1512314 (Refugee)

1512314 (Refugee) [2016] AATA 4028 (15 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512314
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Stuart Webb
DATE:15 June 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 June 2016 at 3:05pm
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] July 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] December 2014. The delegate refused to grant the visa on the basis that there was so little detail as to his claims of fearing harm from his headmaster that the claim was unsubstantiated.
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 made the following claims in his application. He was victimised as a student by his headmaster, who did not like him and made false reports about him. If he returned to Malaysia the headmaster would kill him, he has already been hospitalised after being beaten by friends of the headmaster. The police have received reports about him and would believe the headmaster.
The Tribunal notes that the applicant provides information that he was born in [year]. He has provided no information about his education in Malaysia, and states that he runs his own business. He provided only one address in Malaysia as his residence in the last 10 years.
The applicant provided part of the delegate’s decision to the Tribunal. This included the applicant’s migration history. It was noted that the applicant arrived in Australia [in] December 2013 on a 3 month visitor visa. It expired [in] March 2014. He remained in Australia and lodged his protection visa [in] December 2014. He was invited to arrange an interview with the department to discuss his claims, but made no further contact.
Findings and reasons
Country of nationality
The applicant claims to be a citizen of Malaysia and provided a copy 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.
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.)
Claims
As discussed at the hearing, the applicant claimed he was studying an [name] course in Kuala Lumpur in 20009. The applicant stated had a dispute with a lecturer at a course he was attending, leading to some violence against the applicant. The applicant wanted to have a break during his course, in 2009, and his lecturer said no, saying some derogatory things about the applicant and his religion. The applicant argued back.
A week later the applicant was assaulted and hit with a bottle. He has a scar on his [body part], though it did not require medical attention. A month later he received a call demanding money ‘for hitting the lecturer’ and threatened with being burnt. The applicant left the class and returned to his family, where he worked in the family business. He claims that there were ongoing threats of violence over the phone, including in 2016.The applicant fears the lecturer and his associates. He also is sad that he has missed
The applicant confirmed that he had been working at his family business in Johru Bahru since he left the course until coming to Australia in December 2013. He has been living in his family home during this time.
Refugee Nexus
If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c). The Tribunal explained at the hearing that the claims of the applicant do not appear to have any connection to these grounds. The applicant made no submission on this issue.
The Tribunal considers that the evidence of the applicant does not disclose any ground as defined under s.5J(1) of the Migration Act. 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. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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.
The Tribunal discussed the applicant’s claims of fearing harm from his former lecturer and his associates. The Tribunal noted that the applicant had not submitted in his original application any information about ongoing phone calls being made, either to him or his parents. This was a significant omission. The applicant stated that a [nationality] man had helped him write the application but did not include this.
The Tribunal asked the applicant why he did not change telephone numbers if he was concerned about calls. The applicant stated that these people had found his and his parent’s numbers.
The Tribunal expressed its significant concern with this element of the applicant’s evidence. The Tribunal stated that it found it strange that no mention whatsoever was made of any threatening phone calls, despite these being the ongoing fear that the applicant had. That the person who assisted the applicant to write his application did not include this in his application is very strange, given the importance that the applicant was now giving it. The Tribunal does not accept that such an element would be left out of the applicant’s application, even if it was dictated to another person. The Tribunal considers that the credibility of this claim is affected by this omission.
The Tribunal also discussed its concern that the lecturer or associates of the lecturer would seek to harm the applicant for the dispute that occurred in 2009. An argument occurred in class where derogatory words were used. That this has become an incident that the applicant claims has led to violence and threats over the phone for the next 7 years is a claim that the Tribunal had significant concern with. The Tribunal expressed its concern that the repercussions of an argument would lead to this lecturer tracking down the applicant’s and his parent’s telephone numbers, even when changed, and making ongoing threats, the applicant claiming the most recent one being two days prior to the hearing. The Tribunal expressed its concern that these calls would continue to be made. The applicant has not claimed that any actual approach has been made to him or his family during this time, despite the applicant living at a fixed address since returning to Kota Bahru and working at the family business. Had the lecturer and his associates wanted to harm the applicant, they would have had the opportunity to actually harm the applicant, given the apparent ease they had in finding the applicant and his family. The Tribunal considers that this is a reason why the applicant’s claim in this regard are not credible.
The Tribunal asked the applicant whether he had gone to the police on any occasion to report the violence or the threats being made against him or his parents. The applicant stated he had not. The applicant said he had not, he stated that Malaysian police were corrupt. He also stated that they would not listen to anyone if they did not pay money. The lecturer would be able to pay more money.
The Tribunal is concerned that the applicant did not go to the authorities in the circumstances at the time of the dispute, the claimed incident a week later, or any time since. The Tribunal expressed its significant concern at the applicant’s failure to avail himself of state protection, that he had not gone to the police on any occasion. The Tribunal noted that the lecturer, who was not a Muslim, had made derogatory comments about Islam. The Tribunal noted that derogatory comments about Islam was taken very seriously in Malaysia, given Islam was the official religion, and thus the applicant’s fear about going to the police in such circumstances was very strange. The Tribunal considers that had the applicant complained about the derogatory statements to the police the police would have been interested in such a complaint.
The Tribunal further expressed concern regarding the applicant’s claims around his injury. The applicant has a scar on his [body part]. However, the applicant’s story regarding how this occurred is difficult to accept. Claimed to have been glassed by a bottle, the applicant did not require medical assistance, which, while the Tribunal acknowledges that it is no expert in medical matters, seems unusual for what the applicant claims is a significant injury.
Further, having been hit in this way, the fact that the applicant did not report this to the police is of significant concern. He had no reason not to do so, he had not been warned to not speak to the police. The Tribunal considers that the applicant’s failure to report this alleged assault to the police when there was no reason not to causes there to be significant concern as to the veracity of this claim. The Tribunal has significant concern regarding the claim that the applicant was harmed in the manner he claimed, given what would otherwise have required medical treatment. The Tribunal accepts that the applicant has a scar. The Tribunal does not accept that the scar was caused because of an assault arising out of his dispute with the lecturer.
Further, the ongoing failure to report threatening phone calls to the police is of concern to the Tribunal. The applicant stated that he feared going to the police would make it worse. The Tribunal does not accept this claim, as it considers that the police would have an interest in protecting a family if calls of this nature were being made. The Tribunal does not accept that subsequent threatening phone calls have been made to the applicant or his family, calls the applicant chose not to mention in his application. The Tribunal considers that this absence of calls is the reason why the applicant has not been to the police to report this matter.
The Tribunal has consider the claims of the applicant that he will be harmed on return to Malaysia. The Tribunal accepts that the applicant had an argument with a lecturer in 2009, which may have included derogatory terms. The Tribunal considers that this matter was resolved at the time, and that the applicant and his family have not been subsequently harmed or threatened due to this dispute.
The Tribunal does not accept the following:
·That the applicant has subsequently received any phone calls threatening him arising out of this incident
·His family has received any threatening phones arising out of this incident.
·The applicant was assaulted by a bottle in 2009
The Tribunal noted at the hearing that country information about the Royal Malaysian Police demonstrated that they had taken real action against the corruption that had caused difficulty with the police in the past. The Tribunal noted the DFAT report on Malaysia that:
5.1 Law enforcement entities operate at both federal and state level. The Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. The federal Department of Islamic Development (JAKIM) enforces sharia law and has jurisdiction over Muslims in Kuala Lumpur and the two other federal territories. The RMP and JAKIM operate independently and only occasionally work together. The Malaysian Army is not heavily engaged in domestic activities apart from some anti-terrorism campaigns and is not relevant to State Protection under this report.
5.2 The People’s Volunteer Corps (RELA), a federal paramilitary civilian corps under the jurisdiction of the Ministry of Home Affairs, assists security forces. RELA membership was 2.9 million in September 2013. RELA volunteers receive limited training. RELA’s engagement in law enforcement activities has significantly reduced in recent years.
5.3 State-level Islamic religious departments enforce sharia through Islamic courts and have jurisdiction over Muslims in each state. Sharia and the degree of its enforcement varies state by state. Some penalties imposed by sharia courts are limited by federal civil law.
Royal Malaysian Police (RMP)
5.4 As of 2011, the RMP employed approximately 102,000 officers and operated 837 police stations across Malaysia. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see ‘Police Integrity and Accountability’, below). The RMP is 80–85 per cent ethnic Malay. In 2014, the Government commenced a campaign to increase the number of women, ethnic Chinese and Indians in the RMP.
Police Integrity and Accountability
5.5 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged corruption within the RMP and 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.
5.6 There is no legal requirement for the state to investigate deaths in RMP custody. Investigations generally occurred at the request of the Attorney-General but were often instigated as a result of public pressure and were significantly delayed. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts (see –‘Detention Conditions—Deaths in Custody’, above).
5.7 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.

The Tribunal considers that this report, as is also noted in US State Department reports and other leading credible sources on Malaysia, demonstrates that the applicant’s negative attitude towards the RMP is founded on historical concern, and not based on the present circumstances as found in Malaysia. The failure of the applicant to avail himself of any protection in Malaysia is a significant concern to the Tribunal.
The Tribunal has considered the claims of the applicant regarding the effectiveness of the police. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
The Tribunal further notes that if the applicant or his family wishes to approach the authorities in the future, they could do so. The Tribunal considers that the applicant can obtain protection from the authorities should he avail himself of that assistance. The Tribunal considers that state protection is available to the applicant such that he does not face a real risk of significant harm for this reason.
Delay
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 applicant arrived in Australia in December 2013 but did not lodge his protection application until December 2014, and was unlawfully in Australia for over 9 months 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 about protection. The Tribunal asked why the applicant had left Malaysia and come to Australia if he did not know about protection. The applicant stated his uncle had helped him to leave. The Tribunal noted that refugee issues had been a significant matter in Australia for the last decade, including in non-English speaking communities, and found it difficult to accept that the applicant was unaware of the protection system.
The Tribunal considers that if the applicant genuinely had a fear of harm that led him to leave Malaysia, the Tribunal considers that the applicant would have approached the Australian authorities and sought protection far earlier, and not left it so long to seek protection. The Tribunal does not accept that ignorance would stop the applicant from seeking to lodge a protection visa for so long.
The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm on return to Malaysia.
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 4028

15 June 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice