1517039 (Refugee)

1517039 (Refugee) [2016] AATA 3869 (20 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517039
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Filip Gelev
DATE:20 May 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 20 May 2016 at 5:17pm

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] November 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Malaysia, applied for the visas [in] June 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of either one or both of the applicants. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicants claim to be citizens of Malaysia and provided a copy of their passports and national ID cards to the Department of Immigration. The Tribunal finds that both applicants are citizens of Malaysia, that Malaysia is their country of nationality for the purposes of s.36(2)(a) and receiving country for the purposes of the complementary protection assessment, s.36(2)(aa).
Third country protection
There is no evidence before me to suggest that either applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Claims
The delegate’s decision a copy of which was attached together with the application for review shows that the applicants first entered Australia [in] July 2013. They did not lodge the application for protection until almost 2 years later, [in] June 2015.
Only the first named applicant (referred to below as the first named applicant or the applicant) lodged written claims for protection. In a typed statement attached to the application form he stated that he is Chinese by ethnicity and a Christian by religion. He is a “market hawker”. Because the Malaysian government “was decayed”, in 2013 he began participating in opposition activities and demonstrations (“the parade”).
He said there was discrimination on racial and religious grounds, but he truly understood the horrors of the above from April 2013, then he:
gather everywhere to take the videos of the ruling party members bribery voters. Then what they found on [date] and knew me have taken all the videos. They called the gangstertom to find my house and hit me and take all the data and warned me.
They warned him not to continue to be “nosy” if he wants to stay alive. They also said this is Malaysia and he should go back to China.
He went to the police station to report the matter. “Police officers learned the cases after and just tell [the applicant] he will be handling.” After a few days, on [date], the applicant found that his house had been vandalised and “a little bit be burned”. He again reported the matter to the police, who again said they will be handling the matter.
[A few days later] the applicant went on a two week tour of [Country A] with his wife. The first named applicant was hoping that when he returned the problems would have subsided. However, when he returned on [date], he found that his hawker licence had been revoked. He asked the council why. They told him that the “hawkers license seat turned to selling Muslim food” and as he was not a Muslim, his spot or position was given to an ethnic Malay person.
He felt disappointed and he fears for his country. At present he also worries about the future beyond the 2018 election, because the government party “lose the power whether it will once again Chinese exclusion”.
Elsewhere in the application, the applicant wrote that he cannot stand living in a country with serious corruption, embezzlement and persecution, threats, inhuman. He worries about the possibility that Chinese Malays may suffer “exclusion” again, because the ruling party will incite racial sentiments in order to stay in power.
At the Tribunal hearing the Tribunal took evidence from both applicants while they were both in the hearing room, rather than one after the other.
The first named applicant confirmed that he was born and grew up in Kuala Lumpur. He said that he lived his whole life in Kuala Lumpur.
Both applicants are ethnic Chinese and Christian by religion.
The applicants confirmed that they came to Australia in June 2013 and did not apply for protection until June 2015. They said that at first they did not know how to apply, until they searched for information online. The Tribunal asked why it took them almost two years to search for things online. Then the first named applicant said that they first overheard a conversation about protection visas and then they looked up online what to do.
The first named applicant, even though he requested a Mandarin interpreter for the hearing, said that he prefers to speak in Cantonese. The interpreter said that he also speaks Cantonese (although he is not qualified in that language). The Tribunal said that if there were problems with the interpreting we would have to revert back to Mandarin or adjourn to another day. The applicant did not raise any other difficulties with the interpreter either at the hearing or later on in his email [of] May 2016.
The Tribunal asked why they left Malaysia. He said back in 2012, because 2013 was the election year, he took part in protests against the government. He secretly made a video and received threats as a result.
The applicant was asked what protests he was engaged in. He said he joined the opposition in protests.
The Tribunal asked what party protests he had joined. He said the Rocket Party. The Tribunal said that the party was called the Democratic Action Party. The applicant said they call them the Rocket Party.
When there was a gathering to give a public speech, the applicants were there. Neither applicant could remember any particular dates of gatherings they attended.
When asked if they were also involved in any other gatherings or protests, the first named applicant said that they were “mainly” involved with the DAP, but they also joined the anti-corruption protests known in Malaysia as Bersih.
The Tribunal asked the applicants whether they were members of the DAP. They said they were supporters, not members.
When asked how many times they attended DAP gatherings or protests, the first named applicant first asked whether he should count small gatherings, he said more than 10.
The second named applicant said that she did not attend any gatherings at all, because she was too fearful.
The first named applicant said that he attended two Bersih gatherings, but could not remember when.
The second named applicant she had not attended any Bersih gatherings.
The Tribunal asked whether the first named applicant had suffered any harm before or after any of these gatherings. He said that the police used water cannons, but he was not seriously hurt. When asked if he was beaten, he said no, he was just moved around with the crowd attending the protests.
The Tribunal invited the applicant to elaborate on his written claims about the secret video. He said it was a video of someone buying a vote. The first named applicant said that it was of a person belonging to the ruling Barisan National (BN) Party paying money to people to buy their votes.
The first named applicant said he had personally made the video on an “election ground”, a voting place. They said the video was taken at a school the name of which they could not remember, because it has a Malay name. It was in the area of [Town 1]. He said it was about 45 minutes away from his home and he could not recall the exact address.
The Tribunal asked why the applicant was voting there and not near his home. The applicant said that the government designated where you should be voting. The second named applicant explained that where you are designated to vote depends on where you lived as a small child. The Tribunal notes that according to the applicant’s application form, he lived at the same address from birth up until the time he came to Australia – [address] Kuala Lumpur. This latter address is also the address on his national ID card, provided to the Department of Immigration with the application for protection (at folio 34).
When asked what camera he used, he said it was [a brand]. The Tribunal observed that this was a large camera (in the sense that it is not a small device that one can use without attracting attention) and it was surprising that he was allowed to take footage. At the hearing the Tribunal googled the model and showed the applicant a photo from its computer screen[1] (the size of the camera is 125 x 96 x 77mm.[2] It is a standard DSLR camera that can be spotted from some distance away). He confirmed that was the camera model he used to shoot the videos. He said that he was actually noticed [in the afternoon]. He had voted around [time] and then [before noon] he started taking videos in the crowd or from his car.
[1][details deleted]
[2] [details deleted]
The Tribunal noted that video shooting used up a lot of memory. The applicant said he did not shoot continuously and he took some still photos. He said that in total he shot about 20 video clips, each one of 30-50 second duration. He did not get a chance to count the number of photos, because the government came to his house and confiscated both his camera and his laptop.
He said that he recorder “people” giving bribes to voters. The Tribunal invited him to elaborate on what he saw. He said “they” were looking for voters, then “they” gave money to voters and asked them to vote for “them”. He said that it was done openly. The Tribunal asked whether he was the only one who saw this. He said that many people witnessed it, but the question is how many people made videos or took photos.
Later on at the hearing the applicant was asked how he was identified and also they found out where he lived, while [for about 4 hours] he had been left undisturbed. He said he did not know. Perhaps they followed him home.
He confirmed that it was during the elections in 2013. He said that the authorities came to his house the same day that he had taken the videos and photos. When asked about the date, he said he did not recall, but he repeated that it was on the day or the elections. The second named applicant confirmed that was what she recalled as well.
The first named applicant said the people who came to his house looked like gangsters, there were four of them.
That same night the applicant went to the police. The police told him to provide evidence, but he did not have any. Two days later some people returned and poured paint on the outside of the house. He said that he went to the police a second time, after his house was vandalised again. Again, they did nothing to help.
The applicants said that they prepared the written statement submitted with the application, but because of their poor English they used Google Translate.
The Tribunal noted that according to the applicants’ written statement the videos were taken [on date] and the visit to the house did not occur until [the next month]. Also, the vandalism on the house did not happen until [date] – four days later – rather than two days later as he had said a minute ago. They said that they had provided the dates as best as they could recall.
The Tribunal noted that even though they may not be able to remember exact dates, the statement says that the video was taken some days before the visit by the gangsters. The Tribunal told the applicant that the elections happened on 5 May 2013[3] and therefore the applicant could not have taken videos [on date] and he could not have been visited by gangsters or the authorities on [date]. Initially he blamed Google. When the Tribunal pointed out that it could not see how the dates could have been mistranslated by Google, the applicant said that he had written the statement from memory.
[3] “ [details deleted].
The applicant was invited to talk about the further events that allegedly took place in 2013. He said that after he returned from [Country A] his licence had been revoked. He was selling watches at the market. He said he did not receive any notification in writing, he was just told that he no longer had a licence. The stall was given to someone else to sell Muslim “biscuits” used at the mosque.
The applicant said that when the videos and photos were confiscated, he approached the DAP about the matter. They told him to go to the police. The DAP could not use this incident to embarrass the governing party, because there was no hard evidence (after it was taken away from the applicant).
When asked whether he had obtained a report from the police, he said they told him to go home to wait. When asked what he was meant to wait for, he said that he did not know.
When asked what he feared on return to Malaysia, he said that he feared for his safety, because Malaysia is a corrupt country. The Tribunal noted that he had no videos in his possession anymore and asked him what he feared. He said that if someone else were to take footage of corruption, the government might think that he was involved. The Tribunal noted that according to his evidence he no longer even had a stall at the market, but he repeated the same answer as before: he may be implicated if anybody else takes footage or corrupt activities.
The Tribunal noted that according to his version of events the government was very efficient at finding him and confiscating his laptop and his camera on the same day; hence the Tribunal may also not find credible his alleged fear that he may be accused of being associated with anybody else who takes videos or photos in the future.
When asked who the leader of the DAP is, he answered that it’s Lim Kit Siang. The Tribunal asked how many seats the DAP had in Parliament. he applicant said not many but he was not sure how many. The Tribunal asked about the DAP’s aims. The applicant said its aim was to overturn the current government. The Tribunal noted that every opposition party wants to be in power. The Tribunal asked whether there were any aims specific to the DAP. The applicant said that the government is corrupt and the government oppresses the people, so the DAP wants to be in power. The applicant said that the son of the DAP leader Lim Guan Eng is the governor of Penang state and that state is well governed.
The Tribunal asked whether the applicant had any other fears. The applicant said that he feared that in 2018 if the government lost power, there may be a repeat of the violence of the 1950s and 1960s. The Tribunal pointed out that the violence had happened some 50 years ago. The applicant replied that it was because the same party had been governing for the entire period.
The applicant repeated his fears of violence after the 2018 elections. The Tribunal suggested that the applicant was speculating about the future and had no concrete evidence that problems may occur. The applicant said he did not have such evidence.
The Tribunal said it might find on credibility grounds that the applicant fabricated his story about 2013 and also may reject his claims that he was with the DAP and Bersih.
The applicant advised the Tribunal that he would like to write a new statement about these events to supersede or replace the original statement that the Tribunal raised issues with. The Tribunal gave the applicants a week to do so. The applicant sent an email to the Tribunal on 5 May 2016. He said he apologized for misremembering the date of the elections as [specific date] when in fact it was 5 May 2013. He did not address the other concerns raised by the Tribunal about inconsistencies between the written and oral evidence.
Well-founded fear of persecution
The Tribunal does not accept that the applicants are credible witnesses and rejects their claims in their entirety for the following reasons.
First, there was a significant delay between the time they arrived in Australia and the time they lodged their protection visa applications.
The first named applicant claimed that he was meant to vote at a school some 45 minutes away from his home. He could not remember the name of the school. It was in [Town 1], an area where he lived as a child. However, according to the application form, he lived his entire life at one address.

The oral evidence at the hearing was inconsistent with the written claims. The Tribunal does not accept that the claims could have been mistranslated by Google Translate, because the inconsistencies concern dates and time periods. The applicant said in his statement that he took footage of bribery in [date] and ‘gangstertom’ visited him on [date]. As the Tribunal pointed out at the hearing, the elections in 2013 happened on 5 May. Therefore if the applicant was taking videos and photos [on date], it was not on the day of voting.
The statement said that the gangstertom visited the applicant on [date]. This is still [number] days before the elections. It is also some days after “[date]” whereas at the hearing the applicant said that he was visited on the same day.
The third inconsistency between the written and oral evidence concerns the second visit to his house, when paint was thrown. According to the written statement, it was four days after the first visit ([date] and [date] respectively). According to the evidence at the hearing, it was two days after the elections. While the [date] happens to be [number] days after the elections (because they took place on 5 May 2013) the statement says that the time that elapsed between the first and second visit was four days while at the hearing the applicant said it was two days.
The Tribunal also finds it implausible that bribes would have been handed out openly at a voting station so that the applicant could record what was happening with his camera. In addition, it is implausible that the applicant would have been able to sit in his car for four hours, between about 10am and 2pm, and nobody noticed that he was taking photos and videos of the corrupt activities going on. Finally, the applicant did not explain why he was not approached and have his camera confiscated on the spot if he was identified, but instead was allowed to go home.
The Tribunal finds that the applicants have fabricated their claims. The first named applicant did not witness any improper activities on [date], he did not take video footage or photos and consequently he was never visited by anybody, nor did he have paint thrown on his house or have his house a little but burnt.
The Tribunal also found the applicants’ claimed main fear of future harm to be somewhat vague and unpersuasive. The first named applicant said he was worried that if someone else at the market did what he did and seek to expose corruption, the government might think that he (the applicant) was involved. As the Tribunal observed at the hearing, there were two problems with this claim: (1) he no longer has a stall at the market; and more importantly (2) the ruling party was extremely efficient in making sure that they identified him when he used his camera. They managed to identify him, locate him, and confiscate the embarrassing footage and photos on the same day. In any case, the applicant engaged in nebulous speculation that someone from the market might in the future do something seeking to expose improper activities.
In relation to the applicant’s alleged involvement in protests, the Tribunal notes that the applicant demonstrated some knowledge of the DAP. He knew the name of the former leader of the DAP and the name of the Governor of Penang state. However, he could not remember when he participated in protests or gatherings.
Initially he did not even remember the name of the DAP, but kept referring to is at “the rocket”. In the email of 5 May 2016 he said it was the DAP’s nickname and when the Tribunal asked for the DAP’s official name he failed to remember it on the spot. The Tribunal finds it implausible that if the applicant had any involvement with the DAP he would have failed to remember its official name. The Tribunal observes that at the hearing the applicant not only failed to remember the name DAP, but insisted that the Party was called the Rocket Party.
Further, according to their own evidence, neither applicant is a member of the DAP.
The Tribunal finds that neither applicant has participated in any political activities, including gatherings and protests of the DAP or the movement known as Bersih. The Tribunal further finds that neither applicant has refrained from such participation because of fear. The Tribunal has concluded that the applicants were not interested in politics.
The applicants speculated that there may be anti-Chinese riots or violence around or after the 2018 parliamentary elections, because the ruling party may feel threatened and, in order to remain in power, it may inflame anti-Chinese sentiment.
As the applicant himself admits, there was serious Sino-Malay sectarian violence back in the 1960s. As a Wikipedia article provided by the applicant states, the last “round” of significant violence occurred in 1969.
Based on the available information, including the information provided by the applicant himself, while there are corruption and governance problems in Malaysia, the Tribunal finds that there is less than a real chance of political, sectarian or religious violence now or in the reasonably foreseeable future, including 2018.
Because of its credibility concerns, the Tribunal does not accept that the first named applicant lost his market licence or that he has been discriminated against at the market.
The Tribunal therefore finds that the applicants do not have a well-founded fear of persecution for reasons of their actual or imputed political opinion, their race or religion, or any other of the reasons in s.5J(1)(a).
Complementary protection
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).
Based on the totality of the evidence, for the reasons provided above, the Tribunal finds that the applicants can return to Malaysia and they will not suffer any harm. There is less than a real risk of political, sectarian or religious violence in Malaysia during which the applicants may be harmed. Consequently the Tribunal finds there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Filip Gelev
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 3869

20 May 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Natural Justice