1516006 (Refugee)

1516006 (Refugee) [2016] AATA 4059 (11 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516006
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Stuart Webb
DATE:11 July 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 July 2016 at 11:54am
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] June 2015. The applicant appeared before the Tribunal to give evidence on 30 June 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided the following statement with his application.
I left Malaysia because of the harassment I suffered from Malaysia police. They threatened me and hurt me because of my report of a corrupted government official. I found a very good job in [Company 1] as [occupation]. I always wanted to find a [senior] level [occupation]. That was a dream came true. The [senior] level job involves a lot of socialization with local government officials. After I got to know them, I realized how corrupted they are. The small companies like ours have to pay money to pass all kinds of tests.
In several dinners with police officials, they asked me to bring my wife together. I didn't think too much of their request. I took my wife with me for several times. in one dinner in 2006, [a certain] official of our local police station seemed very interested in my wife and personal life. I felt uncomfortable and I want to leave with my wife. Then, several police showed up and took me away. I can guess what will happen to my wife. I shouted for help. But I was detained in jail for 3 days. After I was released, my company fired me. My wife was in shocked. That police official rapped her. She blamed me for taking her to dinner with them. My boss said it's not the first time this happened. My wife divorced with me.
I found another job in the beginning of next year. Then I wrote letter to our local government to report that police station [certain] officer.
During those 7 years after I wrote the letter, police started to come to my home and take my valuable things. They beat me for countless times. I suffered harassment and humiliations. I wanted to leave Malaysia because government officers protect each other by covering their crimes. I left in September 2014.
The applicant stated in his application that he had lived in the same address his entire life until coming to Australia [in] September 2014. He was not in contact with family in Malaysia. His passport was issued [in] 2014. He applied for a protection visa [in] June 2015. He had various employers, and had most recently been employed as [occupation] for 7 years in his home area in Malaysia.
Findings and reasons
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 before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
The applicant commenced the hearing by seeking to recite his written submission. After the applicant had recited the first paragraph exactly as written, the Tribunal noted that the applicant had appeared to have memorised his statement, and asked why. The applicant stated he was not conversant in English. The Tribunal noted that the written material had been read, and was interested in the applicant explaining his claims, noting that there was an interpreter present to assist. The Tribunal accordingly asked the applicant questions about his claims.
On being asked questions about his claims directly, the applicant’s evidence, provided in the Malay language, was vague and limited. The applicant struggled to provide coherent evidence regarding significant elements of his claims, causing the Tribunal to express its concern regarding the genuineness of the applicant’s claims.
The applicant stated that he had had worked at [company name] then [Company 1] as [occupation]. The applicant was able to provide information about the work of [Company 1]. The Tribunal noted information from the [Company 1] website that it was based in Selangor, not in Kedah as stated by the applicant in his application[1]. The applicant stated the company was based in Selangor and that was where he lived. The Tribunal noted that the applicant’s evidence as written in his application stated otherwise, that he had lived in [Kedah] from [year] to 2014, and that he had worked in Kedah all his life[2]. The applicant stated he had lived in [City 1], Selangor until moving to Kedah in early 2007. The applicant stated that he had made a mistake in his application. The Tribunal did note that his education details did mention [name] College.[3] The applicant could not explain how his statement was so different from the evidence he was now presenting.
[1] [Information deleted].
[2] Form 866C Qs 82, 85, DIBP Folios 21, 23
[3] Form 866C
The applicant had made a claim about being concerned with corruption. At the hearing, the Tribunal asked him about this claim. The applicant’s evidence in this respect was vague and very limited, differing between claiming about corruption at an official level and corruption at his workplace. The applicant was far from clear in his evidence as to who he had complained about.
The applicant stated he had a [certain] responsibility [at] [Company 1]. He stated he managed around [number] [employees]. The applicant stated that the employees were from [country] and [country]. The applicant stated he had a good relationship with his own manager.
The applicant then said these workers made his job difficult. The applicant could not explain how they made his work difficult, he said his mental mind was not normal, there was a lot of interference, later in the hearing he said they made lots of mistakes. The applicant stated that the employees did not meet the requirement for work.
The Tribunal asked who the applicant complained to about his employees. The applicant initially stated that it was the local government, an officer at the department of receiving complaints. The applicant was unable to explain where this department was located. The Tribunal asked what corruption was taking place. Eventually the Tribunal was able to determine that the work permits were not correct for these employees.
The applicant then stated that he went to the local police to report this issue. The Tribunal asked why the applicant had been to the police, when it appeared that it was an immigration or employment related issue. The applicant stated that the local police did nothing. The Tribunal reiterated its concern that this was not a police matter. The applicant stated that this was where he had made the complaint. The Tribunal noted that this was not what he had said before, that he had made the complaint to the local government. The applicant stated that this was at the police. The Tribunal expressed its concern about this change of claim.
The Tribunal asked the applicant if he had taken up this issue with his employer directly, given his concerns about the mistakes being made and the good relationship he claimed to have with his manager, that he was very close to his manager. The applicant was very vague in this regard. The Tribunal expressed its concern that if the applicant had issues with his workforce he would not take this up with his manager, given the closeness. The applicant stated he did not report the corruption to him, he was the only person who knows about this. The Tribunal noted that it was very strange that the applicant had not spoken to his close friend and manager about his concerns at the company. Later in the hearing the applicant stated that his manager was corrupt. The Tribunal expressed its concern that the applicant had not mentioned this earlier, or put this in his written application. The applicant had instead spoken about his close relationship with this person. The applicant could not answer this question of the Tribunal.
The Tribunal has considered the applicant’s claims that he had made reports regarding corruption in his company. The applicant’s evidence was vague and inconsistent. He could not explain what the corruption was, beyond employing staff who may have not had permission to work. He could not explain why he had not taken this up at his workplace. He raised the issue of corruption of his manager late in the hearing, having not mentioned it previously when discussing the corruption at the company. He could not explain who he had complained to, changing between the local government and the police, and unable to explain why he had approached the police to report what was happening at the company.
Given the vague and inconsistent evidence of the applicant regarding the issues at his employment, who he had issues with, and who he had made the complaint to, the Tribunal does not accept the applicant’s claim that he reported corruption at his company to any person.
Further, the claims of the applicant as written were about corruption at the local official level. This was not the claim made at the hearing, as he discussed issues about his employees. The applicant initially claimed he went to the local government to report the corruption, later changed to the local police. The Tribunal considers that the applicant never reported on local official corruption.
The Tribunal finds that the applicant has concocted his claim that he complained about corruption in Malaysia. The Tribunal finds that the applicant does not have real chance of serious harm or a real risk of significant harm for this reason.
The second element of the applicant’s claims was about mistreatment of him and his wife by the police in [City 1], Malaysia. The applicant claims that he was detained for three days after a dinner, that his wife was raped by the local police [officer], he lost his job, and soon left for Kedah. The applicant at the hearing stated he had written a letter of complaint, and that subsequently he had problems from [City 1] police in Kedah.
The Tribunal asked the applicant about his claims. The applicant stated he was one of [number] people at an annual dinner in [2006], with the local police [officer], his wife, and his supervisor, amongst others. The applicant could not explain what the annual dinner or what occurred at the event. The applicant stated that he was invited because he was very close to his manager. The applicant stated that [a police officer] had an interest in his wife. The applicant stated he knew this because the policeman was speaking to his wife, who was seated next to him. The Tribunal noted that it was not unusual that the policeman spoke to the person sitting next to him at a dinner.
The applicant stated that at the dinner a lower level policeman came in and took him away. He later altered this to [number] people. The Tribunal asked if any explanation was given. The applicant said nothing was said. The Tribunal asked if his manager, who he was close to said anything. The applicant said he did nothing.
The Tribunal asked where the applicant was taken. The applicant was vague in his answer, ultimately stating it was [City 1] police station. The applicant stated he was held for 3 days then released. He was not charged with any offences. He was not harmed while in detention. He was just released.
The applicant stated that when he got out he found his work had been terminated. The applicant could not explain why he had been sacked. He stated he went to his manager who told him he had been terminated. The applicant did not speak to human resources or get any explanation. The applicant stated it was maybe because he was apprehended. The Tribunal expressed its significant concern that the applicant was unaware as to why he was sacked from his employment and made no effort to find out.
The applicant stated that when he got out of detention his wife left him. The applicant stated that she had been raped after he was taken away by the police [officer]. The applicant had no information as to how or where or why this occurred, or whether his wife needed medical treatment or had made any complaint. The applicant stated that his wife blamed him for taking him to the dinner, had left him immediately and asked for a divorce.
The Tribunal expressed a number of concerns with this claim of the applicant. The Tribunal questioned how the applicant would be held responsible for what happened, given his claim to have been taken away by the police prior to this occurring. The applicant had very little information about his wife, except that she had left him and gone back to his family. The Tribunal was concerned about the evidence regarding his wife.
The Tribunal asked what the applicant had done about his and his wife’s mistreatment. The applicant stated he had not made a complaint, a statement that the Tribunal had the applicant confirmed. The applicant then stated that he had made a complaint, after he got his job in Kedah. The Tribunal asked who he had complained to. The applicant stated that he had complained to the local government in Selangor. The applicant then stated that it was a police station in Kuala Lumpur called ‘[name]’, a larger police station. The Tribunal asked why the applicant would write this and not make a complaint in person. The applicant stated he dared not show himself as he had written a letter of complaint about police. Nothing had come of the complaint.

The Tribunal noted that the applicant had claimed this happened in 2006. He had lived in Kedah since then, until coming to Australia in 2014. The applicant stated he had ongoing problems with the police. The applicant claimed that the [City 1] police would come and harass him. The applicant could not explain how the [City 1] police would know he was in Kedah, over [number]km from [City 1]. The applicant could not explain why the [City 1] police would seek to cause him ongoing difficulty so far from [City 1] and so long after the claimed difficulties. Asked why the applicant had decided to leave Malaysia in September 2014 he stated he was confident with the protection of the Malaysian authorities. The Tribunal asked if the applicant had ever complained to the Kedah police about his difficulties. The applicant said he had not. The Tribunal identified that there were independent organisations that were established to deal with complaints about officials. The Tribunal noted that Malaysia had established the organisation Surhanjaya Hak Asasi Manusia Malaysia (SUHAKAM)[4], the Human Rights Commission of Malaysia, which has the power to investigate infringements of human rights. DFAT in its country report on Malaysia stated:
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.
5.6 There is no legal requirement for the state to investigate deaths in RMP custody. Investigations generally occurred at the request of the Attorney-General but were often instigated as a result of public pressure and were significantly delayed. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts (see –‘Detention Conditions—Deaths in Custody’, above).
5.7 The Inspector General of Police announced the establishment of an Integrity and Standard Compliance Department (ISCD) in July 2014 to enhance police integrity and image. The National Human Rights Commission (Suhakam) also receives complaints against the RMP and has conducted investigations into police behaviour. However, the Government is not required to formally consider Suhakam’s reports or recommendations.[5]
[4]
[5] DFAT Country Report – Malaysia, December 2014
The Tribunal noted that there were other groups established regarding reporting of corruption or police issues. The NGO Suara Rakyat Malaysia (SUARAM)[6] had been established to advocate for human rights in Malaysia, and provided another avenue for making complaints. The applicant confirmed he had not approached any groups to complain about his mistreatment. The Tribunal expressed its concern that he had not done so, given his claim of ongoing harassment from the [City 1] police.
[6]
The Tribunal asked why the applicant came to Australia in September 2014. The applicant stated he came here for protection. The Tribunal asked why the applicant did not apply for protection when he arrived, but waited 9 months after arrival to do so. The applicant stated that he wanted to get some advice, he did not know the procedure. The Tribunal noted that the applicant had not spoken to a migration agent, lawyer or even the Department to try to resolve his circumstances. It appeared that he had come to Australia to work in a more senior role that what he had been working in Kedah.
The Tribunal has considered the applicant’s evidence regarding this aspect of his claims. The Tribunal has significant concerns with respect to a number of elements of this claim. The applicant could not explain why the police [officer] was interested in the applicant’s wife, or how he arranged to have the applicant taken away and detained. The applicant could not explain why his close friend and manager made no complaint as the applicant was taken away from the dinner. The applicant’s evidence regarding what happened to his wife was vague and limited, he knew nothing of what happened to her or whether she required medical treatment, just that he was blamed for what happened, which the applicant found difficult given his claimed detention prior to any harm befalling his wife. The applicant’s evidence as to his detention and release after 3 days was limited, as was his explanation as to why he lost his job. The applicant found it difficult to explain why he was fired from his position, and the Tribunal expressed its concern as to the very vague and limited nature of the information of the applicant in this regard.
His claimed actions after leaving Selangor for Kedah were also questionable. The applicant stated he sent a letter of complaint, initially stating that it was sent to local government, then a bigger police station. However he never spoke to anyone about his complaint, nor did he ever follow up about the complaint. It would appear from the evidence of the applicant that nothing was done about the complaint. However the applicant stated that he faced 8 years of harassment from [City 1] police officers because he had made the complaint, despite it being a significant distance from where the applicant had previously lived. The applicant could not explain why the [City 1] police officers would seek to harm the applicant for so many years after the events that occurred in 2006, including the making of the alleged complaint. The Tribunal noted that the applicant had never made a complaint about the [City 1] police to officials in Kedah, despite living there 8 years, and noting the various agencies that were available for such complaints if he did not want to approach the police.
The applicant could not explain why he decided to leave in September 2014, nor why he did not seek protection when he arrived in Australia, stating he came here for protection but not applying for such protection until after he had been unlawful for 6 months and 9 months after he arrived. The Tribunal noted that it could take such delays into its consideration.
The Tribunal considers that the applicant’s evidence regarding his being detained for three days, his wife being raped, his losing his job, his lodging a complaint about police mistreatment, and ongoing issues with [City 1] police from 2007 to 2014 in the province of Kedah are contrived. The applicant’s evidence about these events are vague and limited, in each aspect the applicant was not able to answer a number of questions or provide detail regarding aspects of his situation that he should have been aware of. The situation with his wife, and the treatment from his employer, whom he had a supposedly close relationship, are two areas where his evidence was very limited. Further the applicant’s evidence regarding ongoing difficulties from an incident that was stated to have occurred in 2006 was concerning, the applicant’s evidence about his being a person of interest to [City 1] police for so long while residing [number]km away from that location implausible. The applicant said he never complained about this, nor moved away again.
The Tribunal noted at the outset that the applicant had memorised his claims in English, though he answered directed questions from the Tribunal in Malaysian, and had provided a number of inconsistent statements in his written application regarding his work and residence in Malaysia. The Tribunal considers that the applicant has lodged this application for protection with a contrived set of claims. He recalled elements of the contrived claims at the hearing, but was unable to provide details that would be expected if such claims were true or explain the time issues, from the supposed difficulty with the police in [City 1] in 2006 to his eventual departure from Malaysia in September 2014, and then not seeking protection in Australia for 9 months despite that being his stated reason for coming here.
Given the significant concerns with the evidence and actions of the applicant, the Tribunal finds that the applicant was not detained for three days in 2006 by the police, that his wife was not raped by the local police [officer] in [City 1], that he never lodged a complaint about such incidents, and that he did not receive any adverse treatment from [City 1] police from 2007 to 2014. The Tribunal finds that the applicant does not have real chance of serious harm or a real risk of significant harm for these reasons. The Tribunal finds that the applicant does not have a real chance of serious harm for these reasons on return to Malaysia. The Tribunal finds that the applicant has a well-founded fear of persecution for these reasons.
Further, based on the consideration of the claims and evidence as discussed above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm on return to Malaysia.
The Tribunal further finds that the divorce from his wife and loss of a job in 2006, as the applicant has stated occurred, are unrelated to any of the protection claims that the applicant has made.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Stuart Webb
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2016] AATA 4059

11 July 2016

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Immigration

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Statutory Interpretation

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