1514626 (Refugee)

1514626 (Refugee) [2016] AATA 4036 (22 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514626
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Amanda Paxton
DATE:22 June 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 22 June 2016 at 3:57pm

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] October 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] August 2015. The applicant provided the Tribunal with a copy of the delegate’s decision.
The applicant appeared before the Tribunal on 17 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English language.
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
Claims
The applicant made the following claims in his responses to Questions 89 – 96 of his application Form 866C:[1]
·     The applicant acted as guarantor for his friend’s loan and he is now being chased by loan sharks.
·     He has been threatened once in Malaysia because of the loan. They came to his house, so he decided to go to [Country 1] for one night but he thought it was still dangerous so he came to Australia.
·     The applicant has not tried to move to another part of Malaysia because the loan shark is very big and will try to follow him wherever he goes in that country. His family members tell him that they are still coming for him and sent a note of warning.
·     He has not gone to the police to make a report because he has no proof, so they cannot protect him and his personal things.
·     The loan shark has contacts at the border and will kidnap him if he returns so he has decided to stay in Australia.
[1] DIBP, ff. 16 - 18
The applicant attended a hearing on 17 June 2016, and his claims at the hearing can be summarised as follows:
·     The applicant finished high school in [year] and then did a range of [work]. Before coming to Australia he was working in a factory.
·     The applicant married in Australia in [2015] after lodging his protection visa application. He provided a copy of his marriage certificate to the Tribunal.[2] His wife is Malaysian and has also lodged a protection visa and is in the community on a Bridging visa. He has [children] in Malaysia.
[2] AAT, ff. 21 - 22
·     The applicant is not working at the moment. He has worked since coming to Australia and when he and his wife run out of money they both work. He must sometimes ask for help from friends.
·     The applicant fears return to Malaysia because he borrowed some money from a loan shark and could not repay it. He does not remember the name of the loan shark because in Malaysia there are many loan sharks and they do not have registered offices. He was working in the Kuala Lumpur area and a friend introduced him to the loan shark and he met the loan shark in a [location]. The applicant borrowed [amount] Malaysian Ringgits (MYR) (approximately [amount] Australian Dollars (AUD)) because he was a drug user and wanted to buy drugs. He has no paperwork in relation to the loan. The loan shark has the paperwork.
·     The applicant does not remember the month he borrowed the money, but it was sometime in 2014. The applicant had a problem with drugs so his mind was not clear and he does not recall dates.
·     The applicant did not make any repayments of the loan of any kind because he was working in a factory and his wage was not enough. He was required to make monthly repayments. He does not know how much he was required to pay on a monthly basis but he was required to return a total MYR [amount] within one year.
·     He is not sure how many monthly repayments he missed but calculated that there were probable [number] monthly repayments before he came to Australia. He is not sure but he probably took the loan out in September or October 2014.
·     When the applicant missed the first monthly repayment, an associate of the loan shark came to the house. He threatened the applicant by saying that in Malaysia there are many cases where loan sharks arrange for people in his situation to be beaten and did he want to be like them. The applicant responded saying that he would make the repayment.
·     The man came [number] times to his house. The applicant does not remember when but he then ran away to [Country 1] to find safety. He went across the border and stayed there one night. He did not stay longer because he thought it was not safe there. Nothing happened to the applicant in [Country1] but he thought the loan shark would find him because the loan shark has many tentacles and he was afraid. A friend advised him that it was better to go to Australia. The applicant provided his passport to the Tribunal and passport stamps indicate that he crossed the [Country 1] border [in] January 2015 and returned to Malaysia [in] January 2015.
·     The applicant has had no contact with the loan shark since this time.
·     The applicant did not go to the police when he was threatened because he had a drug problem and he thought he would look bad in the eyes of the eyes of the police.
·     The applicant has not made any repayments to the loan shark since being in Australia. He has thought about doing this but the loan shark will now want more money, maybe MYR [amount] (approximately AUD [amount]).
Country of reference and identity
Based on the copy of the applicant’s passport and his written evidence, the Tribunal accepts that the applicant is a national of Malaysia and has assessed his claims against that country for the purposes of ss.36(2)(a) and (aa).
The Tribunal further accepts that the applicant’s identity is as claimed.
Third country protection
On the evidence before it, the Tribunal is also satisfied that, for the purposes of s.36(3) of the Act, the applicant does not have a right to enter and reside in a third country.
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).
Findings and Reasons
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
On the basis of statements provided by the applicant and supported by information on the file, the Tribunal accepts that the applicant is from Malaysia, is [age] years old and arrived in Australia [in] January 2015 as the holder of an Electronic Travel Authority. The Tribunal also accepts that he recently married a Malaysian national in Australia.
The Tribunal has a number of significant concerns with the applicant’s claims. Significant discrepancies in the applicant’s evidence and his vague, sometimes implausible evidence, lead the Tribunal to determine that the applicant is not a generally credible witness. The Tribunal has made this finding for the following reasons.
The applicant presented claims at the Tribunal hearing which were considerably different to his written claims. At commencement of the hearing, the applicant stated that a friend helped him to write the application. The applicant explained that he and his friend sat next to each other and his friend wrote his claims while the applicant told his story. When they did know a word in English, the applicant looked the word up in the dictionary. He stated that he was satisfied his written claims were correct and he confirmed this again later in the hearing. In his oral evidence concerning his fears about returning to Malaysia, the applicant did not refer to his written claim that he was a guarantor to a friend who took a loan with a loan shark, and the Tribunal enquired about this. He stated that he did not remember to mention this and that he was a guarantor for a friend’s loan with a loan shark who is now chasing him. This friend was also taking drugs and they borrowed money together. The Tribunal notes the applicant’s claim, discussed further below, that he has been a drug user and his memory is therefore not good. However, given that the applicant’s dealings with the loan shark are central to the applicant’s claims, the Tribunal would expect the applicant to remember to mention his claimed situation as his friend’s guarantor. The applicant’s failure to mention this claim raises serious doubts for the Tribunal about the applicant’s general credibility.
The Tribunal also observed that the applicant did not mention that he himself had taken a loan with a loan shark, the basis of the central claim made in his oral evidence. The Tribunal questioned why the applicant had omitted this claim in his written statement. The applicant stated that this may have occurred because he does not know how to write in English and his friend may not have understood what the applicant was saying. Given the applicant’s earlier confirmation that he was satisfied that the written claims were correct, and the straightforward way in which the claims were scribed and translated onto the application form, the Tribunal does not accept this is a credible explanation of the discrepancies between his oral evidence and his written claims. The Tribunal also notes that while the claims in the application are very brief, it is clear what the claims are and there appears no reason why the applicant’s own loan would not be mentioned if this had been discussed. The differences between the applicant’s written claims and his oral testimony in this respect lead the Tribunal to have further serious doubts about the applicant’s general credibility.
In relation to the applicant’s claimed dealing with the loan shark, the applicant stated in his application that he was threatened once by the loan shark, but in oral evidence he claimed that the loan shark’s associate came [number] times to his home. He further stated in his application that his family received a warning note from the loan shark, but at the hearing he did not raise a claim of having any further dealings with the loan shark. These discrepancies in his account of his situation lead the Tribunal to have significant concerns about the credibility of the applicant’s claims.
At the hearing, the applicant was vague in his responses to questions seeking more detail about the loan and he lacked spontaneity in their delivery. The applicant did not know the monthly repayment figure on the loan and could provide only an amount to be returned by the end of the year. He hesitated for a long time before providing and figure for the total repayment. The Tribunal formed the view that he was calculating a figure before responding and that he appeared to be making up the details on the spot. Even taking into account the applicant’s poor memory, the Tribunal would expect the applicant to have a clear idea of what his loan repayment responsibilities were given the significance of the loan to his claims. The applicant’s inability to provide this information heightened the Tribunal’s concerns about the applicant’s credibility.
In considering the applicant’s general credibility, the Tribunal has considered the applicant’s account of his travel to [Country 1] which he claims was undertaken to escape the threats of the loan shark. In response to questions about this claim, the applicant was extremely vague. He could not articulate how going to [Country 1] for one night would assist him to escape the loan shark. When it was suggested that it was difficult to believe that the applicant would go some distance to [Country 1] but stay only one night because he feared the loan shark, the applicant stated that he went to [Country 1] by motorbike and it was not a long distance from where he was staying. He responded that he went for only one night because he was not thinking clearly. He returned to Malaysia because he was scared that he could be found in [Country 1]. The Tribunal does not accept that an overnight trip to [Country 1] is a plausible response to threats from a loan shark. The Tribunal does not accept that the applicant went to [Country 1] to escape harm from a loan shark.
The Tribunal noted that the applicant claims he made no repayments to the loan shark because he could not afford to on his wage from the factory. While the sum owed may have been high relative to his wage in Malaysia, at MYR [amount] it was not a large loan and the Tribunal suggested that given the applicant’s evidence that he had worked in Australia, it would not be unreasonable to expect that he would make some repayment or to make the repayment in full. The Tribunal further noted that even at the time of the hearing, the applicant’s claimed repayments are only six months overdue and the Tribunal would expect that repayment would still be manageable. The applicant stated that thought of making repayments but he had not always worked in Australia and sometimes has to rely on friends for funds. When he has money he gives it to his mother and to his [children]. The Tribunal accepts that the applicant may have limited resources in Australia and that when he has been able he has given priority to providing funds to his family. However, the Tribunal does not accept that if the applicant feared harm because he had failed to make any loan repayments that he would not have made any effort to repay the loan. On this basis, the Tribunal considers the applicant’s claims concerning loan repayments are not credible.
The applicant stated that his memory is bad because he was a drug user, and this explained his difficulty in remembering dates such as the date of his marriage in [2015] and the date of his trip to [Country 1] in January 2016. The Tribunal accepts that details can be difficult to remember, and that memory can be affected by drug use. However, the Tribunal notes that in general the applicant was clear and was capable of presenting his claims. The Tribunal does not accept that the applicant’s poor memory for detail explains his inability to know what his claims are or the reasons for his actions. The Tribunal does not accept poor memory as an explanation for the discrepancies, vagueness of implausibility of the applicant’s claims.

In considering the applicant’s general credibility, the Tribunal has considered that he did not raise any claim to need protection from the loan shark until [date] August 2015, after he had been in Australia for six months, the last two months of which he had been unlawful in the community. The applicant stated that while he knew he was unlawful, he did not know about protection visa applications until his friends advised him to apply. He stated that he did not have much education and he was not aware of the possibility of a protection visa. The Tribunal accepts that the applicant does not have a high level of education. However the Tribunal notes that the applicant is a mature and experienced man who has held employment in a number of fields in rural and urban areas. The Tribunal does not accept that the applicant was unable to make enquiries about his visa options. The Tribunal considers that if the applicant had feared harm from a loan shark or anyone else he would have sought information about his visa options as soon as possible. The Tribunal does not accept that ignorance would stop the applicant from seeking to lodge a protection visa for so long. The Tribunal would expect that he put forward his claims at an earlier time. These considerations cause the Tribunal to have further doubt as to the credibility of the applicant’s claims to be in need of protection.
The Tribunal asked the applicant why he did not report the loan shark to the police, if he was being threatened in the way he claimed. The Tribunal noted country information, such as that in the delegate’s decision, that detailed that illegal money lending or loan sharking is an offence in Malaysia and the police were cracking down on loan sharks, especially where there was violence and intimidation, and that the evidence indicates that the police are willing to take action.[3] The applicant was further advised that country information indicates that victims of loan sharks are being encouraged to make reports to the police so they can take action.[4] He responded with the view that Malaysian newspapers do not report things truthfully and that the police would take action on only 10% of cases reported to them. While the applicant agreed that loan sharking is an offence, he states that people who report it still get beaten. The applicant also stated that he did not go to the police because he had no proof of the loan and they knew he was a drug user and they would do nothing. The Tribunal has taken the applicant’s reasons into account but, as expressed to the applicant, still had concern that, notwithstanding his claimed profile as a drug user and the absence of proof, both of which may had led to a higher level of enquiry of the applicant by the police, the applicant had not taken any action to pursue assistance from the police for the alleged threats and intimidation claimed, given the country information about the authorities, as cited in the delegate’s decision and put to the applicant at the hearing, cracking down on loan shark behaviour where violence and intimidation was involved.
[3] CX6A26A6E2620: "Govt getting worried about loan sharks", Rakyat Post, The, 29 March 2016, CXBD6A0DE1580: "KL Consumer Safety Association - No need to fear the loan sharks", Bernama (Malaysian National News Agency), 17 February 2015,
At the conclusion of the hearing, the applicant requested time to provide to the Tribunal proof about the loan from his family. On the basis that the applicant has had a considerable period, over 12 months, since lodging the application to obtain evidence and also taking into account his repeated claim that he did not have any proof which leads the Tribunal to question the genuineness of documentation provided at this time, the Tribunal did not agree to this request.
The Tribunal has considered all the evidence of the applicant. As detailed above, there were significant discrepancies in his evidence, and vague and implausible claims. On this basis the Tribunal formed the view that the applicant was not a credible witness. On the evidence before it, the Tribunal:
·     does not accept that the applicant took out a loan with a loan shark of RMY[amount]; and
·     does not accept that the applicant was guarantor for a friend who borrowed money from a loan shark; and
·     does not accept that the applicant and his friend borrowed money together from a loan shark; and
·     does not accept that the applicant owes money to a loan shark and that he was threatened in Malaysia by an associate of a loan shark because he failed to repay a loan either as a guarantor to the loan or as a borrower.
·     does not accept that the applicant is being chased by loan sharks; and
·     does not accept that the applicant went to [Country 1] for a night because he feared harm from a loan shark and then came to Australia for the same reason.
It follows that the Tribunal does not accept that the loan shark will try to find the applicant wherever he goes in Malaysia or that he will kidnap the applicant if he returns because he has contacts at the border and will know he has returned.
The Tribunal finds that the applicant does not owe money either as guarantor or as borrower to a money lender in Malaysia, that he is not being pursued by a money lender, and that he will not be harmed or intimidated in Malaysia for this reason.
The Tribunal finds that the applicant does not have a real chance of serious harm arising from dealings with a money lender in Malaysia, now or in the foreseeable future. The Tribunal finds that there is not a real chance that, if retuned to Malaysia, the applicant would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a). The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.
Further, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Malaysia, there is a real risk he will suffer significant harm.
The applicant makes the claim that the Malaysian police are corrupt and will not protect him. As the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm from a loan shark or anyone else, the Tribunal finds that the applicant will not require the protection of the authorities in Malaysia for this reason and has therefore not considered claimed difficulties in obtaining state protection because the police are corrupt.
CONCLUSION
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.
Amanda Paxton
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 4036

22 June 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction