1512418 (Refugee)

1512418 (Refugee) [2015] AATA 3903 (16 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512418
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Nicole Burns
DATE:16 December 2015
PLACE OF DECISION:  Melbourne
The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 December 2015 at 5:00pm
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] June 2015. The delegate refused to grant the visa [in] August 2015.
The applicant appeared before the Tribunal on 7 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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
According to information on the Departmental file and confirmed at the Tribunal hearing, the applicant is a [age] year old man born in Palau Pinang, Malaysia.
The applicant presented his claims in his protection visa application [in] June 2015 and in a written statement that accompanied his application as follows:
In Malaysia, especially places whose population are mainly Muslims, there are strong limitations on freedom of speech. Those Muslims believe that the Islamic criminal law should used as laws for the whole Malaysia. I am I am an activist in making changes. I have participated in many demonstrations for changes. I wish the government can treat the three majority races and minority races the same. The government should not use Islamic criminal law to people other than Muslims. I do not support and very against implementing Islamic criminal law to the whole country. Hence, the Malaysia Islamic Welfare Organisation Union dislikes me. This Union wants to say that I purposely talk about racially sensitive topics and wants to create troubles. They ask the police to arrest me under Internal Safety Orders. They also threat that they will judge my family as Islamic criminal law. I feel my family and I have very serious safety concerns. The Malaysian government cannot give me protection, so I choose to leave Malaysia and come to Australia. I hope that the Australia government will protect me.
...who advocate for implementation of Islamic Criminal Law worldwide. I was a participant for social movements. I was involved in several activities for social movements, hoping that the Malaysia government can treat the three majority races and minority races equally and do not forcefully apply Islamic criminal law to non-Muslims. I do not support and am strongly against the implementation of Islamic criminal law countrywide. Malaysia Islam Welfare Organisation Union is offended by my behaviour and attempted to frame me of a crime of causing instability of society by deliberately emphasis on racial sensitive topics, requesting the police to arrest me under Internal Security Order and threatening that they will execute my family in accordance with Islamic criminal law. I feel that the personal safety of my family and me are under serious threats. Since the Malaysia government cannot provide me with any protection, I chose to leave Malaysia and come to Australia, hoping that the Australia government can offer some protection.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a valid Malaysian passport and states that he is a national of Malaysia. The delegate had no issues with the applicant’s identity. Therefore the Tribunal has assessed the applicant’s claims against Malaysia as his country of nationality.
The applicant told the Tribunal that prior to his departure from Malaysia in December 2013, he was living in Palau Pinang with his parents and working as vendor selling [specific] and miscellaneous items. He claims he left the country because he participated in a protest against the closure of Chinese schools in August 2013, discussed in more detail below.
At the Tribunal hearing the applicant said he attended activities and protests occasionally in the past in Malaysia to preserve their rights as ethnic Chinese, starting from about two years prior to his departure from Malaysia in late 2013. He told the Tribunal that he participated in a protest against the closure of Chinese schools in his home area around August 2013, organised by Chinese community leaders. He said a ‘pro-Malay’ organisation called “Islamic Welfare Organisation” had lobbied the government to close the schools. About 700 to 800 people attended the protest, held in the capital, on the street. During the protest the applicant said some Islamic extremist groups threatened the protesters and they disassembled. Asked what group specifically the applicant said the group he had mentioned earlier (Islamic Welfare Organisation). Members of that group told the protesters that they were not native born and to go back to China. They were armed with iron bars and wooden sticks. The police intervened and blocked them. The applicant said he found out from his friends who were arrested that the Islamic Welfare Organisation had called the police after the protest and claimed that Malaysia belonged to Malays, that the Chinese were trying to overturn the government and that they should be arrested.
The applicant said he is afraid that if he returns to Malaysia the Islamic Welfare Organisation will do something terrible to him. He is also fearful that he will be arrested because many of his friends were arrested. He said since he left Malaysia some people have visited his parents’ house “a few times” in the period from September 2013 to February 2014. Their identity is unclear but he speculated that they may have been undercover police officers or investigators. Noting that the applicant was still in Malaysia until December 2013, the applicant said he was too fearful to stay at home and hid in various locations with family and friends.
For reasons set out below the Tribunal has a number of concerns about the applicant’s claims.
First, the applicant’s oral evidence about his political activism and reasons he fears harm on return as a result was inconsistent with his claims presented in his written statement to the Department in key respects. For example, in his written statement he claimed that the Islamic Welfare Organisation Union disliked him because he was against implementing Islamic criminal law to non-Muslims; that they asked the police to arrest him under the Internal Safety Order (also referred to as Internal Security Order) and that they have threatened they will judge the applicant’s family under the Islamic criminal law. He also claimed they have attempted to frame him of a crime of causing instability of society by deliberately emphasising racially sensitive topics. However at the Tribunal hearing the applicant said he fears the Islamic Welfare Organisation because he participated in a protest against the closure of Chinese schools in his area (he was vague about whether the schools had actually closed). He did not mention anything about the imposition of Islamic criminal law on non-Muslims, except toward the end of the hearing when asked specifically about this concern as set out in his written statement. The applicant said that people from the Islamic Welfare Organisation had mentioned that law when they had visited his parents a few days after he attended the August 2013 protest. This last point contradicts the applicant’s earlier oral evidence that he did not know who visited his parents, speculating that it was undercover police or investigators (not members of the Islamic Welfare Organisation).
Second, the applicant failed to mention the August 2013 protest and what allegedly happened afterwards as a result of attending that protest in his written claims to the Department. At hearing the applicant said his lawyer advised him to put the number of protests he attended but not the details. The Tribunal is not persuaded by this explanation and, when combined with other concerns with the applicant’s case, finds this omission casts doubt as to whether the applicant attended the protest at all.
Third, the Tribunal found aspects of the applicant’s oral evidence about the August 2013 protest and arrests of his friends to be vague, lacking in details and at times confused. For instance, the applicant said many of his friends were arrested after the protest and when pressed said about seven or eight friends were arrested. However he was unable to say specifically why they were arrested – apart form stating they were stirring up the people – and was vague about what actually happened to his friends and their current status, concluding that he thinks some are out on bail and some still in gaol. Even if the applicant was confused about the reasons for their arrest at the time, and whether or not they were actually charged and prosecuted, the Tribunal notes that some time has now passed since that event and the Tribunal would expect the applicant to have been better informed about what had happened to his seven to eight friends as a result of their attendance at the August 2013 protest.
The Tribunal also notes that, on the applicant’s own evidence at hearing, he went to [another country] for two weeks at the end of 2013, before returning to Malaysia prior to departing to Australia. Asked why he returned to Malaysia if he was afraid of the government and/or Islamic Welfare Organisation as claimed, the applicant said because he had no choice because his flight departed from Malaysia. He said that he hid at the airport for the day. The Tribunal notes that is of the view that if the applicant genuinely feared serious harm from the government or Islamic groups as claimed, he would not have returned to Malaysia at that time, or he could have made arrangements to alter his flight.
Further, the Tribunal notes that the applicant departed Malaysia on his own passport issued in his name, which indicates that he was not of adverse interest to the Malaysian authorities for any reason at that juncture. When this matter was discussed at hearing the applicant said that he was not on a wanted list because he had not committed any criminal offence but he is afraid they will make a sudden move and arrest people out of the blue, like what happened to his friends. For reasons above the Tribunal does not accept the applicant’s claims that his friends were arrested and therefore does not find this explanation persuasive.
For these reasons the Tribunal does not accept that the applicant was involved in any protests which could be construed as pro-Chinese and anti-government in the past in Malaysia, including the protest in August 2013 allegedly against the closure of Chinese schools in his area. The Tribunal does not accept that his friends were arrested in respect to this protest. It follows that the Tribunal does not accept the applicant’s claims that people – possibly undercover police officers – have visited his parents’ house looking for him a few times after the protest. The Tribunal does not accept that the applicant was politically active at all in the past in Malaysia and therefore finds he does not face a real chance of persecution at the hands of the government or Islamic groups such as the Islamic Welfare Organisation on account of his political opinion or for any other Convention reason on return to Malaysia now or in the reasonably foreseeable future. His fears of persecution on this basis are not well founded.
In reaching this conclusion the Tribunal has also taken into consideration the fact the applicant arrived in Australia [in] December 2013 yet did not seek protection until June 2015, despite the fact that he claimed he left Malaysia because of these alleged problems he had with the Islamic Welfare Organisation. It is well established that delay in applying for refugee status is a relevant consideration. In Anandaraj Subramaniam v MIMA (unreported, Federal Court of Australia, Carr J, 10 March 1998) Justice Carr agreed with Heerey J in Selvadurai v MIEA & Anor (1994) 34 ALD 346 as a matter of principle that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least depth of an applicant’s fear of persecution. His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The Tribunal does not find the applicant’s explanation for the delay he gave at the hearing that he was new in Australia, did not know the language or where to start, and that he only recently met some people who told him where to apply to be persuasive. When combined with other concerns about the applicant’s claims, the delay in the applicant seeking asylum leads the Tribunal to not accept that the applicant’s claims are credible or that he has a genuine fear of persecution if he is returned to Malaysia.
Other matters:-
As mentioned, in his written statement submitted to the Department the applicant claimed that Muslims believe Islamic criminal law should be used as a law for all Malaysians. When the Tribunal asked the applicant toward the end of the hearing about his claims in this respect, the applicant said they used to have laws like in England or Australia but now have two legal systems and two court systems. His concern is that ‘they’ want to deal with people like him using the Islamic law. As mentioned, he said that the people from the Islamic Welfare Organisation who visited his parents referred to this law, threatening to use it (and violence) to deal with ‘them’ (that is Chinse Malaysians). For reasons above the Tribunal does not accept the applicant’s claims that members of the Islamic Welfare Organisation visited his parents as claimed. It follows that the Tribunal also does not accept that the Islamic Welfare Organisation or any other Islamic group has threatened to use the Islamic law against the applicant or his family, or to use violence against them, or have asked the police to arrest the applicant or attempt to frame him for a crime as claimed. The Tribunal finds the applicant does not face a real chance of being harmed by the Islamic Welfare Organisation or any other Islamic group through the implementation of Islamic criminal law or through any other means on return to Malaysia in the foreseeable future. His fears of persecution on this basis are not well founded.
The Tribunal notes in his written statement to the Department the applicant also states that there are strong limitations on freedom of speech. Whilst that may be the case to some extent, the applicant has not elaborated on his claims in this respect, despite having the opportunity to do so at hearing, and did not provide details as to why he may fear harm on return to Malaysia on the basis of limitations on freedom of speech. Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on this basis.
Ethnicity
At the Tribunal hearing the applicant claimed to fear persecution on return to Malaysia on account of his Chinese ethnicity. The Tribunal accepts that the applicant is Chinese Malaysian. However, for the following reasons it does not accept that the applicant faces a real chance of persecution on the basis of his ethnicity on return to Malaysia in the foreseeable future.
At hearing when asked if he has experienced any problems in the past on the basis of his ethnicity in Malaysia, the applicant replied that Chinese Malaysians are like second or third class citizens; that no policies are made in their favour; that there are special payments and allowances for Malays; if they open a business they have to give 30 per cent to Malays; Malays are entitled to 20 per cent discount when they buy property; and Malays have free education. However the Tribunal notes that he did not provide any specific examples and did not claim to have personally experienced discrimination or harm on the basis of his ethnicity in the past in Malaysia.

Looking to what might happen to him on return to Malaysia in the future as an ethnic Chinese Malaysian, the Tribunal has had regard to Australia’s Department to Foreign Affairs and Trade (DFAT) country report on Malaysia. It states, among other things, that there are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia. DFAT also assess that ethnic Chinese generally do not experience discrimination or violence on a day-to-day basis[1].
[1] DFAT Country Report Malaysia 3 December 2014 at 3.5 and 3.9
When this information was discussed at the hearing the applicant said he thinks the information from DFAT is superficial, only showing how things appear on the surface. He said it is a fact that Malays have a lot more privileges than Chinese Malaysians and it is undisputable that they have favourable treatment. He said further that ‘they’ are very hostile to people like him who participate in political activities. The Tribunal has had regard to the applicant’s concerns on the basis of his Chinese Malaysian ethnicity. However, taking into account the DFAT advice as set out above including that ethnic Chinese generally do not experience discrimination or violence on a day to day basis and given that the Tribunal is not satisfied that the applicant has experienced problems on the basis of his ethnicity in the past in Malaysia, the Tribunal finds remote the chance the applicant would be seriously harmed on return to Malaysia on the basis of his ethnicity. His fears of persecution on this basis are not well founded.
Based on the above, the Tribunal does not accept that the applicant was ever politically active in Malaysia and does not accept that he was of adverse attention to the authorities and/or Islamic groups as a result. Therefore the Tribunal does not accept that if he returns to Malaysia he faces a real chance of persecution from the authorities or the Islamic Welfare Organisation or anyone else on the basis of his actual or imputed political opinion or for any Convention related reason. The Tribunal also finds that the applicant does not face a real chance of persecution on return to Malaysia on the basis of his ethnicity. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1). The applicant does not meet the refugee criterion in s.36(2)(a).
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from the government and/or the Islamic Welfare Organisation or any other Islamic group on account of his political opinion, ethnicity or for any other reason. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in 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.
Nicole Burns
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 3903

16 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction