam. Further, the Tribunal does not accept that the applicant will be harmed because of Islam itself. The applicant may not appreciate the limitations placed on Muslims in Malaysia, but she was not harmed because of these limitations in the past, and the Tribunal does not consider that she will be harmed for this reason in the future. The Tribunal finds that the applicant does not have a real chance of serious harm for these reasons. The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons.
Further, considering the evidence as discussed above, the Tribunal finds that the applicant does not have a real risk of significant harm for these reasons.
The Tribunal identified in her application that the applicant had claimed that she feared harm because of her religion and her ethnic group, the Kadazan Dusan, a Catholic Bumiputera group. The Tribunal asked if the applicant had any fear of harm for these reasons. The applicant stated she did not.
The Tribunal noted country information that Christians are able to freely practice their religion in Malaysia. As discussed with the applicant, DFAT reports that:
3.32 Malaysian Christians represent close to 10 per cent of the total population. A broad range of ethnicities practice Christianity.
3.33 While Christians are generally free to practice their religion, official impediments have been placed on their use of the word “Allah” (Arabic for God). Malaysian Christians claim to have used the word “Allah” for centuries to practice their religion. The Home Affairs Ministry banned the Catholic newspaper, The Herald, from using the word “Allah” under the Printing Presses and Publications Act 1984 in 2008. The Malaysian Court of Appeals and Federal Court upheld the ban.
3.35 Despite these incidents, DFAT assesses that Malaysian Christians are generally able to practice their religion without interference and do not face discrimination or violence on a day-to-day basis[4].
[4] DFAT Country Report Malaysia, December 2014
The applicant has not claimed to have been harmed because of or prevented from practicing her religion. The Tribunal considers that the applicant would be able to practice her religion without limitation in Malaysia, including on return. The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.
The Tribunal asked the applicant about her ethnicity. The applicant confirmed that her ethnic group was a significant group in her area, and that she had not been harmed or mistreated because of this reason. She had been able to study and work in Malaysia, though she did not consider the wages to be very high. The applicant did not disclose at the hearing any discrimination that she had suffered or feared that she would suffer in the future. She did not elaborate on her initial statement that she feared harm when she was young.
The Tribunal has considered this claim. The Tribunal again notes DFAT information that:
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[5].
[5] Ibid
The applicant claims to be a member of the bumiputera, but one that is Christian, not Muslim. She has not been mistreated or missed out on opportunities because of her ethnicity, the claim that she faces discrimination for this reason is not demonstrated from her past experience. She has been able to enrol in a course, though she did not complete it, and was able to find work, including in Kuala Lumpur. She has not been harmed for this reason.
The Tribunal considers that this claim is not made out. The Tribunal does not accept that the positive treatment for Muslim bumiputera in Malaysia will affect the applicant in her circumstances, or that she will be harmed, mistreated or discriminated against because of her ethnicity in the future. 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 notes that the applicant had stated that security was a problem in her state. However at the hearing the applicant did not disclose any such difficulties for herself, stating that she was able to go and live, study and work in Sabah without any such concern. The applicant has not elaborated on this claim nor discussed any security issues arising in her home region, either for herself or generally. The Tribunal does not consider that this claim has been made out. The Tribunal does not accept that the applicant has a real chance of serious harm or a real risk of significant harm for this reason.
For completeness, the Tribunal has considered the reason the applicant provided at the hearing, that she came to Australia for financial reasons, and wants to remain in Australia so she can support her family, in particular her father and his illness. The Tribunal noted that the applicant had been able to work in Malaysia, and could so again, which the applicant accepted, but agreed with the applicant that income in Australia would be higher. The Tribunal noted that the applicant would be in a position to support herself by working, and did not face destitution that could be described as serious or significant harm on return to Malaysia.
While the Tribunal commends the applicant in her interest to support her father and his treatment, the Tribunal does not accept that the applicant’s concerns for her father and financial interests to support her family generally provide a reason for the grant of a protection visa. The applicant is not denied work rights or opportunities in Malaysia, while the applicant may be able to receive higher wages in Australia she will not be unable to earn an income in Malaysia. This includes income to support her father and his treatment. While it may be difficult, the Tribunal does not consider that this provides a reason for a grant of a protection visa. 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.
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).
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.
…

[2016] AATA 3547

16 March 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice