1606103 (Refugee)

1606103 (Refugee) [2017] AATA 2931 (15 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606103
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Ann Brandon-Baker
DATE:15 November 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 November 2017 at 5:58pm

CATCHWORDS
Refugee – Protection Visa – Malaysia– Social group – Lesbian – Changed her sexual preference to straight – –Threatened by ex-boyfriend – Inconsistent evidence
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1)(a), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A)-(2B), 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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] April 2016 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] February 2015. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations.
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 the applicant is a person to whom Australia has any protection obligations within the meaning of the Migration Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has had regard to the information the applicant provided to the department including passport, identity and biometric information. The Tribunal is satisfied that the applicant is a national of Malaysia born on [date] ([age]–years old). For the purposes of this assessment, therefore, the Tribunal is also satisfied that Malaysia is the receiving country. The Tribunal has no evidence before it to suggest that the applicant has a right to enter and reside in another country, nor has she claimed any such right.
Claims in the protection visa application form
The applicant made the following claims in her protection visa application:
a.The applicant was threatened by the authorities after her involvement in a “boycott parade” in Kuala Lumpur protesting against the high cost of living
b.She experienced harm from the authorities during the parade
c.The applicant is afraid of getting caught due to her previous involvement
d.The applicant believes that the police are corrupt and she is too traumatised to seek help from them
e.The authorities cannot protect her as she joined the opposition party
f.She cannot relocate to another place in Malaysia because it would still be traumatic for her to stay there
g.She is worried about her safety because she is a woman
In coming to his decision on the application, the delegate considered country information prepared by the Australian Department of Foreign Affairs and Trade, the US State Department, Freedom House, various articles published in New Mandala and the Malay Mail, a chapter in the Report of the People’s Tribunal on Malaysia’s 13^th General Elections in March 2014, an Amnesty International Report published in August 2015 and other articles. This information was set out in the delegate’s decision.
The delegate found that whilst the country information indicated there were flaws in Malaysia’s judicial system, he was not satisfied that it could be conclude that the applicant would be dealt with in an extrajudicial manner either on account of being involved in a protest or of being a member of an opposition party. The delegate found that whilst it is plausible that persons participating in protests in Malaysia can be subject to criminal charges he was not satisfied that a person with the applicant’s claimed profile would be subject to unlawful detention or serious harm amounting to persecution.
The delegate also considered the complementary protection criterion and found that there was no real chance that the applicant would suffer significant harm if she were returned to Malaysia.
Tribunal hearing
Prior to the Tribunal’s scheduled hearing, the applicant provided some screen shots of missed calls and some untranslated text messages. The applicant claimed that she has been threatened by some unnamed individual who is waiting for her to go back to Malaysia. She claims that she has also been threatened by her ex-boyfriend.
The applicant told the Tribunal that she departed Malaysia [in] November 2015 and made the decision to leave exactly a week before that. She did not tell anyone except a sibling that she was leaving because she didn’t want her family to prevent her from leaving. Asked why they would prevent her from leaving the applicant claimed it was because she was a girl and they would be worried that she would not be able to survive. She also claimed that she had problems that compelled her to leave.
The Tribunal asked the applicant why she departed Malaysia and she claimed that it was because she was a lesbian and had a partner. Asked why she did not mention this in her protection visa application the applicant claimed that she signed a blank form and sent it to an agent [and] he completed the form. She was unable to give the Tribunal any information about this person except that his first name was [Mr A].
The Tribunal put to the applicant all the claims she had made in her protection visa application and asked her if she wished to continue to make those claims and she said she did not. She said that she didn’t know about any of those claims and wanted to claim that she left because she was a lesbian.
The applicant claimed that she cannot go back to Malaysia because she is a lesbian and her family was not aware until a friend of hers told her parents. She could not recall when that was except that it was in 2015. The Tribunal put to her that it was a significant day in her life and that of her family’s and was surprised that she did not remember the day or month. She said a lot had happened and she couldn’t remember exactly when it happened. Asked if she suffered any harm in Malaysia because she was a lesbian the applicant claimed that she did not. She said that she did not look “butch” so people wouldn’t have known she was a lesbian. The Tribunal asked what harm she would suffer if she returned and she said she was afraid of going back because of the public perception of her as a lesbian. She provided no further information as to how a negative perception, for example, would manifest.
The applicant told the Tribunal that she came to Australia because she and her partner wanted to be together but they did not have enough money for them both to come together so she came to Australia first. She said that after a time her partner told her that she was in another relationship and this caused her a lot of distress. She said that in March 2016 she met someone who changed her and she became normal. Asked what she meant by that the applicant told the Tribunal that she was a lesbian before but now she could accept men and she had a relationship with a man in Australia until he was deported back to Malaysia.
The Tribunal put to the applicant that she had just told the Tribunal that the reason she could not return to Malaysia was because she was a lesbian but now she was claiming that she was no longer a lesbian. The applicant told the Tribunal that she was now having problems with her ex-boyfriend who wants to get back together with her in Malaysia but she doesn’t want to go back. She said that he had threatened to do all sorts of things to her and she can’t go back. She claimed that he said that he didn’t care if he went to jail.
Despite further questioning the applicant could not particularise the harm that she feared from her ex-boyfriend or the specific threats that he had made claiming that he could do anything and has threatened her. The applicant read some text messages that she had provided the Tribunal in Malaysian and the interpreter translated. The Tribunal put to the applicant that the bulk of the message indicated that the applicant’s ex-boyfriend (if that’s who it was) sounded sad and distressed but had not threatened her with any harm. She said that she was scared of him.
The Tribunal put to the applicant that it had no evidence that her ex-boyfriend threated harm to her, and not significant harm for any of the convention reasons that the Tribunal had put to her at the beginning of the hearing and which it did again. The Tribunal put to the applicant that without any further detail from her or additional evidence, the claims she had made would not form the basis of a successful protection claim.
The applicant told the Tribunal that she didn’t know what her boyfriend was going to do because he’s crazy. She said that he was hassling her family and she is scared of being with him because he would beat her. Asked if he beat her when she was in Australia she claimed that she did but did not report it to the police because she was alone, scared and loved him at the time. She said that she told her [sister] in [Australia] but by that time he had already left Australia and returned to Malaysia.
The Tribunal put to the applicant that she also claimed a fear of returning to Malaysia because she was a lesbian but did not detail the basis of her fear or of what harm she feared. The applicant told the Tribunal that she could show it photos of her with her partner. The Tribunal put to the applicant that it was having difficulty coming to terms with the notion that she claimed to be a lesbian but now claimed she was not. The Tribunal put to the applicant that it was not its understanding that homosexuality was a matter of choice and sought some clarity from the applicant on that matter.
The applicant told the Tribunal that she discovered she was a lesbian in 2011 when she and a good friend found out they had feelings for each other. She claims that she and her partner wanted to come to Australia together but could not because they didn’t have enough money. She said that she was scared that her family would force her to marry someone if she returned to Malaysia. She said that she did not want to marry and was neither gay nor straight.
The Tribunal asked the applicant why, if her claims were true, she could not seek the protection of the police and authorities if she returned to Malaysia. The Tribunal put to the applicant that she had text messages that she claimed proved that her ex-boyfriend had threatened her and she could report him to the police. The applicant said that she could report him to the police and that she knows that there was a system in place and even if he was arrested he would still get out and she was afraid. She told the Tribunal that at this point in time she really can’t go home and she was still in danger. She said that the police couldn’t help her because he was psychotic.
The Tribunal asked the applicant why, if her claims were true, she could not relocate to another part of the country in order to stay away from her ex-boyfriend and her family and she supposed she could but she had fallen in love with Australia and did not feel that she could leave at this point in time because she was afraid.
The Tribunal put to the applicant that she had made three new claims and disavowed the claims she made in her protection visa application – which she now says were made without her knowledge. The Tribunal put to her that she had made false and misleading statements to the department of immigration and this, along with the new claims she was making may lead the Tribunal to form a negative view about her credibility. The applicant promised on her God that she was telling the truth and whilst overwhelming, her story as to why she came and why she can’t go home is true. She claimed that she wanted to tell the department she was a lesbian on her form but her agent told her that she did not look “butch” and the department’ wouldn’t believe her. She said she was scared to go home.
Findings and reasons
Credibility
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that 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 is mindful 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.[1] 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.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220
[2] 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 put to the applicant its concerns about her credibility, particularly as she had disavowed her previous claims as not being her own claims and hence effectively providing false and misleading information to the department of immigration and also because she only now sought to raise new claims in relation to her homosexuality and her now ex-boyfriend.
The applicant claims that she sent her “agent”, a man called “[Mr A]” a signed blank form and he completed the claims on her behalf. The Tribunal does not accept this account. Unless the applicant also provided “[Mr A]” with all other relevant information that is contained in that form, for example, family composition and names, home address, schooling, travel undertaken, date of birth, date of passport application, credit card details as well as copies of identify documents and passports, it would not have been possible to complete that application. The applicant does not claim that she provided “[Mr A]” with all this additional information and documentation, only that she provided him with a signed “blank” form. The Tribunal does not accept that the applicant did not complete her protection visa application form or that she was unaware of the claims therein. The Tribunal is not satisfied that the applicant has given the Tribunal a truthful account of her reasons for coming to Australia and for not wanting to return to Malaysia, or of why she made claims in her application form which are not true.
On the front page of Part C of the application for a protection visa form 866C, there is a Declaration of Truth which requires the applicant to declare and sign that the information she provides in this application is truthful and honest in every way. There is also an applicant declaration at paragraph 101 of the application form that requires the applicant to declare that the information supplied or caused to be supplied on or with the form is complete, correct and up-do-date in every detail.
The Tribunal does not accept that the applicant was not aware of the claims made in the Protection Visa application form. The Tribunal finds that the applicant did not provide information that was truthful and honest in every way or that the information she supplied or caused to be supplied with the form was complete, correct and up-to-date in every detail.
The Tribunal finds that the applicant is not a witness of truth and the claims made in her application and subsequently to the Tribunal at the hearing and discussed below lack credibility.
Homosexuality and perceived homosexuality
The Tribunal does not accept the applicant’s claim that she departed Malaysia because she is or was a lesbian, or that she would suffer harm in the future on the basis of her claimed or perceived past homosexuality. Indeed, the applicant told the Tribunal that she did not suffer any harm as a result of her homosexuality in Malaysia in the past. She told the Tribunal that she continued living with her family on the weekends she spent away from college right up until a week before she departed without suffering any harm or threats of harm from anyone.

The applicant told the Tribunal that if she returned to Malaysia she would suffer from a public perception that she is a lesbian but provided no further evidence to suggest that someone who is perceived as a lesbian would be persecuted such that it would amount to significant harm. The applicant has in any case claimed now that she is now not a lesbian and was not considered to be one in the past because when she lived in Malaysia she did not look “butch” or masculine.
The applicant told the Tribunal that she left Malaysia in November 2015 because she was gay and had planned to live together with her gay partner in Australia. However, by March 2016 she claims she was in a relationship with a man and had become “normal”. The Tribunal does not accept the truthfulness of this account. Nor does the Tribunal accept that someone who is a homosexual would use such language as “butch” to describe herself or talk about a heterosexual relationship as being a “normal” one.
She finally claimed that she was neither straight nor gay but just didn’t want to be in any relationship at all. The Tribunal does not take this statement to be one of confusion around her sexuality, but rather a statement that reflects her desire not to be in a relationship. In any case, the applicant did not claim that she was confused about her sexuality nor did she claim she was bi-sexual.
The Tribunal finds the applicant’s account of her alleged homosexuality vague, lacking in credibility, incomplete and unpersuasive.
The Tribunal is not satisfied that the applicant has suffered harm in the past, or has a real risk of suffering significant harm in the future on the basis of her claimed homosexuality if she returns to Malaysia, or indeed, that she is or ever was a homosexual as claimed.
Ex-boyfriend and family violence
The Tribunal does not accept that the applicant suffered family violence at the hands of her claimed ex-boyfriend in the past or that she will suffer such violence in the future if she returns to Malaysia.
The applicant told the Tribunal that she had an abusive relationship with her boyfriend who has since returned to Malaysia but still wants her back. She has provided no reliable evidence to support these claims and told the Tribunal that she had not reported the claimed violence to the police in Australia. The applicant was unable to provide any further detail of those claims and said that she had not told anyone about the claimed violence until after he had departed Australia.
With the assistance of the interpreter at the hearing, the applicant read some text messages that she claimed her ex-boyfriend had sent her around [October] 2017 however the Tribunal has no way of knowing that these messages came from her claimed ex-boyfriend. Even if they did, the messages themselves pointed to a distressed individual more intent on harming themselves than harming others and did not contain any tangible threats of harm to the applicant. The Tribunal accepts that the applicant did not read out all of the alleged abusive messages but notes that it is the responsibility of the applicant to provide the Tribunal with evidence it wants it to consider in a form that enables it to be considered. None of the text messages were translated from Malay into English. The applicant was given every opportunity to submit and provide evidence to the Tribunal.
The applicant was unable to provide the Tribunal with any relevant details of the alleged threats made against her by her claimed ex-boyfriend and hence the Tribunal is not able to be satisfied that such threats amount to significant harm or if they do, whether they are for a Convention related reason.
The Tribunal is not satisfied that the applicant has suffered any harm in the past, or has a real risk of suffering significant harm in the future on the basis of claimed family violence at the hands of her alleged ex-boyfriend if she returns to Malaysia.
Forced marriage
The applicant claimed that she could not return home because her parents would force her to marry however she did not expand on that claim nor provide any further details nor offer any supporting evidence.
The applicant raised the claim at the end of the hearing and did not seek to elaborate. Given the Tribunal’s findings on the applicant’s credibility and the fact that she did not seek to elaborate or provide additional details about that claim, the Tribunal does not consider it to be a credible claim, but rather a further attempt to embellish her claims for protection.
State protection and relocation
As the Tribunal has found that the applicant’s claims for protection within the meaning of the Migration Act lack credibility and have no merit, the issue of state protection and relocation do not arise. Nevertheless, for the sake of completeness the applicant herself has not claimed that she would not receive state protection should she seek it and acknowledges that there is a system in place that would lead to the arrest of her ex-boyfriend if she reported his behaviour. She nevertheless claims to have a subjective fear of him because he is “crazy” and when he was eventually released from prison he would come and find her.
Equally the applicant has not claimed that she could not relocate within Malaysia if her claims about her ex-boyfriend and fear of her parent’s forcing her into a marriage are true.
Conclusions
The Tribunal finds that the applicant’s claims are not credible. Having considered all of the applicant’s claims set out above, individually and cumulatively, the Tribunal is satisfied that there is no real chance that she will suffer serious harm for reasons of her past homosexuality, family violence or for any reason set out in s.5J(1)(a) of the Act if she returns to Malaysia now or in the reasonably foreseeable future. Furthermore, the Tribunal is not satisfied that there is any other issue squarely raised by the evidence and not articulated, that satisfies the Tribunal that the applicant has a real risk of significant harm for any other reason should she return to Malaysia.
On the evidence before it, the Tribunal finds that there is not a real chance that the applicant would be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion) if she was to return to Malaysia. Her fear of persecution is not well-founded as required by s.5J of the Act. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the applicant does not satisfy the criterion in s.36(2)(a) of the Act.
The Tribunal has considered whether the applicant is entitled to complementary protection. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB.[3]
[3] [2013] FCAFC 33
For the reasons given above, the Tribunal has found the applicant’s claims are not credible. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in s.36(2A) and s 5(1) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
A B Baker
Senior Member

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

[2017] AATA 2931

15 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice