1512631 (Refugee)

1512631 (Refugee) [2016] AATA 3678 (4 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512631
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Stuart Webb
DATE:4 April 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 April 2016 at 9:16am
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 applicant provided a copy of the delegate’s decision to the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided the following statement with the application.
My name is [applicant name] and I'm [age] years old. I'm a casual worker and I worked as a co-worker in a local [business]. I'm a very friendly person and loves to learn new things and one of my main hobby is learning about others culture and their beliefs since Malaysia is a multi-raced country. I got a good Chinese Christian friend named [Mr A]. He always invite me to come to his church and learn about the Christian culture and the religion since he knows about my hobby and always support me, so on February 2015 I went to his church and see how their religion prayers are held but it was my unlucky day, a Malay Muslim guy saws me entering the church. I thought it wouldn't be a big issue because I didn't go there to pray but to see how Christians worships and right around l hour, in the middle of the worship the church was surrounded by [Organisation 1] which is [an] Islamic organisation member. They stopped the prayers, walked towards me and asked me who brought me to the church. I explained to them the whole situation and my interest about learning other race culture and beliefs and I also told them that I came here by my own will with my friend [Mr A]. After they hear my statement the [Organisation 1] member me and [Mr A] to follow them to their nearby office and give a detail explanation at first they was angry n don't want release us, they say that [Mr A] want to make me and my family change my religion. I call my dad to came and say to them that [Mr A] just show me how that culture of Christian only because my dad know about my friendship with [Mr A] and his family. After my dad come they agree to release us. Couple day latter all the people in my village was known about this and they really pisses and they thread my family and say bad word to my family. They also wanted to beat me and my sibling if they found us around not just in my village but also at other state in Malaysia. My dad scare about my safety and say why not I go to other place and find new life. [Mr A] also agree my father opinion because his family also think this is the best solution for me. I'm remember that before this I heard about Australia protection visa and my father suggest me to come to Australia and try to apply the protection visa. I seek for a protection visa here because I had come here before and know that Australia government will help me to get through in this case.
The delegate was prepared to accept that the applicant attended a Christian church service, and that she may have been questioned by members of [Organisation 1]. However the delegate did not accept that the applicant faced any ongoing issues arising from this experience, she did not claim she was going to convert and identified herself as Muslim in the application, including wearing a traditional Islamic head covering in her application photo.
The delegate noted that the applicant remained in her home region for one month after this church incident and was not harmed. The delegate did not consider that the applicant had a fear of harm in her home region.
The delegate also noted that the applicant delayed lodging her protection visa application until almost 3 months after her arrival, and just before her visa was to expire.
Findings and reasons
Country of nationality
The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is her receiving country for the purposes of the refugee and complementary protection assessments.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
The applicant lodged her application in Australia just over 3 months after her arrival in Australia. This is not ordinarily a significant delay in lodging an application of this nature. However, in these circumstances, the delay in lodging her visa is a concern to the Tribunal. The Tribunal discussed the statement of the applicant that her father was scared for her safety, and suggested she go elsewhere for a new life, that she had heard about Australian protection visas, and that her father had suggested that she ‘come to Australia and try to apply the protection visa’. The Tribunal noted that the applicant arrived in Australia [in] March 2015 and lodged her protection visa application [in] June 2015. This was a significant delay in the context of her evidence that she came to Australia with the knowledge of and interest in applying for protection.
The applicant stated that she did know about the visa, but that she was not sure she wanted to apply for it or not. Her sister arrived in early June 2015 and told her to lodge her application. The applicant’s sister has also lodged her own protection visa application, the applicant stating it had been refused by the Department and she had appealed to the AAT as well. The applicant stated that her sister’s visa application was based on the applicant’s circumstances.
The Tribunal has concerns regarding the delay, which are not explained by the applicant. The applicant stated that she knew about the protection system in Australia, was advised to come to Australia to apply for such a visa, but when she arrived she was ambivalent as to whether she would apply, and would appear to have been convinced to lodge the application by he sister, who also relied on the applicant’s circumstances for her own, so far unsuccessful application. This equivocal nature of the applicant’s application, as described, causes the Tribunal to have concerns as to the nature of the applicant’s fear of harm in Malaysia.
The Tribunal also has significant concerns regarding the genuineness of a document provided by the applicant to the Tribunal at the hearing. The applicant provided an untranslated police report to the Tribunal[1]. This report, dated [in] March 2016, was made by her father in her [home village], and stated that he wished to report 3 incidents; paint being thrown at his car in February 2015, the death of fish in a pond in October 2015, and that some people had been in his house in December 2015, though nothing was taken. The applicant provided undated photos of an old van with [paint] splashed across it to the Tribunal. The applicant claimed the paint was thrown at the car because of her activities in February 2015.[2]
[1] AAT Folio 28
[2] AAT Folios 29-30
The Tribunal questioned why the applicant’s father would wait an entire year before going to the police to make a report. The Tribunal expressed its concern as to the date of the report, [in] March 2016, [shortly] prior to the Tribunal hearing, as the report seemed to be created for the purpose of the applicant’s protection visa hearing, and not for the purpose of making a complaint at the time of any one of the incidents, given the delay. The applicant stated that her father had not wanted to make the report, however was convinced by the applicant that it would assist in providing evidence in support of the applicant’s claims.
The Tribunal has significant concern regarding this explanation. The applicant had not raised any of these incidents in her application, the [paint] on her father’s car being the most likely of the three to be included as it happened while she was in Malaysia and prior to her lodging her protection application with her statement. The statement to police has been created for the purpose of supporting the applicant’s claims, and not to seek redress or punish the perpetrators of these alleged incidents. The Tribunal considers that the information regarding the throwing of [paint], which could have been included in the applicant’s statement, is an odd omission, in the circumstances. That it is referred to by the applicant’s father in a statement to police a year after it was purported to occur, causes the Tribunal to have significant concern with the genuineness of the statement and the information contained therein. The Tribunal considers that this statement to the police has been made with the specific purpose of establishing the claims of the applicant at the hearing, and is not true.
The Tribunal has significant concerns regarding the veracity of the incidents that are mentioned by the applicant’s father in the statement, including the paint on the van being thrown in February 2015, fish being killed in October 2015 and a house invasion in December 2015. While the Tribunal accepts that paint was thrown at the car, the Tribunal has serious concerns as to the timing of this event, given the images are undated and were not mentioned in the applicant’s initial claims. The Tribunal considers that if the paint throwing on the van had occurred at the time the applicant claimed it did, when she was still in Malaysia, the applicant would have raised this in her original statement, which mentioned events after her church visit. She did not mention this incident. The Tribunal considers that the paint was thrown on the car, but it was not in relation to the applicant’s circumstances in February 2015. The Tribunal does not accept that the paint throwing is related to the applicant, or a reason for the applicant to fear harm on return to Malaysia.
Further, the Tribunal does not accept that the subsequent two incidents, the death of fish in a pond, or a subsequent home invasion by unknown persons occurred. The Tribunal considers that these events, which supposedly occurred in October and December 2015 respectively, and were never mentioned until a police report of March 2016, have been contrived to seek to embellish the applicant’s claims. The Tribunal considers that had these events occurred, the applicant’s father would have raised them with the police at the time these incidents occurred, and not so long after, with the sole purpose of seeking to provide evidence to his daughter’s protection claim. The Tribunal considers that these incidents have been contrived, and did not occur.
Claims
The applicant professes to be a Muslim woman, dresses in a manner consistent with Muslim values, including wearing a head scarf. She is an ethnic Malay by birth, which by Malaysian law makes her a Muslim. She stated that she has no intention of leaving Islam. The Tribunal accepts she is a Muslim. She stated that she is an inquisitive person, open to other people’s ideas. She stated that she had once attended a Hindu temple, and in February 2015 was invited by a work colleague to attend his local Christian. She was curious to see what happened in the service, but had no intention of converting away from Islam. The applicant’s claims for protection revolve around her attendance at this local church in her village on this one occasion.
The applicant states she was seen entering the church by local Muslim villagers. She stated that during the service members of the religious police arrived and asked her to leave with them. Her Christian friend also came with her. She went to the local office. The applicant was asked why she had gone to the church, and whether she was trying to leave Islam. The applicant stated she had no intention of leaving Islam. The applicant stated that her father came and the religious police let her go. She first stated that there was no punishment. The applicant stated then that she had learnt two days before the hearing that her father had paid 50 Ringgits[3] for her friend [Mr A] and herself. She had no further problems with the religious police.
[3] AUD$16.00
The Tribunal expressed some surprise regarding the claim that the applicant’s friend [Mr A] was caught up with the religious police or was the subject of any fine. As a Chinese Christian he is not answerable to the religious police, they only have authority over Muslims. They have no power to hold or fine him. The Tribunal does not accept that any fine was issued to [Mr A] or any payment required to be made on his behalf because of his involvement in bringing the applicant to the church.
The applicant stated that the village made a bit of a ‘hoohaa about this thing’. Some people had some rough words with her, saying Muslims who do this cannot go to heaven. She was told not to visit the church again. The applicant stated that she stopped her work about a week later. She has not seen [Mr A] her friend again. She stated that someone spoke to her brother, who lives in [City 1] about the incident, and also her sister in [another town] had had difficulties because of this incident. The applicant stated that the village was cross about her attending the church.
Having considered the applicant’s evidence, as provided in her written submission and to the Tribunal directly, the Tribunal accepts that the applicant did attend a church and have some difficulties because of this activity. The Tribunal accepts she was spoken to by the religious police and that a minor fine was issued and paid for her activity. The applicant has not received any other infringement from the religious police for her activities. This small fine, 50 Ringgits, is a penalty imposed for her breach of Islamic religious laws, which the applicant is subject to. The applicant’s father chose to pay the fine rather than contest it. The Tribunal does not accept that the issuance of and payment of this minor fine constitutes serious or significant harm, so defined in the Act at s91R(2) and 36(2A). The Tribunal further notes that the religious police had no further interest in the applicant since that one occasion, releasing her with no further follow up. The Tribunal considers that the applicant is not a person of interest to the religious authorities, and does not face a real chance of serious harm or a real risk of significant harm from them because of her attendance at the church.

The Tribunal has considered the attitude of the village community as a whole. The Tribunal accepts that for a brief period the incident would have been talked about and been of general interest. The Tribunal accepts that the applicant may have been spoken to rudely by some people in the immediate aftermath of the event. However the Tribunal does not accept that the applicant or her family have faced threats of harm because of this event for an extended period, or that the applicant has a real chance of serious harm, now and in the reasonably foreseeable future, or a real risk of significant harm on return to Malaysia, because of this incident.
The Tribunal notes that the applicant’s village has a mixed racial background, with Muslims and Christians living and practicing their respective religions. The applicant also noted that there were Hindus living in the vicinity as well. The applicant has not claimed that there was any antipathy or violence between the different religious groups. While the applicant may have caused some consternation because of her once observed openness to another religion, the Tribunal does not consider that this would lead to the threats and violence that the applicant has claimed occurred to her and her family, or would have led her father to send her to Australia to get protection, an action that the applicant did not take up for some time after her arrival despite it being her stated reason for coming to Australia.
The Tribunal does not accept that the presence of the applicant at a church on one occasion, or being spoken to and fined by the religious police on one occasion, would lead to ongoing threats and violent action against the applicant and her family over an extended period. The Tribunal does not accept that the presence of the applicant at the church would be viewed over a period of time as a criticism of Islam, or of any lack of faith in the applicant. The Tribunal considers that the applicant’s attendance at the church would have been a short lived matter in the community, that may have led to some rude words from some young locals, but was limited in both threat and extent. The Tribunal considers that the issue would have been limited in the community generally. As the applicant has stated, she has no intention of converting, and has continued to meet the tenets of her faith, including her appearance, in Australia as she has done previously in Malaysia.
The Tribunal considers the claim that her local community has continued to cause difficulties for the applicant’s family, including those not residing in the vicinity, to be implausible. The Tribunal does not accept that the applicant’s family have experienced ongoing difficulties, including paint throwing, pond poisoning, home invasions, issues for her sister’s business in [her town] or comments made to her brother in [City 1]. The Tribunal considers that these claims have been contrived to embellish the applicant’s overall claim. As discussed above, the Tribunal does not accept that the paint throwing is related to the applicant’s religious issue or causes the applicant to race a real chance of serious harm or a real risk of significant harm.
The Tribunal finds that the applicant does not face a real chance of serious harm for her attendance at a church, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.
Further, having considered the evidence as discussed above, the Tribunal finds that the applicant does not face a real risk of significant harm for this reason on return to Malaysia.
The Tribunal has also considered the applicant’s ‘hobby’ of learning about other people’s culture and beliefs, which led to her attending Hindu and Christian places of worship. The applicant stated that this was an intellectual interest, and not related to any interest in leaving her own Islamic religion. The applicant stated that one of the reasons she liked Australia was that people do not make judgements, if she wanted to know about Christianity she could, she could talk about religion generally. She stated that this perspective was difficult in the Malay community.
The Tribunal has considered the applicant’s claims as to her openness to different ideas and the relative conservatism of her local community. The Tribunal notes Muslims have a prioritised position within Malaysia. The most recent DFAT country report on Malaysia states:
2.22 The Malaysian Constitution forbids discrimination against citizens on the basis of gender, religion, and race, however it accords a “special position” for bumiputera, permitting affirmative action policies that favour ethnic Malays[4].
[4] DFAT Country Report Malaysia, December 2014
The Tribunal does note that for ethnic Malays there is no freedom of religion, they are automatically Muslim by birth, and conversion to other religions is not permitted, the religious courts that regulate this have only permitted people to convert away from Islam in very limited circumstances, and none of these were born Muslim[5]. The Tribunal notes that the applicant is not seeking to convert from Islam.
[5] 3.27 Only 168 of over 800 Muslims who attempted to convert between 2000 and 2010 were given permission to do so. In these cases, the sharia courts determined that all 168 applicants had not been Muslim to begin with, thereby avoiding a legal precedent supporting conversion from Islam. DFAT Country Report Malaysia, December 2014
The applicant stated that Islam is conservative in Malaysia. The Tribunal noted at the hearing that there are certain political parties that support a perspective of Islam that is conservative, the Pan-Malaysia Islamic Party (PAS) has pushed for the introduction of ‘hudud’ in Malaysia, a hardline interpretation of the ancient Islamic penal code that prescribes corporal and capital punishment[6]. The Hudud laws have not been implemented in states or nationally, however there are some states that have strong Syariah (Islamic) Laws relating to how a Muslim can behave. The applicant’s home [village] is a small town in Negeri Sembilan State, a predominately Muslim agricultural area not far south of Kuala Lumpur.
[6] DFAT Country Report Malaysia 3.19
While the Tribunal accepts that there are elements of Muslim conservatism in Malaysia, the Tribunal noted at the hearing that there is also moderate Islamic voices in the community which provide a different perspective. The Tribunal discussed country information that demonstrated that there were alternatives, including the “Group of 25” or ‘G25’, a prominent group of retired civil servants and influential leaders, who had published an open letter on 8 December 2014 asking for a rational dialogue on the position of Islam and Islamic law in a constitutional democracy. In their open letter, they had asked Prime Minister Najib Razak to address religious and racial tension and exercise leadership in guiding Malaysia back to moderation. The letter decried the "lack of clarity and understanding" on the place of Islam within Malaysia's constitutional democracy, as well as a "serious breakdown of federal-state division of powers, both in the areas of civil and criminal jurisdictions[7]".
[7]
The Tribunal has considered the circumstances of the applicant and her interest in other belief systems, which could be described as having moderate and tolerant views of different beliefs. While the Tribunal considers that conservative Islam has influence in Malaysia, the Tribunal does not consider that this conservatism leads to a conclusion that the applicant will be harmed because of her more moderate perspectives and interests. As discussed, the applicant is not seeking to convert, but to know more about different things. The Tribunal considers that such interests do not lead to a conclusion that she will be harmed for having these interests, and the Tribunal considers on the available information that the applicant would have the opportunity to pursue these interests in Malaysia on return. The Tribunal considers that the prospect of the applicant being harmed because of moderate and tolerant perspectives of Islam and other belief systems is remote, and not one that could be described as a real chance or real risk of occurring.
Having considered this aspect of the applicant’s beliefs and mindset, the Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm, for this reason.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Stuart Webb
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2016] AATA 3678

4 April 2016

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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