1512819 (Refugee)

1512819 (Refugee) [2015] AATA 3925 (11 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512819
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Paul Windsor
DATE:11 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 December 2015 at 4:31pm
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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas [in] March 2015.
The applicants applied to the Tribunal for review of this decision on 18 September 2015.
The applicants appeared before the Tribunal on 4 and 9 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants claim to be citizens of Malaysia. [Applicant 1] claims to have been born in [Malaysia] on [date]. According to the Protection visa application he is from the Malaysia ethnic group, of the Buddhist religion, and speaks English, Bahasa Melayu and Chinese. He departed Malaysia legally [in] December 2014 and arrived in Australia [in] December 2014. [Applicant 2] is the wife of applicant 1 and claims to have been born in [Malaysia] on [date]. According to the Protection visa application she is from the Malaysia ethnic group, of the Buddhist religion, and speaks English, Bahasa Malay and Chinese. She departed Malaysia legally [in] December 2014 and arrived in Australia [in] December 2014. Applicant 2 applied for a Protection visa as a member of the family unit who does not have their own claims for protection but is included in the principal applicant’s application. Although the applicants indicated in the Protection visa application that their ethnic group is ‘Malaysia’ it is clear from their names and the request for a Mandarin interpreter at the Hearing that while they are Malaysian nationals both applicants are of ethnic Chinese descent.
Summary of Claims from the Protection visa application
Applicant 1’s claims from his protection visa application lodged [in] March 2015 (folios 18 to 21 of the departmental file [number]) can be summarised as follows:
·They left Malaysia because they were being forced to ‘join Islam religion’.
·The Muslim people came to his house, threatened him and his family and beat him and hurt his family.
·He fears that if he returns to Malaysia, the ‘Muslim Haji’ will force he and his family to ‘join Muslim’ and ‘they also threaten’ to hurt him and his family. This is because Malaysia is a Muslim country and they are looking for more people to join Islam and threaten the life of those who do not join them.
·He does not think the authorities in Malaysia will protect him if he returns because he went to make a police report but the police did not do anything to protect them but instead asked them to them to ‘join Muslim’.
Evidence from the hearings of 4 and 9 December 2015
The hearing on 4 December 2015 was adjourned before any evidence was taken. At the hearing on 9 December 2015, evidence was taken from applicant 1 and applicant 2 separately and then from the two applicants together.
Applicant 1 indicated that he has a [child], who was born in [year] and is about [age], and is now living with applicant 1’s [sibling] in Ipoh in Perak state. He indicated he has [other siblings], one who lives in Ipoh, one who lives in Penang and one who is in an ‘old folks home’. He also has a [sibling] who lives in [town]. His father is deceased and his mother lives mostly with his [one sibling].
Applicant 1 indicated that in the past he had worked for a variety of companies as a salesman but most recently had been working out of his own home, running a [business]. He commented that he was old and nobody wanted to employ him.
Applicant 1 said he feared returning to Malaysia because Muslims were seeking to force him to convert to Islam. Because he is a Buddhist he didn’t like this.
The Tribunal asked applicant 1 to explain exactly what had happened to him. He said that in the beginning he was in his garden when 2-3 Islamic people, who he described as ‘Muslim Haji’ and ’wearing white hat’, shouted at him. They came in and one asked ‘why don’t you join us for to become a Muslim?’ The applicant indicated that he replied ‘no’, that he is a Buddhist and why should he. Applicant 1 said that after that ‘he gave me a slap’ and ‘threatened me’. Applicant 1 indicated that he (applicant 1) kept insisting and the Muslim person said that he will come again some other time, some other days. Applicant 1 indicated that the Muslims came back again and ‘it was still the same thing’.
The tribunal sought to clarify with applicant 1 the nature of the ‘slap’. Applicant 1 replied ‘it was just a threat you see, that’s all’. When asked whether it was like a joking slap applicant 1 replied that he had no idea and that he was nervous at the time. The Tribunal asked if it was a light slap to which applicant 1 replied ‘yeah a light slap’; ‘wake up, why don’t you join us as a Muslim’.
The tribunal asked the applicant whether he was aware that this had been happening in Penang or aware of other people who had been approached to become Muslims. He responded ‘no’ he was not aware this had been happening in Penang and that he had no idea whether other people had been approached.
Applicant 1 commented that after that ‘he keep asking whether you want it or not’ and that he (applicant 1) had replied ‘of course no’. Applicant 1 said he sought to make a police report but the police ignored him and said ‘why don’t you just join it, nothing will happen to you’.
The Tribunal asked applicant 1 how many times these people came and he indicated that they came twice. When asked what was said when the person shouted at him, applicant 1 said that he shouted ‘convert to Islam’. When asked when they first came he said last year, in October. When asked if he remembered the day he said ‘no’, just the month. When asked how he knew it was October he indicated that it was because he got threatened in October, that’s all he knows. Applicant 1 said ‘they’ came back one time, also in October, after ‘1-2 weeks’. He said he doesn’t remember exactly when as he kept planting and was busy, but it was around one to two weeks. The Tribunal asked whether it was the same three people who came back to which applicant 1 replied that it was the same 2-3 persons. The Tribunal asked applicant 1 exactly how many people came to which he indicated it was 2-3 both times. When asked if he didn’t remember if it was two or three he said it was three in the beginning and the same three when they came back. He said they came in a white car but he did not notice the type of car as he was scared.
When asked about the second time the Muslims came, applicant 1 said he didn’t see where they parked the car the second time. They knocked on the gate and one asked ‘whether you want to join us’. Applicant 1 indicated that he was asked whether he had thought carefully now and wanted to join them. He indicated that he was told he was stupid because he was staying in a Muslim country and was asked why he didn’t want to become a Muslim. Applicant 1 commented that he continued to say ‘no’ and said ‘maybe later, I let you know’. Applicant 1 indicated that the Muslims then left and he was not slapped or hit again. He commented that it was because he can speak ‘good Bahasa’. Applicant 1 indicated that the other two persons did not say or do anything.
When asked what he did after this, applicant 1 said he went to make a police report because he was scared that they might hurt him. However, the police just ignored him and did nothing – it was like ‘talking to a wall’. Applicant 1 indicated he said to the police that ‘Haji people come and force me and give me a face slap; why don’t you go and catch them’. He commented that the police suggested to him that he join the Muslim and nothing will happen to him and that he is staying in an Islamic country. Applicant 1 indicated that he did nothing, but just walked off.
The Tribunal asked applicant 1 whether the Muslim people came back. He said ‘no’ and commented that’s why he came to Australia. When asked what he did for the next two months before he came to Australia he said that he went to his [sibling]’s place, to my other [sibling]’s place for a stay for 1-2 weeks, that’s all.
Applicant 1 said his [child] was at school in Penang and did not accompany them to Australia because [he/she] is still in school and the applicant does not have that much money. When asked if he was worried for his [child] back in Malaysia he replied that if he got permanent residence then maybe he would bring his [child] to Australia. He indicated that he did not pack up his house or rent it out and that it is empty, but sometimes his [relative] cleans up for him.
Applicant 1 was also asked why he did not attend a protection visa interview with the Department. He said he did not receive a letter advising him of this opportunity. It was put to him that the departmental decision indicated that the opportunity to attend an interview was included in a letter sent to him [in] May 2015, which also asked him to provide personal identifiers. When asked if he provided these he indicated that he did attend the office to provide a thumb print after he rang the department to inquire about his wife getting work rights.
The Tribunal then asked applicant 2 about the events that gave rise to her concerns about returning to Malaysia. She commented that the situation was quite chaotic and ‘they’ came to ask us to join ‘their religion’. The Tribunal asked when this was. Applicant 2 said last year, but she couldn’t remember which month. When asked to try hard to remember, and how soon it was before she came to Australia, she replied that she thought it was two months. The Tribunal asked applicant 2 how many times the people came to which she replied they just came and when they came we told them we were Buddhist. The Tribunal asked applicant 2 how many people came. She replied 2-3 or 3-4. When asked exactly how many she said she was inside and when they came she walked out to see but didn’t know what was happening at the time. She didn’t see them driving and just saw them in front of the house. She said that when they knocked on the door she went outside and had a look. When asked if she spoke to them she said ‘yes’. She commented that that she asked them what they were here for and they said they want to talk to us, so she went inside and got her husband and he went outside to speak with them. She commented that she didn’t know how long her husband spoke to them as she didn’t pay much attention because she was inside doing housework. The Tribunal asked if her husband told her what happened. She replied that he said they ask us to join their religion Islam. Her husband was very angry and said to her ‘how could you force people?’
The Tribunal asked applicant 2 what else happened. She said they were ‘quite loud’ and there were a few people talking together. She came to look because it was very loud and she was afraid they may be about to have a have a physical fight. The Tribunal again asked applicant 2 if she could see how many people there were and she replied that she just had a very quick look as it was loud and she told their child to hide inside the house. The Tribunal asked if she called the police to which she replied she was so nervous she did not think about calling the police.
The Tribunal asked applicant 2 whether there was a fight. She said she saw that her husband was a ‘little bit injured’ – his face was grazed – and skin came off as if it was scratched. When asked if he was bleeding she said ‘a little bit’.
Applicant 2 said that the neighbours then came out and shouted ‘what are you doing’. The Muslim people saw quite a few neighbours and they left. When asked how she knew this she commented that her husband told her that and that she was still hiding in the house as she was really afraid.
Applicant 2 indicated she did not know if her husband went to the police after that as she was very nervous and her husband told her not to go out but to stay inside. When asked by the Tribunal whether she asked him about this later she said that they were very worried about what they should do to avoid this situation and worried that they (the Muslim people) would come to find us again. Later in the hearing she commented that she thought her husband did tell her that he was going to the police. When asked if this was after the incident where her husband received the graze she replied ‘yes’.
The Tribunal asked applicant 2 whether the Muslim people did come again. She replied that they packed some clothes and went to a relative’s place and hid. The Tribunal asked when she did this to which applicant 2 replied ‘the next day’. Applicant 2 indicated that they stayed there until they came to Australia. When asked by the Tribunal how long this was she said ‘not too long, just three weeks’. When asked if they stayed anywhere else applicant 2 replied ‘no’ - they just stayed there. She said the relative they stayed with was her husband’s [sibling] in Ipoh and the relative said this is not a long term solution and they should hide somewhere else. When asked by the Tribunal where they went after that, applicant 2 said they looked for a place and then came to [Australia]. She indicated that she and her husband did not go back home and did not stay anywhere else before leaving for [Australia].
The Tribunal put to applicant 2 that the time-fame she was outlining seemed to only cover a few weeks of a two month period. She was asked again whether the family stayed anywhere else. Applicant 2 said her husband’s [sibling] went to look at their house to see if those people were there but applicant 2 indicated that the family did not go back to the house.
When pressed by the Tribunal regarding how many times Muslim people came to the house applicant 2 commented that that after the family left, she didn’t know. When asked how many times they came while she and her husband were living at the house she indicated that after the one time the family left and confirmed that the Muslim people came just once.
The Tribunal asked applicant 2 if she was worried about leaving her [child] in Malaysia. She said [he/she] is living with her husband’s [sibling]. When asked if she thought the problem she had was just a problem in Penang and whether she could she live in Ipoh she replied that it is his [sibling]’s house and that such a thing might happen there as well. When again asked why she had left her [child] there if she thought there might be problems in Ipoh as well, she replied that we call them and her husband’s [sibling] has said they are ok there.
The Tribunal then spoke to both applicants together. It was put to the applicants that there were some differences in their accounts of what had happened to them: that applicant 2 had said applicant 1’s face was grazed and was bleeding; that she had said they left straightaway after the Muslim people came and that the Muslim people only came once; that she wasn’t sure whether applicant 1 had been to the police; that applicant 2 said that they just stayed with applicant 1’s [sibling] in Ipoh, and only for a few weeks; that applicant 2 had said when the Muslim people came it was very loud, that she thought there was going to be a big fight and the neighbours came out and shouted and the Muslim people went away. Applicant 1 responded that he was cut by a finger nail when he was slapped and it was a slight scrape. He did not go to the police after that to show he had been scratched because it was just a slight scratch and nothing serious. Applicant 1 said after they left he came back immediately because it is only a one and a half hour drive from Ipoh to the house. When it was put to applicant 1 that this was different from what his wife had told the Tribunal he commented that ‘she know nothing’. When it was put to applicant 1 that his wife wasn’t aware that he had been to the police he commented that he kept quiet and that he seldom talks to his wife. When asked by the Tribunal whether he stayed with his [sibling] for just a few weeks he replied ‘yeah’. When asked whether they stayed anywhere else he indicated that they just stayed with his [sibling] in Ipoh. When asked if that was for eight weeks he replied that he was in Ipoh that time. In relation to his wife’s comments that there was a lot of shouting when the Muslim people came to their house, applicant 1 commented that it was not that serious, that the neighbours were at work and the neighbours did not come out and shout at these people. In relation to the discrepancy regarding how many times the Muslim people came to the house, applicant 1 said the second time they came his wife was at work so she was not there. When it was put to applicant 1 that his wife indicated that they had left after the first incident, he replied that he came back.

After listening to their accounts of why they fear returning to Malaysia, the Tribunal read to the applicants some country information from the department of Foreign Affairs and Trade about the situation in Malaysia for Buddhists and ethnic Chinese generally, and sought their comments on that information. The applicants responded that the actual facts are different from what ‘they’ show the international people and that the Malaysian government was buying up successful Chinese businesses and these would then become Malay businesses.
Findings and Reasons
The issues in this review are whether the applicants have 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 them being removed from Australia to their receiving country of Malaysia, there is a real risk the applicants 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 applicants’ Malaysian passports provided to the Department, the Tribunal accepts that the applicants are citizens of Malaysia and that their identities are as they claim them to be. The Tribunal accepts that Malaysia is the applicants’ ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
The Tribunal has concluded that the key elements of the applicants’ account of what happened to them in Malaysia are not true. The Tribunal finds that the applicants were not visited at their home by Muslim people who asked them to convert to Islam, and were not harassed and threatened by Muslim people who came to their home. The Tribunal finds that the applicants were not told that they should convert to Islam because they are living in an Islamic country. The Tribunal finds that the applicants were not slapped or beaten by Muslims who came to their house seeking to encourage the applicants to convert to Islam. It follows therefore that the Tribunal does not accept that applicant 1 sought to report this matter to the police and was ignored and told that he should convert to Islam because nothing will happen and because he is living in an Islamic country. The Tribunal also does not accept, therefore, that if the applicants return to Malaysia, these people will return or find the applicants and force the applicants and their [child] to become Muslims. The Tribunal reaches this conclusion based on consideration of the following six factors, taken together.
First, the applicants were not forthcoming in giving their story during the hearing. Both applicants provided brief, generalised answers and had to be asked repeatedly to provide details. The applicants could not remember many relevant details of their story, such of when in Oct 2014 the initial incident occurred and whether two or three Muslim people came to their house. Applicant 1 could not recall whether the second time the Muslim people came to his house was one or two weeks after the first incident. The applicants were unable to explain where they stayed for the duration of the period from when the incident or incidents allegedly occurred in October 2014 until they departed for Australia [in] December 2014. In general, the Tribunal found the applicants to be vague and evasive when giving evidence at the hearing.
Second, applicant 1 said he was slapped by one of the Muslims who came to his house. The Tribunal sought to clarify with him the exact nature of this ‘slap’. He indicated that it was a light slap. He did not indicate that his face was reddened by the slap or that it was grazed or cut by the slapper’s fingernail. However, when applicant 2 was asked whether her husband fought with the Muslims who came to their house, she commented that she saw her husband was a little injured, that his face was grazed. When asked if it was bleeding she said a little bit. When this difference in accounts was put to applicant 1 he said it was just a slight scratch and nothing serious. The Tribunal considers that if applicant 1’s face was scratched he would have raised that when questioned by the Tribunal about the nature of the ‘slap’ he received.
Third, applicant 1 said there were 2-3 Muslim persons who came to the house while applicant 2 said there were 2-3 or 3-4. The Tribunal sought clarification from both applicants regarding exactly how many Muslim persons came to their home. When pressed, applicant 1 said there were three both times. Applicant 2 said she could not say because she did not see them clearly, even though she indicated that she went outside to have a look when they knocked and asked them what they were there for. Given the small number of people involved, the Tribunal does not accept that both applicants would be unable to recall precisely how many Muslim people came to their house on the day of the alleged incident.
Fourth, applicant 1 indicated that the Muslim people came to the house twice in October 2014, about one to two weeks apart, and after the second visit and his experience with the police, he and his family moved to his [sibling]’s place in Ipoh. Applicant 2 indicated that the Muslim people came once only, when her husband’s face was injured, and that the family left for Ipoh the next day. When the difference in the two accounts was put to the applicants by the Tribunal, applicant 1 indicated that he came straight back after they left. Later in the hearing he commented that the second time the Muslims came his wife was at work. When it was put to applicant 1 that applicant 2 said they had left after the first visit, applicant 2 again commented that he had returned to the house. The Tribunal does not accept the applicants’ explanations for these discrepancies.
Fifth, applicant 2 said the conversation between her husband and the Muslim people was very loud, that there were a few people talking together, that she feared there would be a physical fight and that eventually the neighbours came out and shouted and the Muslim people left. This is at odds with applicant 1’s account of the incident. When this was put to applicant 1 he commented that it was not that serious; and indicated that the neighbours were at work at the time, did not come out and did not shout. The Tribunal does not accept the applicants’ explanations for these discrepancies.
Sixth, applicant 1 indicated that he went to the police after the alleged second incident. Applicant 2 initially was unsure whether her husband went to the police at any stage. When asked later in the hearing if she or her husband ever went to the police to report what had happened, she indicated that she didn’t go but thought that her husband had told her that he was going to the police. When asked if this was after the incident where her husband received the graze she replied ‘yes’. However, applicant 2 said he went to the police after the Muslim people came back a second time, 1-2 weeks after the first incident. When it was put to applicant 1 that his wife wasn’t aware when he went to the police he replied that he did it quietly and that he seldom talks to his wife. The Tribunal does not accept the applicants’ explanations for these discrepancies.
Having determined that the particulars of the applicants’ account as detailed above are false, the Tribunal considered whether there is evidence that indicates that, in general, Buddhists and/or ethnic Chinese in Malaysia face a real chance of persecution on account of their race and or religion. In this regard, the Tribunal has given weight both to applicant 1’s comments at the hearing that he was not aware of other people being asked to become Muslims and 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.
The Tribunal noted the applicants’ comments in relation to this information but also gives weight to the fact that DFAT draws on a range of credible local and international sources in preparing its advice. On the basis of this country information and applicant 1’s comment referred to in paragraph 48 above, the Tribunal concludes that the applicants do not face a real chance of persecution amounting to serious harm from Muslims in Malaysia due to their Buddhist religion or their Chinese ethnicity.
As the Tribunal has found that there is not a real chance that the applicants would suffer persecution in Malaysia, the tribunal finds that the applicants would not require the protection of the authorities in Malaysia.
Do the applicants have a well-founded fear of persecution if they returned to Malaysia?
Having considered the applicants’ claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that either applicant 1 or applicant 2 is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicants do 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 either applicant 1 or applicant 2 is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that either 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 applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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 3925

11 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction