1515356 (Refugee)

1515356 (Refugee) [2016] AATA 3391 (1 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515356
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rachel Westaway
DATE:1 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 March 2016 at 4:15pm
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] July 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] July 2015. The delegate refused to grant the visa as he did not accept that the applicant could not receive effective protection from the Royal Malaysian police against threats from criminal gangs. Furthermore, the delegate did not accept that there was a real risk that the applicant would suffer significant harm.
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.
Country of Reference
The Tribunal accepts on the evidence before it, namely a copy of the applicant’s passport, that the applicant is a national of Malaysia and it has assessed his claims against Malaysia as his country of Nationality for the purposes of the Convention and as his returning country for the purposes of s, 36(2)(aa).
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant’s claims. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant arrived in Australia [in] March 2010 and applied for a protection visa [in] July 2015. The applicant made the following claims in his protection visa application:
·He claims he ran a [business] in Malaysia and had many customers. He stated that one Malay customer owed him money. He stated that that he arranged to send a legal letter to the customer and the customer arranged to have the applicant beaten up by gangsters and he was threatened with death and that his business and home would be destroyed.
·The applicant claims he sold his business and left Malaysia
·The applicant claims he did not report this to the police because the gangsters are powerful and have political backing. He stated the police cannot protect him 24 hours a day.
·He claims that if he was to relocate, the gangsters would find him.
- He fears he will be killed if he returns to Malaysia
The applicant appeared before the Tribunal on 23 February 2016 to provide further details about his claims. The applicant’s brother was also in attendance and was a witness. His name is [name].
The applicant confirmed he has been in Australia for five years. He arrived in Australia on a [temporary] visa.
The applicant struggled to answer the question why he took so long to apply for a protection visa. Initially he stated he did not have a tax return. He then said he had business in Malaysia. He claims he did not apply for a protection visa because he was doing business in Malaysia. He claims he did not know about protection visas.
He was asked how he knew about [temporary] visa and yet didn’t know about protection. He claims he did not know about any of these visas until he saw it on the news.
The Tribunal put to the applicant that such a long delay in applying for a protection visa can detracts from the credibility of his claims. He stated that his brother didn’t tell him.
He came to Australia because he did business in Malaysia and his customers owed money, they had a quarrel and so he ran away.
The applicant stated he has an ex-wife in Malaysia and he doesn’t see his children. He claims that one of his children was born in [year] and he does not recall when the other was born. [Details of children deleted].
His mother is alive and his father has passed away. He claims there are [siblings]. He is the eldest child. [Two siblings] are in Australia. The applicant stated that one is an Australian citizen and the other is on a [temporary] visa.
He confirmed that his parents retired. He said that they didn’t work very much and only did casual work. He lived in a [village] and they worked in [an] industry.
The applicant’s level of education is year [grade] primary school.
The applicant stated that his business in Malaysia was [description]. He sold to wholesale customers. He claims he owned the business by himself.
He claims he owned the business for over ten years. When asked what the name of the business was he said it was named after himself.
The applicant was asked what his annual turnover was for the business. He claims to have lost his paperwork and can’t recall. He stated not much.
He claims he let his business go and didn’t sell it and ran away to Australia.
The applicant stated that he can’t recall the address of his business and he has no paperwork relating to it.
Then the applicant looked at his wallet and stated he didn’t write it down and he didn’t expect to be asked.
He claims he managed the business himself. He had no employees. The applicant then stated that he had a foreigner who [was] working for him.
The applicant stated he left his business because he had problems. He said his customers owed money. They owed him RM[amount]. He said he lost all paperwork and cannot recall the name of the customers. The applicant was asked if he recalled what type of customer – such as [business type]. He stated it was a street stall and no registered shop or business.
He claims he asked for the money back and they didn’t pay. The Tribunal asked about the clients that owed the applicant money. He claims it was a few of them and some were nice and some were not. He stated that there were three or four out of ten customers were not nice and did not pay their bill. The applicant then stated he had twenty customers.
The Tribunal asked the applicant what his repayment terms were. He said he didn’t have anything like this.
The Tribunal stated that this appears odd – a wholesale business which makes [products] giving away their items and only asking for payment when they need a cash flow.
The applicant stated that he provides goods beforehand and asks them for money once they are sold.
The Tribunal stated that the shelf life is quite short and it seems implausible that the applicant would run a business and allow credit build up in this manner.
He said he left Malaysia because the company didn’t make money so he stopped and they sent someone to make trouble, hit him and they threatened to burn the shop down. He said it was not the shop keepers but they arranged for someone else to do it. He explained that it was a gang and men and different ones all of the time.
The applicant confirmed that these events occurred in 2003.
The applicant claims he ended up in a private hospital after being hit however he stated he has no medical records. He said they hit him on the leg and it caused pain in his leg. He claims to be in hospital only for a visit.
He said he has no idea who it was – it was different groups of people. He claims he was hit three times. When the applicant asked for money the customers would send people to hurt and intimidate him.
This would be every two months and they would argue.
The Tribunal asked the applicant if he went to the police and he stated that he didn’t report it to the police because they can’t be around 24 hours a day and the “bad people” also threatened that they would hurt him and burn the shop down if he reported it to police.
Country Information put to the applicant which outlined that the Royal Malaysian Police is generally considered a reputable police force and has had many recent examples of success is stopping gang related crime and violence. The Tribunal put to the applicant that it is unusual that someone who was facing such threats and being physically harmed and was prepared to leave his business because he was so afraid would not report the issues to the police. He stated that he didn’t report the incidents and threats because he was threatened and didn’t dare report.
The applicant arrived in 2010 and he left his business in 2003 so he was asked how he remained safe for so long in Malaysia.
He said he went to Australia in 2006 once. He stated that he stayed in Australia 2-3 years and then returned to Malaysia for about 3 years.
The Tribunal asked the applicant again why he was able to remain safe in Malaysia for so long. He said he tried to get a visa and he finally got one after three attempts. He said he didn’t work and he moved around. He stated he lived in his [brother]’s place and his place remained empty. The applicant provided an ID card that showed his [address].
The Tribunal asked the applicant if anyone tried to attack him there and he said they could find him anywhere as Malaysia is small but nothing happened to him there as they could not do much. He said his place “is another story”.
The applicant was asked if there was anything else he wished to tell the Tribunal and he stated that he has his property details on his divorce certificate but nothing else. He said that he reported it to the police over ten years ago but he lost the record.
The Tribunal put to the applicant an inconsistency that he stated he didn’t report it to the police and then he said he did. He claims it was another incident, a car crash.
He stated that the other incident he doesn’t know much about. The applicant appeared evasive and stated he is not sure.
The applicant was asked who the people were that he claims attacked him at different times. He said it was a gang and different groups of people. He stated that he never recognised anyone.
The Tribunal took evidence from the applicant’s [brother].
The witness stated he has lived in Australia for [number] years.
He confirmed his [siblings] are in Australia.
He stated he understands his brother has been to Australia before but on this occasion he overstayed his visa but he didn’t know why other than something happened in Malaysia and he ran away. He claims he has been living somewhere else.
He confirmed that he knew his brother owned a [business] and that he was hit by someone because he asked for money. He claims he only heard from his mother as he doesn’t go back to Malaysia very often.
He stated that he owns a [business] in Australia but his brother does not works in it.
The witness concurred that the applicant was threatened and harmed because he asked for money for his business and he also confirmed that he didn’t know about protection visas and that his friend told him about it.
The witness was asked if he fears for his brother. He said “ maybe yes, maybe no”. He claims he doesn’t know. He did not want to say anything else on behalf of his brother.
The Tribunal put the following concerns to the applicant regarding the credibility of his claims. It reiterated the length of time the applicant was illegal in Australia and the length of time he remaining in Australia before he applied for protection in spite of the fact that the events he claims he fears occurred in 2003. The Tribunal put to the applicant that he has remained safe in Malaysia for 7 years before he came to Australia. The Tribunal also put to the applicant that he never reported the claimed incidents to the police which adds to the Tribunals concerns regarding the credibility of his claims and that the Tribunal would expect that if someone was threatened or harmed in any way that they would seek assistance from the police and report the ongoing threats. Furthermore the Tribunal put to the applicant that it concerns the Tribunal that he could not recall the address of his business which is the subject of the claims, nor can he recall the names of his clients.
The applicant reiterated that he could not live in his house and confirmed that he cannot recall the names of the clients.
He was asked if he wanted to state anything else and he said no.
Credibility
The Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’.
The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.
However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, 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. In addition, The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. 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.
If the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.
COUNTRY INFORMATION
In making its decision, the Tribunal has considered the DFAT Malaysia Country Information Report issued on 3 December 2014 and other sources. There is conflicting information in relation to the competence, ability and willingness of the Royal Malaysian Police (RMP) to eradicate organised crime.
The RMP appears to be reasonably organised[1] and the police have been active in cracking down on gang activity. In August 2013 the Royal Malaysian Police Force launched Ops Cantas Khas against criminal gangs and crime syndicates. In September 2013, Gambling and Secret Societies Division (D7) principal assistant director Senior Assistant Commissioner Datuk Abdul Jalil Hassan told the Malaysian Insider that the police had arrested 5,505 people for various crimes, including armed robbery, theft, vehicle theft, extortion and secret society activity.
Abdul Jalil, adding that the police also seized other weapons, including 21 swords, 70 knives, six axes, 11 brass knuckles and a stun gun. Ops Cantas Khas was launched following a spate of shootings in the country, believed to be related to turf war among gangs and linked to illegal activities. Among those shot dead were gang members or leaders, with the latest incident involving the shooting of a former air force man, whom the police claimed was the head of Geng 36 in Batu Gajah, Perak[2].
[1] US Department of State 2012, Country Report on Human Rights Practices 2011 – Malaysia, 24 May, Section 1; Royal Malaysian Police n.d., Structure of the Royal Malaysian Police < Accessed 3 September 2012; Institute for the Study of Violent Groups n.d., Kumpulan Mujahideen Malaysia, University of New Haven < Accessed 30 August 2012; and Centre for Public Policy Studies Malaysia 2008, Policy Factsheet: Police, 26 August < Police make 5,505 arrests in three weeks in crackdown on gangs, organised crime’ 2013, Malaysian Insider, 9 September < <CXC28129414714>

The 2014 DFAT Country Information Report on Malaysia states:
Police Integrity and Accountability
5.5 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged corruption within the RMP and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers, including suspension, dismissal or demotion.
Another article from December 2013 indicates that more than a million people had been screened by the police for violent crimes since Ops Cantas Khas was launched on 17 August 2013 ‘in phases to cripple the underworld following a spate of shootings in the country, which is believed to be related to turf war among gangs and linked to illegal activities such as drug trafficking and extortion’. The operation was reported to be open-ended, with no deadline.[3]
[3] Lee, Y M 2013, ‘Some 36,000 suspected criminals have been arrested, says minister’, The Star Online, 10 December < Accessed 15 July 2014
Despite events such as Ops Cantas Khas, public confidence in the RMP in recent years has been low, which is what led the authorities to launch Ops Cantas Khas[4]. It is not clear whether such high profile operations would lead to long lasting changes or whether they would remain one-off demonstrations of force.
[4] Crime is rising, police are corrupt 7 inefficient: Now who ids to blame ? by Christopher Fernandez Malaysia Chronicle 15 July 2012
Police reform, including the establishment of an independent police complaints and misconduct commission, has been inhibited by resistance at the highest levels of the police force.[5] According to a report by Freedom House, ‘Malaysia’s police effectiveness has been compromised by low salaries and endemic corruption. The police allegedly provide protection for drug trafficking, prostitution, and loan sharking’.[6]
[5] US Department of State 2010, Country Report on Human Rights Practices 2009 – Malaysia¸ 11 March, Section 1; Freedom House, Countries at the Crossroads 2012 - Malaysia, 20 September 2012, and El Sen, T 2012, ‘Misconduct due to ignoring inquiries’, Free Malaysia Today, 4 May < Accessed 3 September 2012.
[6] Freedom House, Countries at the Crossroads 2012 - Malaysia, 20 September 2012, AND REASONS
The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, and that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
The Tribunal finds that the applicant is not a credible witness and as such his claims are not credible. The applicant’s claims were vague, inconsistent and lacked detail. For example, he was unable to recall the address of his business which was the starting point for his claims of people not paying and then arranging for gangs of men to threaten and beat him. He was also unable to name the clients who he said owed him money. He initially claimed one client owed him money and then he stated that several clients owed him money. The applicant was unable provide any details regarding his credit terms for his business or be able to succinctly and convincingly explain how his credit terms worked. Given these findings, the Tribunal does not accept that the applicant owned a [business] which had customers with outstanding debts.
Furthermore, the applicant had every opportunity to report the claimed harassment to the police but never did. Whilst the Tribunal accepts that the applicant and Malaysians generally may have mixed faith in the RMP, the Tribunal has considered the country information and is of the view that in general the RMP are effective and will take such matters seriously. The Tribunal has also considered the length of time the applicant remained in Malaysia after selling his business and the length of time the applicant was illegal in Australia before he applied for his protection visa. The Tribunal considers that if the applicant was as scared as he claims and the events that he claim actually did occur, then the applicant would have reported it to the police and upon arriving in Australia seek information on his protection options as soon as possible. Whilst the Tribunal notes that the applicant stated he did not know a protection visa existed and these claims are also repeated by the applicant’s brother, the Tribunal does not accept this. The applicant stated he has previously been to Australia on a visitor visa and so he was aware of the need for a visa, legal status in a country and the ability to seek migration advice. The Tribunal does not accept that the applicant ran a [business] in Malaysia and had many customers or that some of his customers owed him money.
Given the findings above, the Tribunal does not accept that the applicant sent a letter to his customers and that he was threatened with death and beaten up by gangsters and told his business and home would be destroyed. The Tribunal does not accept that the applicant’s leg was hurt and that he went to hospital because of these claimed events. The Tribunal does not accept that gangsters ever targeted the applicant or that he sold his business and relocated.
Based on the evidence and findings above, the Tribunal finds that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm if he returns to Malaysia.
CONCLUDING PARAGRAPHS
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.
Rachel Westaway
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 3391

1 March 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction