1514351 (Refugee)

1514351 (Refugee) [2015] AATA 3810 (30 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514351
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Stuart Webb
DATE:30 November 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 November 2015 at 1:17pm
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] September 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] May 2015. The delegate refused to grant the visa on the basis that the applicant’s claims about his alleged conversion from Islam to Mahayana Buddhism were vague and limited, with very little detail as to the difficulties he had in Malaysia. The delegate did not accept that the applicant was ever harmed. The applicant provided a copy of the delegate’s decision to the Tribunal.
On 11 November 2015 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 27 November 2015. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. On 20 November 2015 and 26 November 2015 the Tribunal sent the applicant an SMS reminder of the hearing date to the phone number provided with his application, The 20 November 2015 SMS was noted as failing reach the applicant at the number he had provided the Tribunal. At the time of the decision there was no such failure notice of the 26 November 2015 SMS. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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, from questions 90-96 of the 866C Form.
He was a Muslim and changed to Mahayana Buddhism in 2010. He was caught in his workplace by Muslims, then lost his job. He was held in a ‘Muslim church chamber’. The Muslim community regularly restricts his behaviour, limiting his food and sleep. His family no longer communicate with him, his fiancé left him. he was in hiding and could not find a job. The local authorities and police are Muslim and advised him to convert back to Islam. He had ‘records on the book of the Community. How hard to make a live [sic] as before if I were back in Malaysia’.
The applicant also provided a statement. This said:
I came from Malaysia, and have remained in Australia since December 2011.
I left Malaysia in December 2011 and arrived in Australia with ETA visa. The Majority of Malaysian Malay people are Muslim, and I was a Muslim. I changed to follow Mahayana Buddhism in 2010. Because I found being in a happy mood as a Buddhism. Although Malaysia is a multi-religious society, and the Malaysian constitution theoretically guarantees freedom of religion, Islam is the official religion of the country, as well as the legally-presumed faith of all ethnic Malays. No ethnic Malay is allowed to leave Islam. In 2010, when I got chance to get to know about Buddhism, I felt more comfortable.
But the Muslim community asked me must to fulfill the responsibilities and obligations as a Muslim and would monitoring me regularly. Without promises and actions, they would continue to forcing me go to regular study and repentance, otherwise the Muslim community would notify my employer that I was a dishonest man.
I had been asking for help from local government and police, this religion issue has seriously affect my life, the girlfriend left me, family members also are no longer communicate. However, the local government officer also advises me change the religious back to Muslim and would not facing these troubles anymore. I do not want such an irresponsible religious beliefs.
Muslim community regularly restrict my freedom, do not give food, not allow to sleep after they persuaded me many times, but I was still insist on my idea. This has been repeated in my life.
I was decided to leave Malaysia in 2011, I want a new life and I do believe I have right to choose my life. However, local Muslim union can always find me if I get to work in that city.
After careful consideration, I decided come to Australia. I applied Australia ETA visa and arrived in Australia in December 2011. My parents told me the Muslims were try to contact me and advice if I back to Malaysia. I dare not contact with my family since then.
Australia is a truly free country, different beliefs would not affect the way people communicate and live. I am really feared returning to my country. I fear Muslims will hurt and destroy my life there, I born and lived in Malaysia for early [number] years there, my family members and brother are still living there, but I have to sad to leave.
The delegate noted the following information and migration history in their decision.
The applicant is a [age] year old male born in Perak in Malaysia. He has not provided any details of his ethnicity and states that he is a Buddhist. He declares his relationship status as being "Separated". According to the Department of Immigration and Border Protection (Department) records he arrived in Australia as the holder of a Malaysian passport ([number]) and as the holder of Class UD Subclass 976 an Electronic Travel Authority (ETA) on [date] December 2011. His ETA was granted offshore on [date] December 2011 and allowed him multiple entries into Australia and a stay in Australia for three months.
According to departmental records the applicant was included as the spouse and dependant applicant in an application for the grant of a Class TU Subclass 572 (Student) lodged by his [spouse] [in] March 2012. He and his wife were granted the same on [date] April 2012. The applicant's Student (Dependant) visa granted him multiple travels to Australia and allowed him to remain in Australia until [date] December 2013. While the applicant states that he has not travelled out of Australia since his arrival on [date] December 2011, departmental records indicate that he travelled out of Australia as the holder of his Student dependant (TU 572) visa on [date] July 2012 and returned on [date] February 2013. The applicant has remained in Australia since his arrival on [date] February 2013.
[In] October 2013, the applicant lodged an application for the grant of a Class TU Subclass 570 (Student) that was granted on [date] December 2013 giving him multiple travels to Australia and a period of study and stay in Australia until [date] December 2015. He is currently in Australia as the holder of this visa.
[In] May 2015 the applicant lodged an application for a Protection (subclass 866). The applicant was granted a Class WA Subclass 010 visa (Bridging Visa A) in association with this application that is currently "Out of Effect" as his Class TU Subclass 570 (Student) visa is still in effect.
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. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of the Refugees Convention and receiving country for the purposes of the 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 invited the applicant to a hearing as his claims were vague and limited. He had not taken up the opportunity to discuss his claims with the Department, to provide further information about his claims. He did not attend the Tribunal to discuss these claims.
The Tribunal has significant concerns regarding the claims of the applicant. Had the applicant attended the hearing, the Tribunal would have questioned him about his feared harm as a Buddhist from Muslims. The Tribunal would have asked the applicant about his experience as a Buddhist in Malaysia, and how he may have been mistreated. The Tribunal would have noted country information regarding the religious affiliations of the different ethnic groups in Malaysia, including that ethnic Chinese Malays are predominantly Buddhist or Christian. The Tribunal would have discussed information from the 2010 census that only 25 000 ethnic Chinese male Malays identified as Muslim, out of a Muslim population of over 17 million[1]. This includes all ethnic Malays. The applicant did not identify an ethnicity in his application, but has a Chinese name, as does his family and has specified Cantonese as his language. The Tribunal considers that the applicant is a Chinese Malay. The Tribunal would have asked the applicant about his highly unusual claim of being a Chinese Malay Muslim, how this aspect of his background came about and about his family more generally. The applicant has not been forthcoming on this aspect of his claims.
[1] 2010 Malaysia Census, also referenced in ‘Islam in Malaysia’,
Had the applicant attended the hearing, the Tribunal would have asked him about his conversion to Buddhism in 2010, why he converted, how he converted, what he went through in this experience, whether others in his family converted. The Tribunal has a number of questions about this conversion that have not been answered as the applicant has not attended a hearing.
The Tribunal has a number of questions regarding the mistreatment he claims to have received due to his conversion. The applicant’s claims regarding mistreatment are vague and limited, he does not provide details as to who was mistreating him apart from ‘the Muslim community’. The applicant has claimed that no ethnic Malay’s are allowed to leave Islam, the Tribunal would have asked how this affected the applicant given his Chinese heritage. The applicant has provided very limited information regarding his mistreatment, claiming in his statement that the Muslim Community regularly ‘restrict my freedom, do not give food, not allow to sleep’. It is not clear what the applicant is describing in this aspect of his claim, and the applicant has not attended to provide further details. In the application itself, the applicant stated that ‘Muslims caught in my work place, then locked up in a Muslim church chamber.’ The applicant has provided no further detail as to what this means, whether he was detained or not, harmed or threatened. Further, the applicant has not explained what he meant by being monitored by Muslim community. The Tribunal is concerned by the lack of detail in this aspect of the applicant’s claim.
The applicant has claimed that he lost his job ‘because my boss will not trust me to be reliable person.’ However in his application the applicant has not detailed any actual employment, stating only in the section asking about his employment history that from December 2012 to current he is ‘currently retired[2]’. He gives no detail of any work history in Malaysia, including any loss of job. The Tribunal would have asked the applicant about the loss of his employment given the lack of detail in his application.
[2] Q85, 866C, DIBP Folio 14
The applicant has also claimed he lost his girlfriend because of this issue. No detail was provided as to this relationship. The applicant did identify that he was separated [in] 2014 in [Australia]. It is not clear whether this relates to his Malaysia experience. The delegate noted in their decision that the applicant came to Australia on a visitor visa in December and was included as a spouse dependent of his wife’s student visa application [in] March 2012. It is therefore unclear as to what relationship was affected by his circumstances.
The applicant claims he went into hiding in a neighbouring small town. The applicant provided no details as to this town, or any residence in Malaysia, aside from being born in Perak. The applicant has not attended the hearing to provide further information about this element of his claim.
The applicant stated he went to the local government and police, but was advised to change back to Muslim and he would not face these troubles anymore. The Tribunal would have asked the applicant to provide further information about this, given his ethnic background and how his religious beliefs were recognised by the authorities. The Tribunal is concerned by the lack of detail in this aspect of the applicant’s claim.
Had the applicant attended the hearing, the Tribunal would have asked the applicant about his migration history. The applicant arrived in Australia in December 2011 and was later granted a student visa. The applicant noted in his application that he had not departed and re-entered Australia since his first arrival[3] and not returned to Malaysia[4]. The delegate noted departmental records identified the applicant departing Australia [in] July 2012 and returning [in] February 2013. The Tribunal would have asked the applicant about his activities during this extended 7 month period, and why he had provided false information in his application. This 7 month period is of serious concern to the Tribunal.
[3] Q70, 866C, DIBP Folio 16
[4] Q71, 866C, DIBP Folio 16

The Tribunal would also have asked the applicant to explain the delay in lodging his protection visa application, noting that the applicant arrived in Australia in December 2011, left in July 2012, and returned in February 2013, yet did not apply for protection until May 2015. This is a significant delay, and the Tribunal is very concerned by it, that had the applicant had a fear of harm of return to Malaysia he would have lodged his protection visa far earlier than the eventual date. He has not attended to explain this delay.
The applicant’s claims, as detailed in his application are devoid of information about his circumstances that the Tribunal is unable to consider anything except that the applicant has a fear of Muslims as a Buddhist in Malaysia, and the authority is full of Muslims workers. Had the applicant attended the hearing, the Tribunal could have asked him questions to elaborate on this limited application. He did no, so the Tribunal could not.
The applicant has not attended the hearing with the Tribunal to provide more information about his claims, where he was advised in the hearing notice that the Tribunal had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The applicant’s claims are vague and very limited, with only small details regarding the overall situation that has led to his fearing harm at the hands of Muslims. As stated above, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and the failure of the applicant to attend the Tribunal hearing, and the departmental interview before that, and vague and limited claims as provided, leads to the Tribunal to have significant credibility concerns about the claims of the applicant.
On the basis of the very limited evidence before it, the Tribunal is not satisfied that the applicant has in the past experienced harm from Muslims, arising from a conversion or otherwise, or that he was harmed by any group. On the evidence before it, the Tribunal does not accept that the applicant has a real chance of serious harm if he returns to Malaysia because of his religious beliefs, now or in the reasonably foreseeable future.
Having considered the applicant's claims, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from Muslims if he returns to his home in Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugee Convention definition. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
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.
…

[2015] AATA 3810

30 November 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies