1512519 (Refugee)

1512519 (Refugee) [2015] AATA 3735 (17 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512519
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Gabrielle Cullen
DATE:17 November 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 November 2015 at 1:50pm

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, was born in Perak and first departed Malaysia for Australia [in] July 2004. He has returned to Malaysia on a number of occasions[1], the last being from [January] 2014 to [February] 2015. Until [a date in] November 2014 he was the holder of a [temporary] visa. On [that date] he applied for a further [temporary] visa which was refused [in] February 2015.
[1] [travel detail deleted]
[In] March 2015 the applicant applied for a protection visa and claims to fear return as his brother owes gambling debts and told the debtors he, the applicant, would repay these debts, which he has been unable to do.
The applicant was invited to attend an interview at the Department [in] August 2015. The applicant did not attend the scheduled interview.
The delegate refused to grant the visa [in] August 2015 on the basis that the delegate was unable to verify the applicant’s claims and obtain substantiating detail. He found as a result he was unable to be satisfied that the claimed fear of persecution is well-founded or that he faces a real risk of significant harm in Malaysia.
The issues to be considered in this case are as follows.
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Migration Act?
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 Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.
·The protection visa application of the applicant dated [in] March 2015, identity documents and the attached statement.
·Oral evidence of the applicant provided at the Tribunal hearing on 16 November 2015.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
·DFAT Country Report Malaysia dated 2 December 2014.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The Applicant’s Claims
The applicant claims in his statement attached to his protection visa application that he came to Sydney in 2004 on a [temporary] visa. He claims as his [brother], [named] took the responsibility to look after him when he was young he often sent him small amounts of money via his parents. He claims [his brother] called him in 2008 advising he needed [over $20,000] for gambling debts. He claims he was shocked at this request and his brother confessed that he had been gambling for many years, dreaming of making a fortune one day. He claimed his brother indicated he had to ask for the money otherwise he would be killed. The applicant gathered [the money] and gave him an extra $3000 to subsidise his family.
He claims he did not hear much from [his brother] again until the beginning of 2014 when he received a call from his mother. His mother asked the applicant to bring as much money as he could to Malaysia as [his brother] had again borrowed money from people who practised usury. She advised [his brother’s] wife had left him and he was living with his mother. He claims his mother advised the debt collectors were hounding him every day and they had even threatened his mother. He claims his mother was scared the debt collectors would chop of his hands and feet.
The applicant claims he asked his mother to contact the police but she advised the police had connections to these people who practised usury and they were corrupt as well.
The applicant claims he returned home with USD $10,000 and he discovered [his brother] owed [over $100,000] in gambling debts. He claims when he went home, [his brother] advised the debt collectors that the applicant would pay off the debt as he was working in Australia and his salary was high. The applicant claims [his brother] advised the debt collectors to let him go and chase him (the applicant) for the money. The applicant was very angry but agreed that he would pay the debt, but they should not lend any more money to [his brother] nor bully their mother.
He claims he returned to Sydney one month later and started to save the money for the debt. He claims the monthly interest rate for usury is very high, at 28% and he thought he could pay off the debt but it became harder and harder.
He claims before the New Year in 2015 the debt collectors found [his brother] and beat him and threatened him with a knife. He claims the debt collectors asked him to tell the applicant to pay off the debt as soon as possible, otherwise they would kill [his brother]. He claims [his brother] was so scared he fled to [Country 1].
He claims on hearing his [temporary visa] was refused [in] February 2015 he was shocked. He claims he cannot go back to Malaysia and that he has to work to make money to pay the debt. He claims only when he has finished paying the debt can he return to Malaysia. He claims a week before the debt collector told his mother that he had to pay off the debt as soon as possible otherwise they would ruin him when he landed in Malaysia. He claims his mother told him to regularly pay the debt as soon as possible; otherwise his own life and that of his family are in danger in Malaysia.
At the hearing held on 16 November 2015 the applicant reiterated he feared return in Malaysia as a result of the debts of his brother. The Tribunal also raised with him it had concerns as to the credibility of his claims following questioning him as to those claims. Where relevant these are raised in the paragraphs below.
Assessment of Past Claims
On the basis of the applicant’s identity documents, including his passport and evidence provided at hearing the Tribunal accepts that the applicant is a national of Malaysia. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Malaysia is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Malaysia is the receiving country.
As to the applicant fearing return for the reasons he claims, or he, his brother and his family having faced the difficulties he claims in Malaysia, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness. For the reasons that follow it finds the applicant’s brother never had gambling debts, or either he (the applicant), [his brother] or his family were ever threatened or harmed because of these debts, including by the people who practiced usury. It finds the applicant’s testimony inconsistent and lacking in detail. This leads the Tribunal to find that the applicant is not a witness of truth.
Despite providing detailed claims as to why he fears return in his protection visa application being because of his brother’s debts as outlined in the paragraphs above, when asked why he fears return at the hearing before me the applicant could only provide general statements, lacking in any detail. For example when he was asked what he fears will happen to him on return to Malaysia and why, he said he is nervous and he does not know what to say. When I reminded him he had made an application for a protection visa and it is important that he explain to me what he fears in Malaysia and why; he responded he has to help his brother pay the debt. When I asked him if he feared returning to Malaysia; he said yes. When I then asked him what he fears will happen to him, who he fears and why he fears return; he responded his brother owes people money because a debt is not paid and he (the applicant) cannot go back. The Tribunal then asked him to him to expand and provide it with more detail as to why his brother’s debts affect him, his fear and why he fears return and who he fears; he responded because his brother owes money and it needs to be paid back and he (the applicant) cannot return. The Tribunal questioned why he fears return as a result of a problem of his brother; and the applicant did not respond. When I then asked if he wanted to add anything; he said he is nervous, that he does not know what to say and referred the Tribunal to read his statement attached to his protection visa application.
When I raised with him my concerns as to the credibility of his claims as his evidence appeared lacking in detail at the hearing before me; he did not respond. When I asked him if he had anything to say; he said no.
On the basis of the above the Tribunal finds that the evidence presented by the applicant to the Tribunal at hearing is not sufficiently detailed to enable the Tribunal to be satisfied his brother has been involved in gambling, has debts, both he and his family are being threatened, and his brother has advised that he (the applicant) is to pay the debts. It expects if both he, his brother and family faced the difficulties he claims as outlined in his protection visa application, including his brother being beaten and fleeing to [Country 1], the applicant being threatened with his life through his mother in the manner claimed he would be able to provide evidence at hearing similar in detail to that provided in his protection visa application. In contrast the applicant’s evidence at hearing was general and lacking in any detail as to what he fears on return, why and from whom. This leads me to find the applicant’s brother does not have debts, and the applicant, his brother, mother or family have not faced any of the difficulties he claims for the reasons he claims. This adds to my finding the applicant is not a credible witness.
In making this finding the Tribunal has considered the applicant’s claim that he is nervous and does not know what to say. While the Tribunal accepts the applicant may be nervous, it does not accept that being nervous is the reason why he could not describe in detail why he fears return. It expects that if true that the applicant fears serious harm and/or significant harm on return for the reasons he claims that he would be able to provide more detail than he has as to why, by whom and what. The Tribunal therefore does not accept that this explains or excuses his inability to provide detailed evidence as to his claims at the hearing before me.
Further, despite claiming in his statement attached to his protection visa application that his [brother] had to flee to [Country 1] before New Year 2015 because of being beaten and threats by the people who he had debts with; at the hearing before me when initially asked where his [number] siblings lived he said and confirmed that they currently live with his mother in Malaysia, and that they had always lived with his mother in Malaysia. The Tribunal also raised with him that in his application for a protection visa when outlining the details of his siblings, he indicated his brother [his brother], was currently living in Malaysia. When this inconsistency was raised with the applicant he said that it was not correct, he escaped. I do not accept this response and expect if the applicant’s brother was so fearful that he fled to [Country 1] in the manner claimed in his statement to avoid the debt collectors that the applicant would be consistent in his evidence as to where his brother is living. It leads me to find the applicant’s brother did not flee to [Country 1] in 2015 or at any time because he was beaten and received threats from the debt collectors. The applicant’s inconsistency in his evidence adds to my finding the applicant is not a credible witness.
Further, despite claiming in his statement attached to his protection visa application that he took $USD 10,000 home to Malaysia when he returned in January/February 2014 to pay for the debt, when I asked him the money he had given to his family in Malaysia in 2014 his evidence was vague and inconsistent. When I asked him if he had sent any money to Malaysia in the last year, if any at all; he appeared not to understand. I then asked whether in 2014 he had sent or given any money to his family; he responded he was too nervous and could not remember. He then said he asked friends to take the money. He said it was $8,000A. When I asked him if that was in one lot or a combination of a number of transfers; he said it was once. When I asked him when in 2014 he gave the money to his family; he said he could not remember. When I asked whether it was the beginning or end of 2014; he said he thinks the end of 2014, but he is too nervous and that he does not know what to say. Similarly, when I asked him about the money he had sent back in 2015 his answers were vague, he then said he sent back $7,000A to his mother and this was for the debt. When I raised with him that his evidence appears inconsistent with is statement, as to how much money was given to his family and when in 2014; he did not respond, even when I asked him whether he wanted to say anything. As the crux of his claim is that he fears return as he has not paid the debt back, the Tribunal expects he would be consistent as to how much he had paid in 2014 and when. It finds his vague and inconsistent evidence in this regard adds to the finding his brother does not have a debt, nor that he paid money for that debt in 2014. This adds to my finding the applicant is not a credible witness.
Similar to the reasoning above, in making this finding the Tribunal has considered the applicant’s claim that he is nervous and does not know what to say. While the Tribunal accepts the applicant may be nervous, it does not accept that being nervous is the reason why he could not describe or be consistent as to the moneys he had sent or given to his family in Malaysia. It does not accept his vague unresponsive and inconsistent answers are as a result of nerves. It expects that if true that the applicant fears serious harm and/or significant harm on return as he, on behalf of his brother, owes money to the people who practise usury, that he would be able to provide consistent evidence as to the money paid and when in 2014. The Tribunal therefore does not accept that this explains or excuses his inability to provide consistent evidence as to these matters at the hearing before me.
Credibility Summary
For all the above reasons, considered cumulatively the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making this finding the Tribunal accepts that some information has been consistent over time, such as that his brother has debts, which have not been paid back and he (the applicant) cannot return. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.

As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept that the applicant’s brother ever had gambling debts of [over $20,000] in 2008, or that the applicant gave [the money] to pay for these debts or that at the beginning of 2014 he received a call from his mother asking him to bring as much money as he could to Malaysia as [his brother] had again borrowed money from people who practised usury or that the debt collectors were hounding his brother or his mother and that they were threatening his mother. It follows it does not accept as true his claim his mother was scared the debt collectors would chop of his or his brother’s hands and feet, or that he asked his mother to contact the police but she advised the police had connections to these people who practised usury and they were corrupt as well. It follows it does not accept as true he returned home with USD $10,000 to pay for the debt in 2014 and he discovered [his brother] owed [over $100,000] in gambling debts or that [his brother] advised the debt collectors that the applicant would pay off the debt as he was working in Australia and his salary was high. It follows it does not accept as true that [his brother] advised the debt collectors to let him go and chase him (the applicant) for the money and while angry he agreed that he would pay the debt, but they should not lend any more money to [his brother] nor bully their mother. It follows it does not accept as true that on his return to Sydney he started to save the money for the debt and he thought he could pay it off but it became harder and harder.
As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept before the New Year in 2015 the debt collectors found [his brother] and beat him up and threatened him with a knife or that the debt collectors asked him to tell the applicant to pay off the debt as soon as possible, otherwise they would kill [the brother]. It follows it does not accept [his brother] was so scared he fled to [Country 1] or that the applicant has to continue working to pay the debt or the debt collector told his mother that he had to pay off the debt as soon as possible otherwise they would ruin him when he landed in Malaysia, or that his mother told him to regularly pay the debt as soon as possible, otherwise his own life and that of his family are in danger in Malaysia. The Tribunal rejects his claims in their entirety.
It therefore does not accept were he to return to Malaysia now or in the reasonably foreseeable future the applicant, his brother or his family will face any of the difficulties he claims for the reasons he claims at the hands of the debt collectors or the people practising usury. It does not accept the applicant, his brother or mother will be killed, threatened, ruined, physically or verbally harmed or have his hands and feet chopped off or owe money or face any difficulties in any manner whatsoever ever for the reasons he claims.
As a result the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Malaysia in the reasonably foreseeable future at the hands of debt collectors, people who practise usury and/or the police due to his brother’s debts, because his brother borrowed money or because the police are linked to the debt collectors and people who practise usury or because his family and brother will be targeted for the reasons he claims.
Similarly based on my findings above and on the information before me I am therefore not satisfied on the basis of the evidence before me that there is a real risk that he will suffer significant harm on his return to Malaysia at the hands of debt collectors, people who practise usury and/or the police due to his brother’s debts, because his brother borrowed money or because the police are linked to the debt collectors and people who practise usury or because his family and brother will be targeted for the reasons he claims.
Conclusions regarding the Refugees Convention
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Malaysia in the reasonably foreseeable future. As the Tribunal has rejected the applicant’s claims in their entirety, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.
For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
The Tribunal has also considered whether the applicant is eligible for complementary protection. The Tribunal has above rejected the credibility of the applicant’s claims in their entirety. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in subsection 36(2A).
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.
Gabrielle Cullen
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 3735

17 November 2015

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Immigration

Administrative Law

Statutory Interpretation

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