1512579 (Refugee)

1512579 (Refugee) [2016] AATA 3677 (23 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512579
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rachel Westaway
DATE:23 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 March 2016 at 6:55pm
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] October 2014. The delegate refused to grant the visa on the basis that his fear of harm is not well founded.
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 issue in this case is whether the applicant, as stated is a Yi Guan Dao member and whether his claims of persecution because of his beliefs and membership to this group are well founded. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant is an infant, born in [Australia]. His parents are not included on his application. His parents arrived in Australia on a [temporary visa] [in] September 2012.
The applicant’s claims in his protection application stated that he came to Australia to follow his mother and that his claims are the same as his mother’s.
The applicant made his visa application [in] July 2014. In his application for review to the Administrative Appeals Tribunal, the applicant supplied a copy of his refusal letter from the Department.
The Tribunal notes the decision from the delegate that the applicant’s father’s visa application was refused at primary application stage and later by the Refugee Review Tribunal. The applicant’s father stated in the interview with the Department delegate pertaining to his infant son that nothing has changed in regards to their family’s claims since his own protection visa application was fully determined. The applicant’s mother was a secondary applicant on the applicant’s father’s application. This decision was affirmed on 9 August 2013.
The applicant claims in his written application that his parents believe in Yi Guan Dao. He claims that this is not recognised in Malaysia and that his parents’ house was broken into and the local government caused trouble and destruction. He claims that no religion is recognised in Malaysia other than Islam.
He claims his parents were persecuted in Malaysia. He claims he will face the same fate as his parents and that he cannot receive help because he is not Muslim.
He claimed he will have learning difficulties and loss of freedom in life. He claims that if his parents are arrested for practicing their religion, he will not have a happy childhood and will be intimidated.
He claims he cannot seek help because those he would seek help from are mainly Muslims. He states that because he is Chinese he is discriminated against.
The applicant provided a copy of the delegate’s decision record to the Tribunal.
The Tribunal has considered the information before it contained both within the Department file and the Tribunal file and the interview conducted with the applicant’s father by the delegate.
The Tribunal conducted a hearing and the applicant’s father gave evidence on behalf of the applicant. The applicant’s mother was also in attendance but chose not to give evidence.
The applicant is [age] and was born in Australia. He has never returned to Malaysia. The applicant’s parents have been living in [Australia] for 3 1/2 years.
The father was [occupation] with [employer], a [service] company in Malaysia and the mother was [occupation].
The applicant’s father (the witness) claimed he has travelled to [several named countries].
He said he came to Australia because he had a clash with people. His wife was then his girlfriend and she came too. He claims that the clash was over worshiping Buddha.
The witness stated he was from [a city] in Malaysia and that he fears sending his son to Malaysia because he is scared and doesn’t want his son to suffer how he has suffered.
He stated that they (Muslims in Malaysia) are against our religion and they have destroyed family temples.
He claims he is a follower of Yi Guan Dao. He claims he has been a follower since high school. A friend showed him around and he started going to the temple.
The Tribunal asked the applicant’s father to explain the principles of Yi Guan Dao. The applicant state that the principles of Yi Guan Dao is to be kind, do good and then you can make your way to heaven. He stated that it is similar to Buddhism and you worship the same god as other religions.
The applicant’s father stated it is closer to Buddhism but with a holy mother. The witness stated that people eat vegetables for three days and are introduced to the religion and he confirmed that his son, the applicant has been initiated into it. The witness provided some evidence which included pictures of the applicant with other children praying. It showed adults assisting the children. The applicant also included a membership card which was not translated.
The witness said he believes his son will not be welcome and will be marginalised in Malaysia.
The Tribunal asked the witness what his own experience has been. He said they were called pigs and their places of worship have been destroyed.
The applicant’s father provided two examples of events in which he claims he feared harm and discrimination. He had erected an alter with statues of his God outside. In 2009 Muslims came and knocked over the alter at his home and demanded he stopped worshiping outdoors. He stated that it was Islamic men in Malaysia who did this. In a second incident in the same year, a police officer and a local council representative came and said they will issue him with an infringement notice if he does not remove the statues, alter and clean up his yard. He claims he moved to KL and attended the home of other followers to pray. He was told to be careful and not to attract attention. He did not stay in KL long. He confirmed he continues to worship in Australia at a [home] and there are statues erected indoors. The applicant confirmed he continues to practice his religion in Australia and he fears that if he is to return to Malaysia he will not be able to.
The applicant’s mother was introduced last year to Yi Guan Dao. She was not initiated but is willing and wanting to join them. Pictures of the applicant’s mother were included in the evidence provided to the Tribunal.
The witness confirmed the applicant’s [one set of] grandparents are alive; the [other] grandmother is still alive. The witness stated that the grandparents are not members. The witness stated that he intends bring his son up to teach him good things from Yi Guan Dao.
The Tribunal asked the applicant why he thinks he will be targeted. He said he has friends who are followers were forced to close a small temple and were issued with infringement notices. It was claimed to be an illegal gathering.
The Tribunal asked the witness why he believes his infant son will be targeted given he is so young. The witness stated that Islamic Malaysians don’t like them and do not care how old they are.
He stated that the Islamic people in Malaysia will target them. He stated that there are conservative people and he was discriminated against and in KL he was forced to close a temple. He stated that they came to his house and forced him to stop worshiping.
The Tribunal put the following country information to the witness. DFAT Country Report, Malaysia, 3 December 2014 states that Yi Guan Dao was founded in China in 1920 and it claims to take elements of five religions; Buddhism, Taoism, Confucianism, Islam and Christianity. There are a small number of Yi Guan Dao devotees in Malaysia and members often operate in secret, locate their temples in ordinary homes and restrict participation to initiated members only. The report states that there are low levels of societal discrimination or violence which have occasionally been directed at members by Chinese Buddhists or Malays Muslims. During the 1980s and 1990s, devotees faced occasional adverse press reports from local Chinese media. There are a small number of reports of Chinese Buddhists entering homes and damaging religious relics. The police are known to respond to requests for assistance from members in such instances. DFAT assess that Yi Guan Dao members are commonly able to practice their faith without interference and are not living in fear of discrimination or violence on a day to day basis. The DFAT report also confirmed that the Royal Malaysian Police are generally a professional and effective police force. Furthermore, the Malaysian Constitution forbids discrimination against citizens on the basis of gender, religion, and race. The applicant had no response. He claims he did not know this but continues to fear for his son.
The witness was asked to explain why he thinks his son will be targeted. The witness stated that because the applicant’s father is a follower he will be targeted. The witness provided the Tribunal with two examples of events which occurred in 2009 which he believes indicate his son will be harmed if he returns to Malaysia. The witness stated that they came to his house and destroyed everything he used to worship. The Tribunal asked the witness if he meant that people entered his house and destroyed it and he said no, it was his shrines located outside.
The Tribunal asked the witness to provide further details on any other event that made him concerned that his son might be targeted. The applicant claimed that his car and windscreen were damaged twice but he doesn’t know who did that or why and is not certain if it was associated with his religion.
The witness gave the Tribunal a submission dated 22 February 2016. A membership card and pictures of prayer sessions were provided. The submission stated that the applicant attends the temple every week in Australia where he learns and practices Yi Guan Dao. He claims that there is rampant discrimination in Malaysia with government departments and in general. He claims this is based on ethnic, religious and ideological grounds. The applicant stated that even within the healthcare system they are made to feel embarrassed or awkward.
The submission stated that the witness needs to give his son a “fairly cushy upbringing” to assist in his development. They do not want their child to feel embarrassed or awkward in his growth process and he wants to protect his child’s right to freedom of religion.
The submission also included media articles dated 18 and 19 March 2015 from the Malaysian Insider. The article discussed proposed amendments to the Kelantan’s Shariah Criminal Code Enactment II 1993 between the English and Bahasa version. There was confusion over the punishment for apostasy. The article discussed the debate about the proposed amendments pertaining to people who intentionally perform any act or reveal any words that affected or are contrary to the beliefs of Islam.
An additional article was provided on Religious Conversion and Sharia law from the Council on Foreign relations dated 8 June 2007.
Sharia law deals with exclusively Islamic laws and has jurisdiction upon every Muslim in Malaysia. The Sharia Court system is one of the two separate systems of courts which exist in the Malaysian legal system. It has jurisdiction over issues relating to apostasy, the renunciation and criticism of, or opposition to Islam.
FINDINGS AND REASONS
The applicant claims to be a citizen of Malaysia. A copy of his passport was provided. The Tribunal finds that the applicant is a citizen of Malaysia and that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment. There is no evidence before me to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
The Tribunal accepts that the applicant’s parents are Yi Guan Dao practitioners and that they attend regular weekly meetings in Australia and worship. Given the applicant’s age, the Tribunal accepts that the applicant attends with his parents and is being brought up as a follower of Yi Guan Dao. The Tribunal has considered the witness’s knowledge demonstrated in his oral evidence of the religion and the photos presented to the Tribunal in making this finding.
Furthermore, the Tribunal accepts that should the applicant return to Malaysia, he and his parents will continue to practice as Yi Guan Dao followers.
The Tribunal accepts that the applicant’s background is ethnic Chinese and the Tribunal is satisfied that the Refugee’s convention grounds for the harm feared by the applicant is religion as required by subsection 91R(1)(a) of the Migration Act.
The Tribunal has had regard to the harm feared by the applicant, namely that he would not be able to practice his religion freely, if his parents are arrested he will not have a happy childhood and could develop learning disabilities and that he will be discriminated against generally and he named examples of the health system and education. The Tribunal has also had regard to the applicant’s written submission provided at hearing which included media articles detailing severe forms of punishment for apostasy in Malaysia. The Tribunal has given limited weight to these articles as the Sharia Law has jurisdiction over Muslims and the applicant is not a Muslim nor was he ever a Muslim. However, in regards to the harm the applicant claims he fears as detailed in his application and also those provided at hearing, the Tribunal accepts that they constitute serious harm which is systematic and discriminatory in its nature as required under subsection 91R(1) of the Migration Act.
Independent country information before the Tribunal confirms that low levels of societal discrimination or violence have been directed at Yi Guan Dao followers by Chinese Buddhists or Malays Muslims and that there are a small number of reports of Chinese Buddhists entering homes and damaging religious relics. Given the consistent, detailed oral evidence taken from the witness and the country information, the Tribunal accepts that the applicant’s family experienced difficulties when publicly worshiping and practicing Yi Guan Dao in Malaysia. The Tribunal accepts that the witness was asked to dismantle and remove a shrine he had erected in the front yard of his family home. The Tribunal also accepts that Muslims came and knocked over the alter and demanded he stopped worshiping outdoors and that he was threatened and told he would be issued with an infringement notice if he does not remove the statues, alter and clean up his yard. The Tribunal also accepts that it is plausible that he and his family and fellow worshipers were called derogatory names.
For the reasons stated above, it is plausible that the witness had friends in Malaysia who are followers and that were forced to close a small temple and were issued with infringement notices. The Tribunal accepts these claims.
However, the Tribunal notes that the examples provided by the witness which were directed at him and which support the applicant’s claims of fearing serious harm amount to two main incidents. Namely the destruction of the witnesses shrine in his garden and the attendance of a police man and a local government person ordering the applicant to remove the shrine, clean up his garden and the threat of an infringement notice. There was also the claim that the applicant was called derogatory names. The Tribunal accepts that the dismantling of the shrines meant that the applicant was unable to worship, however the applicant confirmed he continued to worship at his friends place in KL. The Tribunal finds that these acts do not equate to serious or significant harm and although the applicant was prevented from worshiping because his shrine was dismantled, he continued to worship elsewhere.
The Tribunal has had regard to the evidence taken from the witness that Islamic people in Malaysia will target his son because he is a Yi Guan Dao follower and ethnic Chinese and hat his father has a profile as a Yi Guan Dao follower. He stated that there are conservative people and he was discriminated against in KL and he fears his son will be discriminated against too. The applicant claims he will have learning difficulties and loss of freedom in life. He claims that if his parents are arrested for practicing their religion, he will not have a happy childhood and will be intimidated. The witness claimed that his son will be targeted in spite of his age as Islamic Malaysians do not care how old the person is. He claims that there is rampant discrimination in Malaysia with government departments and in general. He claims this is based on ethnic, religious and ideological grounds. The applicant stated that even within the healthcare system they are made to feel embarrassed or awkward. They do not want their child to feel embarrassed or awkward in his growth process and he wants to protect his child’s right to freedom of religion.

DFAT Country report, Malaysia, 3 December 2014 confirms that Malaysian Chinese constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against ethnic Chinese. They make up a high percentage of the professional and educated class and dominate business and commerce sectors. They generally have no problems accessing public, primary or high school education. It states that DFAT assesses that ethnic Chinese generally do not experience discrimination or violence on a day to day basis. However, low levels of discrimination may be faced when attempting to gain entry into the state tertiary system or the civil service. Given the independent country information before the Tribunal and the lack of any specific examples presented by the applicant, other than the witness saying that “his son’s case is hard to prove but he simply doesn’t want to wait until something happens to him”. The Tribunal does not accept that the applicant will be discriminated against because of his father’s religion, his Chinese ethnicity or his own membership of Yi Guan Dao if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal does not accept that the applicant’s parents will be arrested because of their religious beliefs or ethnicity. The independent country information before the Tribunal does not support these claims and there has been no evidence provided to the Tribunal by the applicant.
The Tribunal notes that the witness claimed that his car and windscreen were damaged twice but he doesn’t know who did that or why and is not certain if it was associated with his religion. The witness provided this information when asked if he had experienced any further acts of violence or discrimination other than the two examples he has provide. Given the applicant was not convinced that these acts were anything other than random acts of violence, the Tribunal does not accept that they were associated with the applicant’s religion or ethnicity.
The applicant claimed that he will not be able to worship in Malaysia as he does in Australia. Country Information does not support this claim and the Tribunal does not accept that the applicant cannot continue to practice his religion in the same way he has in Australia.
The Tribunal does not accept that the applicant cannot receive help because he is not Muslim. The Tribunal has referred to the country information which specifically forbids discrimination against citizens on the basis of gender, religion and race. Law enforcement agencies operate at a federal and state level and the Royal Malaysian Police are responsible for law enforcement nationwide. It is considered a professional and effective police force but responses are dependent on levels of training. The police are known to respond to requests for assistance from Yi Guan Dao members if required. DFAT assess that Yi Guan Dao members are commonly able to practice their faith without interference and are not living in fear of discrimination or violence on a day to day basis. Country information confirms that between 80-85 per cent are ethnic Malay but the police have commenced a campaign to increase the number of ethnic Chinese in the RMP. There is no evidence before the Tribunal that the applicant would not receive assistance or protection if the need arose.
The Tribunal has considered the evidence taken at hearing, submissions provided by the applicant and independent country information as detailed above. The Tribunal is not satisfied that the applicant has a real chance of being persecuted for Refugee Convention reasons and finds that the applicant’s fears are subjective only.
The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in Malaysia for the convention reason of his religion or his race being Chinese now or in the reasonably foreseeable future. The Tribunal therefore finds that the applicant does not meet the requirements of s.36(2)(a).
The Tribunal sought to confirm with the witness whether he has experienced any other issues and outside of identifying damage to his car which could not be attributed to anything specific, he had no further claims on behalf of his son. In considering the claims and evidence before it the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. Therefore the applicant does not meet the requirements of s.36(2)(aa).
CONCLUDING PARAGRAPHS
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.
Rachel Westaway
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 3677

23 March 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

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