1515149 (Refugee)

1515149 (Refugee) [2016] AATA 4379 (9 September 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515149
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Amanda Goodier
DATE:9 September 2016
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 September 2016 at 9:58am

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.
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.[1]
CONSIDERATION OF CLAIMS AND EVIDENCE
[1] Department of Foreign Affairs and Trade 2016, DFAT Country Report – Malaysia, 19 July.
Background
The applicant indicates he was born on [date] in Sabah, Malaysia. He indicates he can speak, read and write Malay and has never been married or in a de facto relationship. He indicates that his mother, father and [siblings] remain in Malaysia. He indicates he departed legally on his passport issued [in] 2012 in Kota Kinabalu. He indicates he has visited [Country 1] and [Country 2]. He provides one address at which he resided in Sabah. He provides no details of past employment and indicates [number] years of education in Malaysia.
The applicant claims that he escaped from Malaysia to escape harm and persecution by creditors and associated gangsters. He claims that he bought a [product] shop. The previous owner had used the business as a pledge to borrow money from creditors and without knowledge of the pledge he entered into an agreement to purchase the business. In order to purchase the shop, he borrowed money and after the purchase, creditors came to the shop looking for the unpaid debt pledge by the previous owner. Although he told them he was the new owner, the creditors came to the shop demanding payment. The creditor and his associates adopted violent means for the purpose of collecting the debt and their actions significantly damaged the business income and he had to close the business to stop further loss. The creditors have harassed and intimidated his parents and siblings so he cannot live with them. As a result he had to go into hiding and came to Australia. As he denied the liability of the previous owner’s pledge and refused the payment demand, he has received physical harm from the creditors and their associates who have also constantly harassed his parents as well. He cannot afford to pay back the debt he borrowed for the purchase of the business and the business closed down. The creditors and their associates warned him not to report the matter to the police otherwise his parents and family would be held to ransom and they have a connection to corrupt police. It is not helpful to seek police assistance in Malaysia. The creditors and their associates have connections all over Malaysia and he is unable to move to another part of Malaysia. Unless he admits liability of the previous owner’s debt and made a reasonable arrangement for repayment to the creditors his family would be in danger if he returns to Malaysia. He will receive significant mistreatment if he cannot meet the demands of the creditors. As the corrupt police and authorities have close ties with the creditors, it is unlikely he will be able to obtain protection from them and it is not practicable for them to offer 24 hour protection.
According to the delegate’s decision which was attached to the application for review, the applicant arrived in Australia as the holder of an Electronic Travel Authority granted to them [in] June 2012, arriving in Australia [later in] June 2012. The ETA subsequently ceased [in] September 2012 and the applicant became an unlawful non-citizen until he lodged this application in August 2015 and was granted an associated bridging visa.
The applicant did not attend the interview with the delegate. A copy of the delegate’s decision was attached to the application for review. The delegate found the applicant’s claims not to be credible or genuine.
The applicant told the Tribunal that he came to Australia through an agent found by his aunt in a newspaper as it was a good place to make some quick money. He borrowed money from his friends and he is still paying them back. He had no difficulties getting a passport or a visa to travel to Australia. His aunt found the agent for him as she knew he was looking to leave the country to go somewhere to make some quick money. He told the Tribunal that he has not made quick money. He was going to use the money to pay off his debts.
The Tribunal raised with the applicant that he had not declared any work in [Country 1] or that he had lived anywhere else other than at his family home. He responded that the Tribunal had only asked where he lived in Malaysia. He also told the Tribunal that it had only asked about his previous work in Malaysia and Australia. He told the Tribunal that it had not asked about [Country 1]. The Tribunal notes the applicant did not provide any details of any past employment or residential addresses in [Country 1] in his application form despite the questions clearly indicating to list ALL employment and residential addresses both inside and outside Australia. The only reference to [Country 1] in his application form is reference to visiting [Country 1] and [Country 2].
The applicant told the Tribunal that he worked in [Country 1] in a [business] and used his savings from working as well as borrowed money to purchase a [similar business] in a small village not far from where he lived. The applicant initially told the Tribunal that the owner was a friend of his [Relative A]. The owner was going somewhere and wanted to sell, his [Relative A] knew the person as it was a friend. He later indicated that his [Relative A] did not know this person well as he only knew him through other friends. When the Tribunal referred to his earlier evidence that he claimed the owner of the shop was his [Relative A’s] friend and he introduced them, the applicant responded that it was only an acquaintance. He purchased the [business] and it was transferred into his name. Shortly after, people came looking for their money. The previous owner had used the shop as collateral to borrow money and these people wanted their money back. The applicant told the Tribunal that they came after him as the shop was now in his name. The previous owner disappeared. The applicant told the Tribunal that he did not want to pay this money so had to run away.
The applicant told the Tribunal he did not know the people the previous owner owes the money to. All he knows is that the previous owner of the shop used the shop to borrow money, those people came to the shop looking for their money and because he is the new owner of the shop, they want the money from him. He could not pay the money so they threatened him and he had to run.
When asked for details about when he bought the shop, the applicant could not recall. All he recalled under questioning was when he returned from [Country 1], he bought the shop. Under further questioning he claimed he went to [Country 1] for work when he was [age] years of age, worked in [Country 1] for about [number] years before returning to Malaysia when he bought the shop about 3 months later. He fixed up the shop and opened about 2 months later when the people to whom the previous owner owed money came looking for their money. The applicant claimed they showed him the change of ownership form completed by the previous owner. All he knows is that the previous owner used the shop to borrow money and because of the change of name of ownership, they came looking for him, they asked for their money back and as he could not pay, they threatened him so he had to run. Under questioning the applicant stated they came within a month after he opened, then he came again then not long after he telephoned when he was about to run. The shop was only opened for about 2 months.
The Tribunal asked the applicant if he told these people that he had bought the shop from the previous owner and that it is the previous owner for whom they need to be looking to recover their money. The applicant responded that he signed for the shop and the person wanted him to pay. The Tribunal asked the applicant what he did with the shop when he fled and was told he closed the shop. The Tribunal put to the applicant he could have given the shop to those people owed money by the previous owner or sold the shop to raise funds. The applicant responded that they just wanted money and the previous owner borrowed cash so could not have sold it.
The Tribunal put to the applicant his statement that the creditors have constantly harassed his parents and was told that before he ran he was told that if he didn’t pay and if he reported it to the police, they will harass his family. The Tribunal put to him that he stated they have not hassled his parents to which the applicant responded that maybe his parents haven’t told him. The Tribunal asked if they have followed up looking for him and was told no they have not followed up because he ran. He told the Tribunal they cannot find him because he is in Australia.
The Tribunal asked the applicant why he did not go to the police. He responded he does not trust the police as they are corrupt. He also told the Tribunal they threatened his family if he if he went to the police.
The Tribunal put to the applicant country information from the latest DFAT report that indicates that the police in Malaysia are effective despite allegations of their corruption. The government had put into place systems for reporting and dealing with corruption, but overall the police and judicial system are effective. The applicant responded that he does not trust the police.
The Tribunal also put to the applicant country information that money lending is illegal in Malaysia.
The Tribunal indicated to the applicant that he could relocate elsewhere in Malaysia where the person seeking repayment of funds lent to the [business’s] previous owner could not find him. The applicant claims that the creditors and their associates have connections all over Malaysia and he would only be able to move on a temporary basis. The applicant told the Tribunal that he cannot relocate to another area as he is not familiar with the other areas. The Tribunal put to him he travelled to Australia where it is a different culture and language and an area with which he is not familiar but he managed to find accommodation and employment and survive and adapted. The Tribunal put to the applicant he worked in Malaysia, [Country 1] and Australia. The applicant responded that it is not hard to find work but it is hard to earn good money and save.
The applicant responded that he also owes money to the people who assisted him to travel to Australia and his family cannot assist him. He also told the Tribunal that a Malay person helped him to come here and his aunt told him it was a good place.
Country of nationality
The applicant claims to be a citizen of Malaysia and provided copies 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 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.)
When asked by the Tribunal at the beginning of the hearing whether he was aware of the contents of his application for protection, the applicant responded that his lawyer assisted him, he does not know the contents, he just told the lawyer his story. The Tribunal put to him that he swore to the truth and accuracy of the contents of the form but now he was claiming that he did not know the contents and the applicant did not respond. The Tribunal asked the applicant why he did not attend an interview with the delegate. He responded that there was none then responded that he got a call from a Chinese speaking person who told him to turn up today and his Chinese is not that good.
The Tribunal did not consider the applicant a credible witness. The Tribunal found his evidence vague, rehearsed and general in nature. The Tribunal found that while he was consistent with his core claim that he bought a shop which the previous owner had used as collateral to borrow money against and the creditor came seeking repayment from him, he was unable to provide further information as to who the creditor was and from whom he bought the shop, initially responding it was his [Relative A’s] friend to eventually it was an acquaintance of his [Relative A]. His evidence as to the actions of the claimed creditor was not consistent. The Tribunal also found that he consistently responded to questions with all he knows it that the previous owner borrowed against the shop and the creditor wanted repayment from him.
His oral evidence was not consistent with that provided in his application for protection, with him omitting details in his application relating to his previous employment, including the period he worked in [Country 1], as well as not providing details of all his residential addresses, particularly his residential address in Sydney. The Tribunal notes the application form requests the applicant list all past employment as well as all past residential addresses from any country in which he lived. When the Tribunal commented that when asked for details of his past employment and past residential addresses he made no mention of living and working in [Country 1], the applicant responded that the Tribunal had only asked about Malaysia.
The applicant claimed in his application for protection that the creditor and his associates adopted violent means for the purpose of collecting the debt and their actions significantly damaged the business income and he had to close the shop. However his oral evidence was that the creditor only came to the shop twice and telephoned a third time looking for his money within a 2 month period. The applicant made no claim at hearing that the creditor was violent, just that he threatened him. He also claimed at hearing that the shop was closed because he ran not because it was losing money.

Of particular concern to the Tribunal is the substantial delay in applying for Australia’s protection obligations in August 2015 despite arriving in Australia in June 2012. The Tribunal also notes that it is 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 applicant indicated that he was looking for lawyers and had no money. A friend introduced him to a lawyer who said they could help. He claimed he was going to apply for a student visa but they were all scammed by this person. The Tribunal put to the applicant that he had earlier told it that he was not good at school and left after five years so why would he apply for a student visa. The applicant responded that he wanted to stay here and work and was scammed by this person so he had to stay in Australia without a visa. The Tribunal asked why he didn’t go to the department to explain his fear of returning or seek to rectify his visa status at an earlier stage and was told he thought they would arrest him.
The Tribunal considers the applicant’s evidence as to his delay in seeking protection unconvincing. The Tribunal finds the applicant’s delay in seeking protection seriously undermines his claim to fear harm if he returns to Malaysia.
FINDINGS AND REASONS
As the Tribunal does not consider the applicant a credible witness, it does not accept that the applicant bought a business that the previous owner had used as collateral to borrow against and the creditor sought repayment from him. The applicant was vague when asked to provide further details about the creditor seeking repayment from him. He also provided inconsistent information as to the actions of the creditor in seeking payment from him. The applicant’s oral evidence was that within 2 months of opening, the creditor has visited him twice and telephoned him once at the time the applicant was already planning to flee. His oral evidence was that the creditor had threatened him but not harmed him in any way, yet his written claims are that the creditor caused him physical harm. His oral evidence as to the harassment of his parents by the creditors was not consistent with his written claims and when this was put to him he simply stated that his parents may not have told him. His oral evidence as to why he closed his shop was also not consistent with his written evidence.
The Tribunal notes that despite stating that the creditor has harassed his parents seeking payment, when asked at hearing the applicant responded that the creditor had not followed up stating that it was because he had fled to Australia. The Tribunal considers that if the creditor was determined to make the applicant repay the money borrowed by the previous owner, they would have followed up with his family seeking repayment. The Tribunal also considers that as the creditor claimed to be the owner of the shop, as the previous owner used it as collateral to borrow against, the creditor would simply have taken over the shop.
After considering all the available evidence and based on its findings that the applicant is not a credible witness, the Tribunal does not accept that the creditor has sought repayment of funds from the applicant, has threatened him or threatened his family or harmed the applicant in any way. The Tribunal finds that there is not a real chance the applicant faces serious harm from the creditor or his associates or any other person for the reason claimed if he returns to Malaysia.
The Tribunal notes that the applicant claims that he has yet to repay the money he borrowed to travel to Australia. It notes that he has been unable to make the “quick money” to repay his debts despite being in Australia for the past 4 years and working for periods during that time.
The Tribunal has considered whether the applicant would be able to obtain the protection of the state should any person seek repayment of any funds provided to him through threatening and violent means should he return to Malaysia.
As discussed with the applicant, DFAT reports that credible and local and international sources indicate that the police are a professional and effective force. DFAT acknowledge that the police responses depend on their levels of training or whether they are engaged in corruption themselves. They do acknowledge that corruption in the police force is a concern and there has been some measures put in place to look at and investigate the issue of police integrity and accountability. Some police have been prosecuted and found to be guilty of corruption but overall, DFAT assesses that there is an effective police force who generally do investigate crimes. Essentially DFAT acknowledges that there are problems, but the Malaysian authorities have been attempting to address the issue of loan sharks and criminal activity and the problems within the police, but generally they are considered to be effective.
The Tribunal gives weight to DFAT’s assessment of the Malaysian police as generally considered to be professional and effective. While noting the applicant claims that he does not trust the police, did not seek their assistance because they claimed to have threatened his family if he went to the police and that he also claimed the police are corrupt, the Tribunal notes the advice from DFAT that this is recognised by the authorities and measures have been put in place to address this. The Tribunal has also considered the country information in relation to the Malaysian authorities’ actions to combat the problem of gang members and their practices, including money lending, which indicates that the government has taken this issue seriously and has committed extensive resources to do so.[2] This in the Tribunal’s view demonstrates that effective protection measures are available, namely that protection against persecution could be provided to the applicant by the Malaysian State and that the Malaysian State is willing and able to offer such protection. The Tribunal also notes that the Malaysian State is taken to be able to offer protection against persecution where the person can access the protection, the protection is durable, and the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
[2] ‘Police make 5,505 arrests in three weeks in crackdown on gangs, organised crime’ 2013, Malaysian Insider, 9 September CXC28129414714; Cops deal crime a crippling blow since Ops Cantas Khas launch’ 2013, Star Online, 23 September, CXC28129414715; 79,414 individuals detained throughout 'Ops Cantas Khas’” 2014, Bernama (Malaysian National News Agency), 10 June CX1B9ECAB11435; ‘Police crackdown on gangsters still in full swing, IGP says’ 2014, Malay Mail on line, 9 October, CX1B9ECAB11433.
Overall, on the available evidence, the Tribunal is not satisfied that the police would fail to act or would fail to afford him protection from his creditors or their associates or anyone else associated with them if requested to do so. On the basis of the available evidence, the Tribunal is not satisfied that effective state protection is not available to the applicant and the Tribunal finds there is not a real chance of serious harm from his creditors or their associates or anyone else associated with them.
The Tribunal is not satisfied that the applicant would be unable to avail himself of effective state protection in Malaysia for any reason.
On the evidence before it, the Tribunal does not accept that there is any basis for the applicant to fear any harm in Malaysia. The Tribunal does not accept there is a real chance the applicant will face serious harm, or harm of any kind, for the reasons he has claimed, either now or in the reasonably foreseeable future, if he returns to Malaysia.
The Tribunal does not accept on the evidence before it, that the applicant has a well-founded fear of persecution as required by s.5J of the Act and therefore finds that he is not a refugee within the meaning of s.5H and does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal is required to consider whether they may nevertheless meet the criteria for the grant of a protection visa pursuant to the complementary protection legislation referred to above.
As noted above, on the evidence before it and as the Tribunal did not find the applicant a credible witness, the Tribunal is not satisfied the applicant has been threatened or harmed or his family have been threatened or harmed because he failed to pay the creditor. For the reasons as discussed above, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from the creditor, his associates or anyone else associated with the creditor if he returns to Malaysia.
Under s.36(2B)(b), there is taken not to be a real risk of significant harm if 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’. This requires consideration as to whether the protection available would remove the real risk of significant harm: MIAC v MZYYL (2012) 207 FCR 211.
The Tribunal has found earlier that state protection would be available to the applicant.
The applicant indicated he did not seek the assistance of the police because he does not trust them and they are corrupt.
The Tribunal is satisfied that the country information referred to earlier indicates that the Malaysian police are generally considered to be professional and effective. The Tribunal’s view is that effective protection measures are available and the applicant is able to obtain protection such that there would not be a real risk that he will suffer significant harm.
Having considered all of the evidence, 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 he will suffer significant harm. Therefore the applicant does not satisfy the criteria under s.36(2)(aa).
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 Goodier
Senior 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 4379

9 September 2016

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