1512816 (Refugee)

1512816 (Refugee) [2015] AATA 3869 (9 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512816
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Paul Windsor
DATE:9 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 December 2015 at 10:47am
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 on 19 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] February 2015.
The applicant applied to the Tribunal for review of this decision [in] September 2015.
The applicant appeared before the Tribunal on 4 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims to be a citizen of Malaysia who was born in Ipoh, Perak state, Malaysia on [date]. According to his protection visa application he is ethnic Chinese, of the Buddhist religion, and speaks Cantonese. He departed Malaysia legally [in] September 2012 and arrived in [city], Australia on the same day.
Summary of Claims from the Protection visa application
The applicant’s claims from his protection visa application lodged [in] February 2015 (folios 13 to 18 of the departmental file [number]) can be summarised as follows:
·He worked as a [occupation] with his best friend [Mr A].
·A Malay work colleague named [Mr B], who was a Muslim, would tease us and say bad things about other religions.
·One day we said to him that he should look at his own religion which is famous world-wide for terrorism and forcefully converting people. Unbeknown to us he recorded this on his mobile.
·In June 2012 Islamic extremists came to the office and started beating us. The police were called but the extremists escaped. While the applicant was explaining to the police what had happened, Hadi came and played the recording. The police then warned us we could be put in prison for saying bad things about against the country’s dominant religion.
·We left and moved to [Town 1]. After one week they came to our house (when we were not there) and broke all our stuff. Our house mate asked us to leave the house fast as our life was at risk. We left and came to Australia in Sept 2012. If we return to Malaysia we will be harmed; [Mr B] and his extremist gangsters can kill us.
·The authorities cannot help us because they only help strong and Malay people.
·Relocation will not help as we have already tried relocating.
Evidence from the Hearing of 4 December 2015
At the hearing with the Tribunal on 4 December 2015, the applicant indicated that he was working as a [occupation] in a store in Ipoh, in Perak state, which he knew by the Chinese name [name], selling [goods]. He indicated that seven or eight people worked there and [Mr B], who was ethnic Malay, was one of these employees.
The applicant indicated that he had arguments with [Mr B] and that [Mr B] discriminated against him because of his race. When asked by the Tribunal when he had a big argument with [Mr B] the applicant replied that he could not remember, but that day the police came on site because [Mr B] threatened the applicant and discriminated against him on the basis of his race so he (the applicant) called the police in.
When asked by the Tribunal to explain what happened, the applicant indicated that sometimes the employees of the store where he worked would try to get customers from each other. On the day when the police were called, [Mr B] told the applicant that he ([Mr B]) is Malaysian, that this is his country but you (the applicant) are not Malaysian. The applicant commented that the situation almost ended up in a physical fight. Following that incident [Mr B] made threats to the applicant that if he sees him he will hit the applicant or will ask someone to take care of him. When the police came and heard what had happened they said it is something between the two of you. After that [Mr B] found someone else to make threats to him and his family so they had to move away.
When asked to explain in more detail what happened on the day the police were called, the applicant commented that it is because [Mr B] is in a relationship with the underworld figures. When pressed for details of what happened that day that led to police being called, the applicant responded that they were always trying to fight for business, both people from Chinese backgrounds and people from Malay backgrounds. The workplace was in chaos so we called the police. When there is an argument the Chinese help the Chinese and the Malay help the Malay. When pressed on what threats [Mr B] made, the applicant indicated that [Mr B] commented that whenever I see you again I will hit you and that he would call people from the underworld.
The Tribunal asked the applicant who called police. He indicated that it was his friend [Mr A]. He said he could not remember when this happened. When asked which year he said 2012, but when asked which month he said he couldn’t remember. When asked ‘about when in 2012’ he again replied that he could not remember. The Tribunal asked the applicant to tell the Tribunal exactly why [Mr A] called the police and exactly what was happening. The applicant replied that he was almost getting into a physical fight with [Mr B], the Malay. When asked if anyone else was involved the applicant replied ‘no’.
When asked by the Tribunal what the police did when they came to the store the applicant said they asked what had happened. The applicant indicated that he told the police it is about getting business and that he ([Mr B]) discriminated against me on my race and threatened me. The applicant commented that the police said it is not a big deal to which the applicant replied that he is under life threats. The applicant said the police officer did not respond to him and the applicant could tell that the police officer was obviously on the Malay side. The police also said it is something private between you two.
The Tribunal asked the applicant what it was that [Mr B] was threatening to do. The applicant replied that ‘they’ are really unified and every time they come in numbers, dozens of them. He said that [Mr B] threatened that whatever happens he will call in his gang and brothers to attack the applicant.
The Tribunal asked the applicant what happened after that. He said that he moved. When asked where he moved to, the applicant replied that he moved back to his own village, [Village 2]. He indicated that this village is in Perak state. He indicated that he stayed there in the house of his ancestors. When asked if this was his parent’s house he said ‘yes’. He said his parents were in Kuala Lumpur and indicated that he did not have anyone there with him and stayed there ‘just by myself’.
The Tribunal asked the applicant what happened after that. He replied that he was kind of helpless and came to Australia. When asked by the Tribunal why he felt helpless, he indicated that the ‘Malay’ found him in his own home so he had to go. When asked by the tribunal how the Malay found him he indicated that his workplace had his address because the birthplace is on the Malaysian Identity card.
The Tribunal asked the applicant what happened when the gang came. He replied that nothing happened because when they came he saw them before they came and he left for Kuala Lumpur. He stayed there with his mother (his parents were working in Kuala Lumpur) for between one and two months and then left for Australia.
When asked why he felt he had to leave for Australia, the applicant replied that he wanted to try a new environment and his mother told him that life in Australia will be better with more freedom.
The applicant indicated that a Malay friend has told him that Malays are still trying to find him and that [Mr B] wanted to kill him. The applicant commented that [Mr B] is upset all the time. The Tribunal asked the applicant what he thinks will happen to him if he returns to Malaysia. The applicant responded that he would look for ‘that Malay’ because he wants to have a discussion with him, but his mother has told him not to return. When asked why his mother had advised him not to return the applicant indicated that the Malays are not making any sense. He said that personally he would not like to leave Malaysia but there is no other way. When asked whether he could live in Kuala Lumpur with his parents away from [Mr B], the applicant commented that it does not make sense that he not return to his ancestors house as their graves are there and he always pays his respects. He indicated that he feels he cannot return as the Malays are still there and there are political issues in Malaysia and Malays and Chinese seem to be enemies of each other.
The applicant was asked why he delayed applying for protection for two and a half years after arriving in Australia. He commented that it was only after this time that he understood that he could seek protection in Australia. The Tribunal also asked him, noting the delegate’s decision indicates he was given the opportunity to attend an interview to discuss his application if he wished to do so, why he had not taken up that opportunity. The applicant indicated that he did not receive this advice.
After listening to his account of why he fears for his safety in Malaysia, the Tribunal put to the applicant that what he had told the Tribunal at the hearing was completely different to what he had written in his Protection visa application, and that this gives rise to concerns that his story may not be genuine. It was put to the applicant that he had made no mention at the hearing of having told [Mr B] that Islam is a religion that is ‘famous world wide for terrorism and force fully converting people’; that he had not said that [Mr B] had recorded this conversation or played it to police; that he had not indicated that Islamic extremists came to the office and started beating ‘us’ on the day police were called; that he had written that ‘we’ went to [Town 1] rather than [Village 2]; and that he had written that after a week ‘they’ came to our house when we were not there and broke our stuff and our housemate asked us to leave the house fast as ‘our life’ was at risk. The applicant replied that he does not know English and put his application together with help from Google. He said he was helped by his friend [Mr A] but he (the applicant) wrote the application in English himself with help from the internet.
Findings and Reasons
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
On the basis of the copy of the applicant’s Malaysian passport provided to the Department, the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as he claims it to be. The Tribunal accepts that Malaysia is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
The Tribunal has concluded that the key elements of the applicant’s account of what happened to him in Malaysia are not true. The Tribunal finds that the applicant was not involved in a religion based argument with an ethnic Malay co-worker named [Mr B]; that he was not threatened by this co-worker; that he was not threatened, attacked or beaten, and did not have property destroyed by Islamic extremists, brothers, the underworld, or gang-members supporting this co-worker; police were not called or involved in any religious dispute, and the applicant did not flee either to [Town 1], [Village 2], or Kuala Lumpur to avoid an ethnic Malay co-worker, Islamic extremists, brothers, the underworld, or gang-members supporting this co-worker. The Tribunal also does not accept that a Malay friend has told the applicant that Malays are still trying to find him and that [Mr B] wanted to kill him. The Tribunal reaches this conclusion for the following six reasons.
First, the applicant was not forthcoming in giving his story during the hearing. He provided brief, generalised answers and had to be asked repeatedly to provide details. He could not remember many relevant details of his story, such the approximate month during 2012 that the police allegedly came to his office. In general, the Tribunal found the applicant to be vague and evasive when giving evidence at the hearing.
Second, even though asked by the Tribunal repeatedly to describe exactly what happened between he and [Mr B] in the store, the applicant made no reference to [Mr B] having recorded a conversation where the applicant and his friend made comments critical of Islam, [Mr B] having played that recording to police, or police after listening to the recorded conversation, having warned the applicant that he could be put in prison for his bad words against the country’s dominant religion. Instead, at the hearing the applicant said that police commented to the effect that the dispute between him and [Mr B] is not a big deal, and is something private between the applicant and [Mr B].
Third, the applicant said at the hearing that the day the police were called there was an argument in the office between he and [Mr B] that almost became a physical fight. When asked if others were involved he said no-one else was involved. However, in his Protection visa application he said that police were called because extremists came to the office and ‘started beating us’.
Fourth, the applicant wrote in his application that ‘we moved to [Town 1]’ where after one week they came to our house and broke our stuff, resulting in our house mate asking us to leave. At the hearing, however, the applicant said he moved to his ancestor’s house in [Village 2], by himself, but nothing happened as he saw the gang before they came, and left for Kuala Lumpur. The applicant indicated that the store where he and [Mr B] worked was located in Ipoh. Google Maps indicates that [Town 1] is approximately [distance] kilometres north of Ipoh ([distance] minutes by car) while [Village 2] is approximately [distance] kilometres south of Ipoh ([distance] minutes by car).
Fifth, the applicant did not apply for a Protection visa shortly after arrival in Australia in September 2012. He delayed doing so for over two and a half years after he had arrived. The Tribunal considers it very likely that, if the applicant had genuine fears for his safety in Malaysia, he would have made enquires and found out that he could apply for a Protection visa well before February 2015.
Sixth, the applicant did not take the opportunity given to him by the department to attend an interview in relation to his Protection visa claims. The applicant said he did not receive this advice. However, the delegate’s decision makes clear that this advice is included in the same letter that asked the applicant to attend the departmental office to provide personal identifiers, and that he provided these identifiers. The Tribunal considers that if the applicant held genuine fears for his safety in Malaysia, he would have accepted an offer from the department to attend an interview to present his case in person.
The applicant was asked at the commencement of the hearing whether he was sure that everything he had put in his Protection visa application is true and correct as far as he knows. He replied ‘yes’. He was then asked whether there are any mistakes that he wishes to point out to the Tribunal. He replied ‘no’. When later asked by the Tribunal to comment on the inconsistencies between his written account and his evidence at the hearing, the applicant responded that they were due to his poor English and use of the internet and Google to help him put together his application. The Tribunal finds that the accounts are fundamentally different in substance and does not accept that differences of the nature outlined above are the result of poor English.

Having determined that the particulars of the applicant’s account as detailed above are false, the Tribunal considered the applicant’s generalised claims that Malays and Chinese are the enemies of each other in Malaysia. In this regard, the Tribunal has given weight to country advice from the Australian Department of Foreign Affairs and Trade (DFAT)[1] that indicates:
[1] Australian Department of Foreign Affairs and Trade, DFAT Country Report, Malaysia, 3 December 2014.
·While the Malaysian Constitution accords a ‘special position’ for bumiputera, permitting affirmative action policies that favour ethnic Malays, it forbids discrimination against citizens on the basis of religion and race;
- Ethnic Chinese comprise 24.6 per cent of the Malaysian population. There are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia;
- While they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service, DFAT assesses that ethnic Chinese in Malaysia generally do not experience discrimination or violence on a day-to-day basis;
- Ethnic Chinese in Malaysia have traditionally dominated the private economy;
·Buddhists represent 19.8 per cent of the total population of Malaysia and there are many non-Muslim places of worship in Malaysia; and
·Overall, DFAT assesses that Buddhists are normally able to practice their religion without interference and do not face discrimination on a day-to-day basis in Malaysia.
On the basis of this country information, the Tribunal concludes that the applicant does not face a real chance of persecution amounting to serious harm from Muslims, extremists, gangs or the underworld in Malaysia due to his Chinese ethnicity, his Buddhist religion or for any other reason.
In relation to the applicant’s claim that the authorities in Malaysia cannot help us because they only help strong and Malay people, as the Tribunal has found that there is not a real chance that the applicant would suffer persecution in Malaysia, the tribunal finds that the applicant would not require the protection of the authorities in Malaysia.
Does the applicant have a well-founded fear of persecution if he returned to Malaysia?
Having considered the applicant’s claims individually and cumulatively, 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).
Complementary protection
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). Having regard to the findings of fact set out above, 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.
Paul Windsor
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 3869

9 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction