1513056 (Refugee)

1513056 (Refugee) [2016] AATA 4057 (5 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1513056
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Stuart Webb
DATE:5 July 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 July 2016 at 8:34am
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] April 2015. He attended a hearing of the Tribunal on 30 June 2016 to given evidence.
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 made the following claims with his application. He is an ordinary man who works for a living. The wage he had was just enough food and bills. He borrowed money from an Indian gangster who is a money lender. His [family member] is a high ranking police officer. Because he was a Malay interest was high. He was ‘whacked’ and abused mentally. He tried to ask a favour from his race authorities but no one helped as they were expecting bribes. His mother and family were threatened as well. He will be mentally and physically tortured by the gangster and his [family member] if he returns. He was whacked by the police and they filed fake case on him so he has a criminal record. The gangster’s [family member] who is a police officer will murder him and his family they can find him anywhere in Malaysia.
The applicant provided a copy of his passport issued [in] 2013. He arrived in Australia [in] December 2013 he lodged his protection visa application [in] April 2015. The applicant provided one residential address in Malaysia. He provided no information about his employment or education.
The delegate considered the limited information as provided led to questions and doubt as to the genuineness of the applicant’s claims. The delegate also considered that the delay in the lodging of the application was relevant.
Findings and reasons
Country of nationality
The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
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 Tribunal has very serious concerns regarding the credibility of the applicant. The claims as made at the Tribunal hearing had very little semblance to those as put in his written application, the applicant altering significantly the claims leaving only the basic claim that he had borrowed money from a money lender who was seeking to harm him. The Tribunal expressed its significant concern as to the change of claims and evidence.
In his application the applicant had stated he had borrowed money from an Indian moneylender, not specifying how much, for what reason or when he borrowed, that this money lender had a [family member] who was a high ranking police officer, he was beaten by the money lender and the police, and there was a fake case filed against him. The policeman could find him and his family anywhere in Malaysia.
At the hearing, the applicant provided a different claim. He borrowed money from a Chinese money lender to establish a [certain] stall at a night market. The applicant was initially not clear as to how much he borrowed, he stated [amount] or [amount] Malaysian Ringgits. He then stated he borrowed [Amount 1] three times. The applicant stated this was in 2009, his business failed within 3 months, he borrowed more, then more again. He left [island] with his family for Ipoh in September 2010 and worked in a factory. He had never been harmed by the money lender. He did not know if there were any connections to the police. He had never been harmed by the police. He has no charges. He came to Australia to make some money to pay off his debts. He has not paid off any debts while in Australia because his work has not been constant.
The Tribunal asked the applicant why his story was so different to his written claims. The applicant stated that his friend had helped him draft the application in English. He then stated his friend was his wife. He stated he had met his wife in Australia and they married in July 2015. He later stated that he had met his wife in Ipoh in 2012, where they got engaged. She wrote the application from what he told her.
The Tribunal explained that there were a significant number of inconsistencies in the evidence of the applicant. The Tribunal noted that the applicant had come to Australia in December 2013 and had plenty of time to prepare his protection claim, lodged in April 2014. The Tribunal noted that the claim as written down was significantly different, and had almost no elements of the new claim the applicant was making. The Tribunal noted that his now wife, to whom he claimed he was engaged to, had stated that he was not in a relationship, including being engaged, when he lodged the visa in April 2013. The applicant stated that this was a mistake. The Tribunal noted that despite his claim to have told his story to his wife, she had not included any of the detail, and that she had included completely different information, such as the involvement of the police, that the applicant was saying was not true. The Tribunal expressed its concern that the applicant had made no mention of the significant amount of money he claims to have borrowed in Malaysia in his application. The Tribunal noted that the absence of this information was unusual, given the claim by the applicant that he had explained his claim to his wife.
The Tribunal discussed the new claim of the applicant. He stated he had borrowed [Amount 1] Ringgit, which the Tribunal identified as currently $AUD[amount] to establish a [certain] store at a night market. The applicant stated he was required to pay 10% per month interest. The Tribunal noted that the applicant had made no reference to any work in his application. The applicant stated he was a business man. The applicant provided no information about any previous work he had done. The Tribunal noted that the applicant had stated in his application that he was on a wage that paid just enough for food and bills. The Tribunal stated that it was difficult to accept that he was now claiming that he was loaned [Amount 1] in the first instance with [amount] interest to be paid each month, with no background in work. The applicant stated he had borrowed small amounts like [amount] Ringgit in the past, and paid it back. The Tribunal asked what collateral was required by the money lender for such a large loan. The applicant stated that he was not required to provide anything, they took a copy of his ID card and saw an electricity bill. The Tribunal expressed its significant concern with the money lender providing the applicant with so much money with no security. The Tribunal asked the applicant for a copy of the loan agreement. The applicant stated that there was not any written agreement. The Tribunal expressed its concern with this, given the amount of money that was being lent and to be paid in interest. The applicant stated that had borrowed money before so they knew him.
The Tribunal asked about the subsequent money loaned. The applicant stated that his business failed within 3 months, so he went back and got another loan, of [Amount 1]. The applicant did not explain where the money had gone. The Tribunal expressed its significant concern with the evidence of the applicant that the money lenders would provide further money to the applicant when his business failed. The applicant stated that they did.
The applicant stated his father moved to Ipoh, Perek, in 2010, for work. The applicant stated he went with them. The applicant stated he left the money lender behind. The money lender called and texted him, but the applicant changed his number. The applicant stated that a note had been left at the house he had rented in [island]. The applicant stated that the money lender was looking for him, knew he was in Perek, but did not know where in Perek. The applicant stated that a friend from the night market had told the money lender that he was in Perek.
The Tribunal asked the applicant what the name of the money lender was. The applicant stated it was ‘Ah Long’. The Tribunal noted that this was not a personal name, but was the colloquial term for loan sharks and money lenders in Malaysia. The Tribunal stated it had significant concerns with the name. The applicant stated this was what he called him. The Tribunal asked about the reference to the Indian money lender in his application. The applicant stated that the Chinese money lender’s boss was Indian. The Tribunal questioned why the applicant had not mentioned the Chinese money lender in his application, given that was who he stated he borrowed money from.
The Tribunal noted that the applicant had been in Perek since September 2010 to December 2013. The Tribunal asked if he had ever been harmed or threatened by the money lender. The applicant stated he had not been, but feared that he would be. The applicant stated that the money lender had criminal connections across Malaysia and would find him. The Tribunal noted that the applicant had not been found in Ipoh.
The Tribunal noted that the applicant had a passport, issued in [month] 2013. The Tribunal noted that the applicant had a previous passport, issued in [month] 2010. The Tribunal asked if the applicant had ever travelled outside of Malaysia. The applicant stated he had been to [country] a number of times, which was very close to his home. He had also been to [another country]. The Tribunal noted a number of entry and exit stamps to [country] in 2013. The applicant stated he had travelled across the border with his family to buy things. The applicant stated he had travelled into [country] through [town]. The Tribunal located this location on the map and noted that it was in Kedah state[1], not too far from the island of [name] where he stated he was wanted by the money lender. The applicant stated he was wanted on [island]. The Tribunal noted that the applicant had stated that the money lender had connections everywhere and was looking for the applicant in other areas. The Tribunal expressed its concern with the applicant travelling back close to the very location he stated he had problems.
[1]
The Tribunal asked why the applicant had not left Malaysia earlier, if he had problem, since he had a passport since 2010, and had renewed it in [month] 2013. The applicant stated that a friend told him he could go to Australia and seek protection. The Tribunal asked the applicant why he did not seek protection in Australia when he arrived, having been unlawful for a year and lodging in April 2013, almost 18 months after his arrival. The applicant altered his claim, stating that his friend in Malaysia had told him he could come to Australia to work, but that it had been someone in Australia who had told him about the protection scheme. The Tribunal noted that the delay in applying was a significant issue, given his claim to fear harm in Malaysia, and failure to apply for such a period of time.
The Tribunal asked the applicant about the claims about the police. The applicant stated he had no problem with the police. The Tribunal noted that the applicant’s written claims stated something else. The applicant stated that the money lender may have connection to the police. The Tribunal noted that the applicant’s written claims had referenced a high level police officer being a [family member] of the Indian money lender, that he had been ‘whacked’ by the police, and that he had false charges laid against him. The Tribunal asked if any of this was true. The applicant stated it was not. The applicant could not explain why this was included in his claim. The applicant stated that his claim to have borrowed money was true.
The Tribunal has considered the claims of the applicant. The Tribunal considers that the applicant has concocted his claims for the purpose of seeking to remain in Australia. The Tribunal notes that the applicant’s claims have significantly changed since lodging his application. The explanation for the changes, that his now wife wrote them down incorrectly, does not explain the significant absence of the primary claim, borrowing [amount] Malaysian Ringgit, almost AUD$[amount], in his application. The Tribunal considers that if this claim was true he would have raised this in his application.
The applicant’s evidence regarding these loans was both vague and implausible. The applicant provided no information about his previous work, stating that he borrowed such a significant amount of money to set up the business. The Tribunal noted that he had previously stated he had earned just enough to buy food and pay bills. He was now claims that within a few months he was able to borrow over [amount] Ringgit without any security provided or contract signed, and with a 10% interest payment per month. He claimed to have lost the initial [Amount 1] within three months, and that the money lender was willing to loan him more, and more again at a later stage. The Tribunal does not accept that the applicant, with no history of employment, would be lent such sums without some supporting materials and documentation. The Tribunal further considers that had the applicant been lent such sums, he would have raised it in his original application and it would not have been omitted by the person who wrote his claims.

The Tribunal does not accept that the person who wrote his claims made such errors as omitting the money borrowed. The Tribunal does not accept that the person who wrote his claims provided the false information about the applicant being harmed by the money lender or the police. The Tribunal considers that the applicant made up this claim, and having had the inconsistencies and absence of information identified by the Tribunal, provided further information that was contradictory with that as previously stated. The Tribunal considers that this is because the applicant was concocting his claims.
The Tribunal does not accept that the applicant would call the Chinese money lender ‘Ah Long’. The Tribunal noted that this was a colloquial expression for money lenders and loan sharks in Malaysia. The Tribunal considers that if the applicant had borrowed money, which he stated he had done on a number of occasions, he would know the name of the person who he borrowed from. The Tribunal considers that this vague and implausible aspect of the applicant’s evidence supports the adverse credibility findings of the Tribunal regarding the claims of the applicant.
The Tribunal notes that the applicant stated the money lender was looking for him, and knew he was in Perek. However the applicant also stated his father moved to Ipoh for work and the applicant went with him. The money lender never found him, despite the supposed connections he had with gangsters across Malaysia. The applicant in fact travelled back to Kedah on occasions to cross the border to [country], near where he had previously resided. The Tribunal considers that the applicant’s claims to be searched for by the money lender and his associates to be a fabrication. The Tribunal does not accept that the applicant would return to Kedah if he had outstanding debts to a money lender and was wanted for not paying them. The Tribunal considers this further reason as to why the applicant’s claims are fabricated.
Given the significant concerns with the evidence of the applicant as outlined above, the Tribunal makes the following findings. The Tribunal finds that the applicant has not borrowed money from a money lender, and does not owe any money in Malaysia. The Tribunal does not accept that the applicant is being sought by a money lender in Malaysia. The Tribunal does not accept that the applicant has ever been threatened or harmed by a money lender in Malaysia.
The Tribunal finds that the applicant does not have a real chance of serious harm arising out of his owing money to a money lender on return to Malaysia and in the foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.
Further, having considered the applicant’s claims as detailed above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm on return to Malaysia for this reason.
The Tribunal notes that the applicant stated at the hearing that the written claims that he had been ‘whacked by the police’, faced ‘false charges’ and that the money lender’s [family member] ‘was a high level police officer’ who could use his contacts to find the applicant, was not true. The Tribunal considers the applicant has abandoned this claim. As detailed above, the Tribunal does not accept that the applicant has any concerns with a money lender in Malaysia. Accordingly, the Tribunal does not consider that the claimed possible link between police and money lenders in Malaysia, which the applicant referenced at the hearing, has any relevance to the applicant. The Tribunal finds that the applicant does not have real chance of serious harm or a real risk of significant harm from the police in Malaysia.
The Tribunal asked the applicant about his wife. The Tribunal has significant concerns regarding the evidence of the applicant as to when the relationship began, noting the contradictory evidence regarding meeting her in Australia, and his later claim to have been engaged in Malaysia to her. The applicant stated that she was from Kelantan, but was working in Selangor. The Tribunal noted that Perek was neither of those locations. The applicant stated he had met her through friends., The applicant’s evidence was vague and limited regarding his meeting his wife in Malaysia. The Tribunal does not accept that he met his wife in Malaysia, but considers that he met her in Australia, as initially stated at the hearing.
The Tribunal asked what his wife’s status was in Australia. The applicant stated she was seeking asylum. He did not know the detail of her claims but believed it was because of money lenders. The Tribunal asked the applicant if he had any fear of harm arising out of his wife’s circumstances. The applicant stated he did not.
Accordingly, given the evidence of the applicant, and given he did not know her previously in Malaysia, the Tribunal finds that the applicant does not have real chance of serious harm or a real risk of significant harm arising from his wife’s circumstances in Malaysia.
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 4057

5 July 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice