1606121 (Refugee)

1606121 (Refugee) [2017] AATA 988 (7 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606121
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:David Corrigan
DATE:7 June 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 07 June 2017 at 2:24pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Lesbians – Pengkid – Physical abuse – Concealing of sexual identity – Government and societal attitudes – National Fatwa Council

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Abebe v The Commonwealth (1999) 197 CLR 510
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] November 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 applicant claims to be a Malaysian national. Based on the copy of her passport, I find that Malaysia is her country of nationality and her receiving country.
At the hearing, the applicant expressly disavowed the claims set out in her protection visa application which stated that she had a “disability” and was subjected to physical abuse by youths. Instead she claimed to be a lesbian and made associated claims in relation to this. She gave convincing and plausible evidence in relation to this which was consistent with country information and I accept that she is a lesbian. She did not seek to embellish her evidence and her rather masculine appearance including her short hair, dress and mannerisms were also consistent with this being the case.
I accept that the applicant is from a Malay and Muslim background and was born in Penang in [year] and lived with her parents until she was [age] years. I accept that her parents and her family did and do not accept that she is a lesbian and she moved to another part of Penang because of this. I accept that she was in a relationship with another woman from 2007 to 2015 and that they lived together until their relationship ended and she came to Australia. I accept that she had a number of [jobs] in Malaysia including at [a company]. I accept that at these workplaces she was subjected to regular derogatory comments from colleagues because of her appearance and sexuality and that they would occasionally touch her head. I accept that other than her partner, she only had one lesbian friend and that she did not go out much other than to go to and from work and occasionally to shop.
At the hearing, the applicant stated that she wanted to be a man and have her breasts removed and that she had begun saving for the operation for this to occur though she was very well short of being able to afford it. I found the applicant’s claims to be credible in these respects.
The Department of Foreign Affairs and Trade (DFAT) has stated the following:
3.89 Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).
3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.
3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.
3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.
3.93 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a ‘re-education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government ‘viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.
3.94 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 19 July 2016.
Reports also indicate that ‘being homosexual’ is not tolerated by the community generally or any of the religious faiths, and there are reports of men and women being abused, threatened and assaulted for reasons of their sexual orientation. The US Department of State report on human rights practices in Malaysia for 2016 indicates that Malaysia’s human rights problems include ‘discrimination against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons’, and that ‘[r]eligious and cultural taboos against same-sex sexual conduct were widespread’.[2] The US Department of State and a number of non-government organisations have all reported on the Malaysian government’s laws and programs and public vilification of LGBTI people, providing an environment for societal discrimination and harassment and violence against LGBTI people in Malaysia.[3] The Human Rights Watch 2017 World Report on Malaysia states that ‘discrimination against lesbian, gay, bisexual, and transgender people is pervasive in Malaysia.[4]
[2] Country Reports on Human Rights Practices 2016 – Malaysia, US Department of State.
[3] US Department of State, “Malaysia 2014 Human Rights Report”; OutRight Action International, Malaysia must recognize and stop hostilities towards LGBT people”, International Gay and Lesbian Human Rights Commission, “Violence: Through the lens of lesbians, bisexuals women and trans people in Asia”, May 2014.
[4] World Report 2017 – Malaysia’, Human Rights Watch.
A May 2014 report by the International Gay and Lesbian Human Rights Commission indicates that:
Lesbians, bisexual women, queer and transgender persons (transwomen and transmen), and other gender non-conforming people and communities currently face rising hostility, discrimination and abuses in Malaysia. They are unprotected by a political system, which is geared towards promoting and imposing a specific vision of Malaysia.[5]
[5] ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Malaysia’, International Gay and Lesbian Human Rights Commission, 6 May 2014, available at >
The same report refers to lesbians facing physical and emotional violence from family members, verbal abuse or warnings from strangers in public places, and job discrimination, with some employers openly expressing ‘that they did not hire lesbians because they are “trouble”’. The same report indicates that in Malaysia, ‘[s]yariah laws criminalise Muslims for lesbian sexual relations (musahaqah)’:
While Malaysia may have inherited the British colonial laws that prudishly criminalise consensual anal and oral sex acts (carnal intercourse) between adults, it is the current State’s identity politics and the institutional strengthening of Malaysia’s Islamization that has witnessed the increasing importance and influence of state-administered syariah (sharia) or Islamic law. Syariah laws criminalise Muslims for lesbian sexual relations (musahaqah), sex between men (sodomy), sex that is considered “against the order of nature” (liwat), and for “posing” or “impersonating” as the opposite sex (e.g., cross-dressing). Government representatives actively reject sexual orientation and gender identity issues as human rights issues in various national, sub-regional (such as, at the Association of Southeast Asian Nations/ASEAN Intergovernmental Human Rights Commission) and international fora. [6]
[6] ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Malaysia’, International Gay and Lesbian Human Rights Commission, 6 May 2014, available at >
Based on data collected on violence and discrimination experienced by lesbians, bisexual women and transgender persons in Malaysia between November 2010 and November 2011, the report[7] indicated that lesbians faced verbal abuse or warnings from strangers in public places, received threats and experienced bullying on the internet, and faced verbal and emotional pressure and physical violence from family members.
[7] ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Malaysia’, International Gay and Lesbian Human Rights Commission, 6 May 2014, available at >
According to a report on ABC Radio in July 2015, which stated that ‘LGBT rights are largely unrecognised in Malaysia’ and that ‘oral sex, sodomy and cross-dressing are illegal in either the criminal code or Sharia law’, according to the LGBT community, ‘in the past the laws were largely unenforced, but that is changing as religious authorities gain more influence in Malaysia’.[8]
[8] Razak, I, ‘Transgender people in Malaysia report widespread abuse’, ABC: AM, 4 July 2015, available at >
With regard to issues facing transgender people and ‘cross-dressers’, DFAT advised as follows in their July 2016 report:
3.95 Cross-dressing is not technically illegal, however transgender individuals are arrested under the Minor Offenses Act for public indecency and immorality, and, where Muslim, under sharia-based law for impersonating women. These laws are predominantly applied to biological men dressing as women. The National Fatwa Council banned gender reassignment surgery in 1983 and the Registration Department stopped the practice of changing names and gender for transgender individuals on national identity cards.
3.98 State religious officials have been known to subject transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are held in male prisons and have occasionally been subjected to sexual assault by wardens or fellow detainees. Societal violence also occurs. On 10 September 2015, Malaysia’s most prominent transgender activist, Nisha Ayub, was brutally beaten by two Indian Malaysian men with iron bars outside her apartment building. She reported the hate crime to police but no suspects have been identified.
3.99 DFAT assesses transgender individuals, especially Muslim men who either cross-dress as women or identify as transgender, would face a high level of official and societal discrimination and are at moderate risk of societal violence.
With regard to ‘tomcats’ or ‘tomboys’ in Malaysia, in September 2014, Human Rights Watch reported that from 2008 to 2010, seven states in Malaysia ‘issued fatwas against “pengkid,” which roughly translates as ‘tomboy’ or ‘masculine woman’. The fatwas, which have been gazetted in four states, specifically state that women who have a ‘masculine appearance or gestures’ or a ‘male sexual instinct’ are forbidden in Islam’. The fatwas were reported to ‘exist in Johor, Kedah, Kelantan, Malacca, Pahang, Perak, and Sarawak. They have been gazetted in Johor, Kedah, Malacca, and Perak’.[9]
[9] ‘I’m Scared to Be a Woman – Human Rights Abuses Against Transgender People in Malaysia’, Human Rights Watch, September 2014, pp.11 & 75 & footnote 13.
The May 2014 report by the International Gay and Lesbian Human Rights Commission also indicates that fatwas had been introduced in Malaysia ‘to prohibit Muslim women from masculine gender expression (i.e. pengkid, butch women or tomboys)’. According to the report:
With the state endorsing Islamic dominance in Malaysia, fatwa also plays a very important role in shaping non-religious public policies and enactment of secular laws. In 1983, the Council of Rulers imposed a ban on SRS for Muslims through a fatwa. Since then, many additional fatwas have been introduced to prohibit Muslims from changing their assigned gender on the national identification card and to prohibit Muslim women from masculine gender expression (i.e., pengkid, butch women or tomboys). Fatwas are enforceable only after they have been gazetted but many are treated as if they are law regardless of their gazetted status …
In October 2008, the National Fatwa Council announced a fatwa (Islamic edict or opinion) against pengkid, a term that loosely translates as tomboys for individuals in the Malay Muslim community who fall within the spectrum of lesbian butch and transman (see Glossary for more details). The announcement of the fatwa against tomboys sparked protests from people, notably non-Malay Muslims. Many Malay Muslim conservatives, such as members of the National Fatwa Council, nationalist pressure groups, politicians, bloggers, and some members of the public, saw these protests of non-Muslims against the pengkid fatwa as interference in an Islamic matter. Presently, fatwas have been gazetted (officially announced to the public and published in a journal or state controlled newspaper) in the state of Malacca and the federal capital, Kuala Lumpur, to prohibit tomboy or tomboy behaviour. [10]
[10] ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Malaysia’, International Gay and Lesbian Human Rights Commission, 6 May 2014, available at

The November 2012 report on discrimination and inequality in Malaysia by The Equal Rights Trust also states that the National Fatwa Council issued a fatwa prohibiting girls from acting and dressing like boys in 2009:
Similarly, women are in theory free to dress as they wish, but the National Fatwa Council issued in 2009 a fatwa (religious edict) prohibiting girls from acting and dressing like boys, alleging it encouraged homosexuality and violated Islamic teachings. Under the so-called “tomboy” fatwa, girls cannot have short hair, or dress, walk, or act like boys. A fatwa is legally binding, although enforcement depends on the Islamic authorities of each state. [11]
[11] ‘Washing the Tigers: Addressing Discrimination and Inequality in Malaysia’, The Equal Rights Trust, November 2012, at p.87, available at
The April 2012 alternative report by Malaysian NGOs assessing the government’s progress in implementing CEDAW[12], indicates that ‘the National Fatwa Council ruled that ‘pengkids, women whose appearance, behaviour and sexual inclination are like men is forbidden in Islam’’ in October 2008. Among the reasons given for the fatwa was that pengkids were ‘likely to become lesbians’. According to the report, ‘the Malay term used for tomboy in the fatwa is pengkid, which targets Muslim Malay women and girls with a masculine appearance and/or mannerisms’. The report also states that ‘similar to the fatwa on female circumcision, the fatwa on pengkids has not yet been gazetted by states in Malaysia so is not considered law. However, the sentiment is nevertheless concerning, and especially so because it comes from the authority of the National Fatwa Council, which advises Malaysian states’.
[12] ‘CEDAW & Malaysia: Malaysian Non-Government Organisations’ Alternative Report assessing the Government’s progress in implementing the United Nations Convention on the Elimination of All Forms of Discrimination against Women’, Women’s Aid Organisation, April 2012, p.82, available at >
An October 2008 article in The Sydney Morning Herald, refers to Malaysia’s National Fatwa Council issuing a ruling which ‘banned females from dressing or behaving like men and engaging in lesbian sex, saying it is forbidden by the religion’, and while ‘The Fatwa Council does not have jurisdiction in civil law … the ruling appears to be an attempt to push female homosexuality towards illegality’.[13]
[13] ‘Malaysian Fatwa council bans lesbian sex’, The Sydney Morning Herald, 24 October 2008, available at >
The evidence before me does not indicate that the applicant has been previously seriously harmed in Malaysia. However, I am mindful that an applicant does not have to show past persecution in order to demonstrate a well-founded fear of being persecuted.[14] I consider that one of the reasons why the applicant has been able to avoid serious harm in the past is because she has behaved discreetly and limited her activities in public.
[14] In Abebe v The Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ at [192] observed that ‘[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past’.
On the evidence before it, including the country information referred to above, I find that the chance of the applicant suffering serious harm for reasons of her sexual orientation and gender identity, in the form of significant physical harassment from those in authority and the broader Malaysian community, if she lived openly as lesbian would not be a remote, fanciful or far-fetched possibility. In making these findings I note the applicant is from an Islamic background and she has a masculine appearance in terms of her hair style and choice of clothing. I find that the applicant faces a real chance of serious harm in all areas of Malaysia.
Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.
Having regard to the applicant’s past experiences and the country information set out above, I find that there is a real, as opposed to remote or far-fetched, chance of the applicant suffering serious harm, in the form of significant physical harassment or ill-treatment, if she does not modify her behaviour to conceal her true sexual orientation or gender identity.
I find on the evidence before me that lesbians or ‘pengkid’/ tomboys constitute a particular social group within Malaysian society in accordance with s.5L of the Act as the characteristic is shared by each member of the group; and the applicant shares the characteristic; and the characteristic is an innate or immutable characteristic and is so fundamental to the members identity or conscience, the member should not be forced to renounce it; and the characteristic distinguishes the group from society and is not a fear of persecution. I find that the serious harm faced by the applicant would be for the essential and significant reason of her membership of that particular social group. I further find that such harm would involve systematic and discriminatory conduct.
While I note the law criminalising homosexual acts is rarely enforced, I also note the law has not been repealed and that there is little prospect of law reform in the reasonably foreseeable future. I consider the effect of the law and the government’s ongoing public harassment of LGBTI people contributes to an environment where homosexuals experience societal discrimination and violence and official harassment by police and others in Malaysia. Given the whole of the country information, I am not satisfied the State is willing to offer effective protection measures to the applicant, nor am I satisfied the applicant would be able to access effective protection measures if returned to Malaysia now or in the reasonably foreseeable future.
Considering the applicant’s individual circumstances and the country information as a whole, I find there is a real chance she will suffer persecution for reasons of her membership of the particular social group of lesbians or ‘pengkid’/ tomboys, if she returns to Malaysia, now or in the reasonably foreseeable future. Therefore I am satisfied the applicant’s fear of persecution in Malaysia is well-founded, and that the applicant is a refugee as defined by s.5H of the Act.
I find that the applicant does not have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in her case.
Conclusions
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
David Corrigan
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 988

7 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal