1516574 (Refugee)

1516574 (Refugee) [2016] AATA 3682 (4 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516574
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Sean Baker
DATE:4 April 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 April 2016 at 11:44am

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

[The applicant] is a citizen of Malaysia. He was born in [Selangor] and speaks Mandarin, Malay and English. He is of Chinese ethnicity and Buddhist religion. He indicates in his protection form that he travelled only to [another country] in transit to Australia. He arrived in Australia [in] August 2010. He applied for protection [in] August 2015. He claims he cannot return to Malaysia because he worked as a partner with a Malay on a government [project]. The applicant provided all of the workers. The Malay person disappeared with the pay for the workers and the workers blamed the applicant. They tortured him, threatened him and even beat him up severely. He did not report this to police as the deal was only verbal. He fears being harmed by his business friends as they have contacts with local goons and gangsters and he cannot relocate.
His application for protection was refused by a delegate of the Minister for Immigration and he has applied to the Tribunal for review of that decision. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant. The issues in this review are whether [the applicant] has a well-founded fear of being persecuted in Malaysia and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
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.
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.
Does [the applicant] have a well-founded fear of being persecuted in Malaysia?
[The applicant’s] claims and evidence and consideration of claims
The applicant claimed in his protection visa application that he was working as [an occupation] in a [business] and was earning a good income. Through his work he got to know a Malay guy who asked the applicant to become a partner in a government [project] contract. The Malay guy asked the applicant to organise the workers. He invited some of his friends to work with them but did not tell these people about his Malay partnership. He and his friends managed to finish the project and were waiting for the payment but the Malay guy cheated the applicant and disappeared with the money. His friends were asking him for pay but he could not tell them about it because they did not know about his partnership. As the days passed his friends thought that it was he who was the one trying to escape with the money and they started to torture him, threatened to kill him and even beat him up severely once when he was in his house (and he states he then made a police report but until now nothing happened). He states he could not make a police report because the deal was made verbally and there was no evidence to prove it. He realised people were following him, and it could only be because his friends were still waiting for their pay checks. In order to save himself he came to Australia and stayed here. He is in fear of being harmed or killed on return, fearing his business friends as they have contact with local goons and gangsters and he cannot relocate himself. He states that the incident happened in 2010, and although this is 5 years ago, his friends are very dangerous people because they are close with gangsters and even some politicians so they can easily track him down and will kill him if he returns. He does not believe the authorities will protect him because there was no proper agreement so he could not provide any evidence of the Malay guy, he even went to the police station and talked to them about this but the officer said that he could not help the applicant. The authorities only deal with cases properly if money is given to them.
Apart from identity documents, the applicant provided no other documents or evidence to the Department. He was invited to arrange an interview to discuss his claims but did not do so. The delegate found that country information showed that the Malaysian authorities, including the police and judiciary, are reasonably effective in combating organised crime and protecting persons from criminal harm, there was nothing to show the State would be unable or unwilling to protect the applicant in his circumstances, he had not provided any supporting documentation, nor taken the opportunity to have an interview, and without further context found on the information before them that he would receive effective protection from the Malaysian police and judiciary in Malaysia against any threats he faces from a criminal gang, found that all of the elements in s.5LA were satisfied, and therefore that the applicant did not have a well-founded fear of persecution as defined in s.5J and therefore was not a refugee as defined in s.5H and s.36(2)(a) was not satisfied for this reason. The delegate acknowledged that the complementary protection provisions under s.36(2)(aa) required a higher standard of state protection than the refugee provisions, but was satisfied under this higher standard that the applicant could obtain protection such that there would not be a real risk he would suffer significant harm.
The applicant provided a copy of delegate’s decision with his application for review. Apart from a photocopy of his Malaysian passport he did not provide anything else to the Tribunal.
At hearing I discussed the applicant’s life in Malaysia. He said that he had lived in Selangor, the province next to Kuala Lumpur. I asked what work he had done and he said various jobs. He said his parents and [siblings] lived in Selangor. He confirmed he had come to Australia in August 2010.
I asked him what had happened to make him fear returning to Malaysia. He said he had wanted to work with a friend and then he took money and ran away, and because the applicant was kind of the leader and hired several co-workers he did not have money to pay them. He reported this to the police, and the police in Malaysia is quite corrupt, if you don’t bribe them they won’t do anything for you. Whenever they had projects, they rarely had a formal written contract, and because the one who took their money had a background of mafia, they kind of protect him. They reported this to the police and could not do anything and get his money back. I asked him to explain in more detail. He said that the workers thought he had cheated them so they hurt his family and intruded into his home and damaged all his property. And that was the whole thing. I asked when this had happened. The applicant said it happened 5 years ago. He then said that it happened in the 1990s, and then that it happened five or six years before he came to Australia. I asked if he was saying it happened around 2005 and he said he was. I asked him to start from the beginning and tell me what happened. He asked if I meant to tell him the whole story and I said that was what I wanted. He said he used to work in a [business] and met this person. He told the applicant that he had a project and wanted the applicant to find some workers for this project. He said this type of arrangement was common in Malaysia. I asked what the project was and the applicant said it was like [specifics of project]. I asked if this was for one or many [project] and he said like one big [project]. I asked what this person’s name was and he said [Mr A]. I asked if [Mr A] had a family or any other names and he said they only went by the name. I asked him to describe [Mr A]. He said he was [a physical appearance] and drove a [certain brand of car]. I asked what ethnicity he was and he said Malay. I asked what exactly the applicant did and he said that he found the workers and [Mr A] paid the commission. I asked how long it took to do the job and he said that they had not completed the project yet, because he took the money and ran away, so the workers were not able to finish it.
I asked how long into the project did [Mr A] run away. He said around 3 months. I asked if the workers had been paid at all in that time and he said no, not at all. I asked what reasons he or [Mr A] had given for not paying in that time. He said that the reason [Mr A] gave to him was that the company had not paid [Mr A] yet. I asked how many workers there were and the applicant said around [number]. I confirmed that they had not finished the project and he said no they had not. I asked why not and he said ‘well I had not paid them at all, why do they have to help us to finish the project?’ I asked if he knew these workers before the job. He said some he did, some he didn’t. I asked how he knew that [Mr A] had run off with all the money. The applicant said that he could not find him anymore and he went to the company and then the company told him they had already paid [Mr A] 2 months ago. I asked him if he had asked the company to pay for the workers. He said that he did not have the right relationship, it was always [Mr A] who approached the company, he was just the worker who helped find the workers, he did not have any connections with the company. I noted that he may have been able to make some arrangement with the company. He said that he did not know the specific deal between [Mr A] and the company, maybe it was in advance. The applicant’s duty was only to supervise the workers, he didn’t have access to the payment. He said that due to the delay of payment he went to the company to ask what happened and what was going on. I asked could he not have negotiated with the company to have the job finished and the workers paid. He said that after [Mr A] took the money the company refused to relocate the job for them. He said that the workers were outraged and all thought that the applicant had robbed them of money. The workers gave him time to find [Mr A] but where could he find him? He could not find him and then they threatened his family and hit him. I asked who had done this and he said the workers. I asked had the workers not understood that it was a problem between [Mr A] and the company and nothing to do with the applicant. He said that the problem was that he found the workers, they had a direct connection with him. I noted that it was partly this direct connection that meant I did not understand why they would think it was his fault when from what he had told me it did not appear to be his fault. He said he knew it was not his fault but he found the workers, they would come to him. He said that they threatened to hurt his family, they said ‘if you don’t pay us money we will go hurt your families.’ I asked if they had done that. He said they had not, but they did hit him. I asked what happened when they hit him. He said it was on the road, he was on the road, it was close to his home in Selangor. I asked if he was saying he was walking on the road and they hit him? He said he was driving his car on the road and they stopped his car and dragged him out of the car and hit him. I asked what happened then. He said there were [number] people, as they had one car. I asked if they said anything and he said that they said ‘if you keep doing this, every time we see you we will beat you.’
He said that he was hiding after that incident, he didn’t go home. I asked if he had been beaten up any other times and he said that the other time occurred on the ground floor of his home, and the third time occurred [at his workplace], and they chased him multiple times. He said he was hiding here and there. I asked what hiding here and there meant and he said he was hiding by himself, everywhere in KL. He said he had to run away and hide in different places, abandoned work sites and mountains and forests. I asked if he was saying he did this for 5 years and he said yes, during the day he would go to work and at night he would sleep in that type of building. I asked how he could be in hiding and go to work? He said it was just part time jobs. I noted that if he went someplace to work, these people could find him where he went to work. He said that he didn’t work in Selangor, mostly he found work in KL, he was trying to find work outside his hometown. I noted that his description did not sound like he was in hiding to me. He asked what I defined as hiding and I said that I understood that to mean not going out to work or somewhere habitually where you could be located. He said that he could not survive if he just stayed in the same place, he needed to find some place to make a living. I asked if these workers were looking for him for the whole 5 years and he said he was not so sure but when he called back home his family said they had been looking for him. I noted that I had some doubts about his claim that these people had harmed and threatened him for three months’ pay. I noted that this seemed a lot of effort to go to for 3 months pay. He said that Malaysians can kill you for 100 dollars. I asked what he believed these people wanted him to do and he said they wanted him to pay them the money. I asked what would happen if he did not and he said that they would beat him. I asked if he was saying this would happen even though this happened 10 years ago. He said that it was not that long ago. I asked if his earlier confirmation it happened in 2005 was correct and he said yes, 2005. I noted that that was a long time ago for 3 months’ pay.
I asked what he thought would happen if he went back to Malaysia. He said that if they catch him he will have severe consequences. I asked if he could be more specific. He said that they would definitely ask him to pay their money. I asked if he could do that. He said that it was a lot of money, how could he afford to pay? I asked how much it was and he said he did not know, he did not know the specifics, [Mr A] was mainly responsible for payment, he was just responsible for the project. I asked hadn’t he hired the workers, which might have involved discussion of rate of pay? He said that he helped find the workers but [Mr A] talked about payment to them. I asked if he was telling me he could not tell me how much they were owed and were demanding from him. He said around how much he did not know.
I asked if he had gone to the police when he was beaten up or when they threatened him or his family. He said he did report it to the police but the system was quite different from here, the police were very corrupt, if you don’t bribe them they won’t do anything to protect you and will ignore you if you don’t pay them, they only work for money.
I asked if these people had harmed his family at all. He said no, they had just threatened, they had threatened to burn the family home down. I asked if they had said they would do this unless he paid them and he said yes. I asked if he was saying they had threatened to do this and had then not carried through with this threat; I asked if this was the case why he thought they would do anything to him if he returns. He said that was for sure. I noted that they had threatened to burn down the family home and had not. He said that they were trying to push him to pay them back. I asked again if he could pay them back? He said why did he have to pay them back. I noted that this may be better than the alternative. I noted that he did not even seem to know how much money they were demanding. He said that he really didn’t know the deal, like it was just [Mr A], they have direct connections, he simply helped them find the workers.
I asked who he believed would harm him if he went back. He said it was hard to say, those [number] workers. I asked how many of them still wanted their money back and he said he assumed all of them as none got their money. I asked if he feared anyone else or just these approximately [number] people and he said no, that’s it. I asked if he feared any connections of theirs and he said he didn’t think so, just these [number] people. I asked if he feared local gangsters or local politicians. He said not really, he didn’t owe them anything.
I asked if he could go to another part of Malaysia. He said that if they knew he was back they would find him. I asked how they would find him outside Selangor. He said that they are gangsters, they will definitely find him, it didn’t matter where he went or where he lived.

I then put to him country information already contained in the Departmental decision, a copy of which he had provided to the Tribunal, and explained this to him. I noted that it may indicate that the police would not be unable or unwilling to protect him and may offer him reasonably effective protection and a level of protection meaning that there would not be a real risk he would suffer significant harm. He said that that was the official status, it was very deceptive, the reality was hidden by those police forces. He said that the police are beneficiaries of bribery. I noted that I may prefer the assessments in the DFAT report and other country information to his subjective views. He said he did not know what to say but definitely the information contained some bias, because most of the people even government officials don’t know what really happens in local society and what the police are like. He said that this information is purely from government.
I then raised with the applicant a number of inconsistencies between his written statements in his protection application and what he had said at the hearing, noting that in his written statement he claimed these things had happened in 2010, and today had been clear that this had happened in 2005. In his written statement he said that the project had been finished and today had been adamant it had not been finished. He said that the written statement had not been written by him, they just wrote the written statement and just did the general idea, not the whole story. I asked how this could occur and he said it was because the person spoke Malay, there was a language barrier and friends helped him.
I then raised the issue of delay in his application for protection with him. I asked if he had been afraid to return to Malaysia when he arrived. He said he was. I asked him to confirm he had come on a 3 months visa and he said he had. I asked what he had done after those three months and he said he did part time [jobs]. I asked why he had not applied for protection sooner. He said he did not know it existed. He said he had no access to anything, when he came here they don’t have any information. I noted that information on protection is readily available, including in Mandarin. I asked how he had found out to apply in August 2015. He said it was because of friends. I asked then why he couldn’t have found out earlier. He said he did not know about it. I noted that if I did not accept this it might make me think he did not fear going back to Malaysia for the reasons claimed. He said that firstly it was a new country to them and didn’t have any social connections and could not communicate in English, he didn’t know who to seek help from. He said it was really hard for him to apply for protection at that time. He said he applied in 2015 by coincidence as he met a couple who also mentioned this to him as they applied for protection. I noted that I may have difficulty believing that if he really didn’t want to go back he could not have found out about it earlier. He said that as he had said, as a foreign language speaker to live in a completely new country, how could I expect him to get access to this information without any assistance.
I asked the applicant if he feared harm on return to Malaysia for any other reason. He said he had no fear for any other reason.
I then set out issues and concerns I had with his evidence. I noted that I found his claims of some concern, I was not sure I accepted that people would pursue him for three months’ pay. I noted that his description of the attacks on him were vague and unspecific. I noted that his description of hiding for 5 years but also working may be implausible and was also vague. I noted that when I put these together with the delay in applying for protection in Australia, it might lead me to doubt his general credibility or that these things had actually happened. In response he said that he did not know what to say. I asked if he had any documents such as a police report or documents for the agreement. He said as he had already said he did not have any of these documents.
Conclusions
On the evidence before me I accept that the applicant is a national of Malaysia, of Chinese ethnicity, speaking Mandarin, and has lived in Selangor.
I did not find the applicant’s evidence convincing. His evidence on the work arrangement with [Mr A], whether he had told the workers about [Mr A] or not, when this event happened, the work being completed or not, the blaming of him by the workers and their pursuing him, rather than the company or [Mr A], and only for three months’ pay, was implausible, vague and at variance with his written claims. Even if I accept that his written statement was drafted by someone who spoke Malay, not Mandarin, I do not accept that these errors are explained by this and the applicant’s claim that this person only wrote down the main points, as I consider that the date this happened and whether the project was finished or not are main points, nor does this explain what I consider the considerable implausibilities at the heart of his claim – that he appears wholly unaware of the sum of money owed to the workers by [Mr A], which they then have demanded from him and apparently threatened his life over; that he was unable to negotiate an arrangement with the company to finish the job (if as he claimed at the hearing it was unfinished) and for the company to then pay the workers, why the workers considered him wholly responsible for them being unpaid, and then how he was able to, he claims, hide, but continue working for five years before coming to Australia. The applicant’s explanations for these implausibilities do not make sense. Even when he was put on notice that I had concerns with his claims and evidence, he did not provide further details or explain these implausibilities. I found the applicant’s claims, to have organised the workers for a project and to have had his business partner disappear, leaving the workers demanding money from him and threatening him if he did not pay them, wholly unconvincing in the details of these claims, or even when discussing how such a claim would work when discussing the plausibility of the arrangement and the circumstances.
A further concern which strengthens my findings is that the applicant delayed applying for protection for five years after he arrived in Australia. I explained to him, and find, that a person who holds a genuine and legitimate fear of return to their country of origin would have strong motivations to find out about and then apply for protection. I do not accept his claims that he only found out about it later when a couple also applying for protection applied. I understand his claims to have had a language barrier to apply for protection but note that he has been able to secure work, despite presumably having the same language barrier. I find that the considerable delay of five years in this case indicates that the applicant does not hold the genuine subjective fear of return to Malaysia for the reasons he claims, and this leads me to further doubt his claims above.
For the reasons above I have reached a positive state of disbelief in relation to the claims made by the applicant for why he fears return to Malaysia. I do not accept that the applicant went into partnership or any other arrangement with [Mr A] or anyone else for a government [project] contract. I do not accept that the applicant arranged workers for this project, that at the end or three months in that [Mr A] disappeared with the money which was to be paid to the workers, and that despite them giving him time he was unable to locate [Mr A]. I do not accept that the workers/his friends thought he was the one trying to take the money and held him responsible, started to torture him, threatened to kill him and even beat him up severely (either on the road when he was driving, once when he was in his house, or at another time), that they chased him, that he reported this to the police but the police did nothing. I do not accept that the applicant was in hiding and lived in abandoned work sites and mountains and forests and continued to work. I do not accept that the applicant’s friends/the workers are gangsters, or have contact or connections with local goons and gangsters or politicians. I do not accept that the authorities would not be able or would be unwilling to protect him for any reason.
I asked the applicant if there were any other reason he feared harm on return to Malaysia and he indicated there was not, and I so find on the evidence before me.
For the reasons given above I do not accept that, if [the applicant] returns to Malaysia now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for any reason by the applicant’s friends/the workers, their claimed local goon and gangster or politician connections or anyone else. I have considered the totality of [the applicant’s] circumstances that I accept, as a Malaysian of Chinese ethnicity, who speaks Mandarin, and on the evidence before me I do not accept that there is any prospect of him being harmed on return to Malaysia now or in the reasonably foreseeable future. I do not accept for the reasons given above that he has a well-founded fear of being persecuted as defined in s.5J and therefore I find he is not a refugee.
Are there 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?
Having regard to my findings of fact above, I have found that he would not be harmed by his friends/the workers, their claimed local goons and gangster or politician connections or anyone else on return to Malaysia for the reasons he has claimed. I asked the applicant if there were any other reason he feared harm on return to Malaysia and he indicated there was not, and I so find on the evidence before me. I have considered the totality of [the applicant’s] circumstances that I accept, as a Malaysian of Chinese ethnicity, who speaks Mandarin, and on the evidence before me I do not accept 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.
Conclusions
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.
Sean Baker
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 3682

4 April 2016

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Immigration

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Statutory Interpretation

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