1606474 (Refugee)

1606474 (Refugee) [2017] AATA 2216 (20 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606474
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:20 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2017 at 3:47pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Anti-government political opinion – Bersih supporter – Weak and fabricated claims – Credibility concerns
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 36,46,65, 499
Migration Regulations 1994, Schedule 2
CASES
Selvadurai v Minister for Immigration and Ethnic Affairs (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] May 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 the Federation of Malaysia (Malaysia), applied for the visa [in] March 2016. The delegate refused to grant the visa on the basis that [the applicant’s written claims were very vaguely and were not substantiated and that based on country information, it is unlikely that ordinary participants in Bersih political rallies do face a real chance or a real risk of being arrested.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claimed to be born on [date] in [an area] in the Malaysian state of Selangor and claimed to be a citizen of the Federation of Malaysia.
On departmental file [is] a certified copy of the applicant’s passport (issued [in] 2015).[1]
[1] DIBP Folio 91-92
The applicant claimed in his submitted 866C form that he can speak, read and write in Bahasa Malaysian and English; that his ethnicity is Malay; that his religion is Islam; and that his occupation was that of [an occupation].
The applicant also claimed that he was married in 2005 and there is no indication of his wife’s name or whether the applicant has any children, biological or otherwise.
The applicant first arrived in Australia in 1995. More recently the applicant arrived in Australia [in] October 205 while holding a [temporary] visa.
[In] January 2016, the applicant invalidly applied a class XA subclass 866 protection visa. The applicant was invalid because it did not meet section 46(2A) of the Act which required the applicant to provide personal identifiers in relation to the application.
The applicant’s [temporary] visa expired [in] January 2016 and the applicant remained in Australia as an unlawful non-citizen until [date] March 2016 when the applicant applied for a class XA subclass 866 protection visa and was granted an associated bridging visa.
The applicant’s written claims were contained in his 866 Form and they included the following:[2]
·     The applicant claimed that he had participated in a Bersih rally on April 2012 in Malaysia to call for clean and fair elections;
·     The applicant claimed that he was interrogated at a police [station] and he had been harmed by the police during the interrogation process;
·     The applicant claimed he feared he will be placed in jail for interrogation processing again and they will physically harm him;
·     The applicant claimed he was hit by the police at the [station] and he was denied food but not water for almost [number] days;
·     The applicant claimed that he lodged a complaint against the police at [a] Police Station but no action was taken by the police; and
·     The applicant also claimed that the economy is currently bad and he cannot find a job in other states and that “I know they will however find me even if I move to other part of the country”.
[2] DIBP Folio 17-19
No country information or documentary evidence was submitted to the Department to consider.
The Minister’s delegate refused to grant the protection visa [in] May 2016, the applicant applied to the Tribunal to have the delegate’s refusal decision reviewed. The decision record was attached to this review application.
On 8 May 2016, the applicant appeared before a scheduled hearing (via teleconferencing facilities). The applicant was assisted by an interpreter in the English and Bahasa Malaysian languages.
At the end of the hearing, the Tribunal provided the applicant with the opportunity to submit further documents to substantiate or support his claims by 15 September 2015.
Neither by the required date nor right up to the time of writing this decision, no documents or submissions were forwarded to the Tribunal either by the applicant or on his behalf.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of nationality
The applicant claims to be a citizen of the Federation Malaysia and provided copies of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Credibility Findings
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
Overall the Tribunal found the applicant’s written claims were very limited and lacking in detail. The applicant’s oral testimony elaborated on those claims in a consistent manner; however the applicant provided testimony that was frequently neither mutually supportive nor substantiated of his critical claims for protection. The Tribunal provided several opportunities during hearing to address and re-address those discrepancies but the applicant was unable to provide any compelling reasons or country information to support those claims. Generally, the Tribunal found the applicant not to be a reliable witness who provided weak and fabricated claims that he was owed Australia’s protection obligations.
Applicant’s Accepted Personal Circumstances
The Tribunal accepts that the following limited aspects regarding the applicant’s accepted personal circumstances: It accepts that the applicant was born in [an area] in the Malaysian state of Selangor in [year] as claimed. It accepts that his father is retired and that he has [number] sibling who are all adults living in either Selangor or Kuala Lumpur as claimed during the hearing.
The Tribunal accepts that the applicant reached the equivalent of year [number]. It accepts that the applicant travelled extensively in 1990s while the applicant played [a certain sport] [and] that he travelled to [various countries]. It also accepts that he has not travelled to another country for the last ten years, other than his recent arrival in Australia. It also accepts that the applicant has worked variously, since leaving school, as [various occupations] and later as a [job title] for [a certain] company – a position that he lost in July 2015, as claimed.
The Tribunal further accepts that he is ethnically Malay; that his religion in Islam and that he can speak, read and write in English and Bahasa Malaysian.
The Tribunal accepts, as claimed during the scheduled hearing, is married; that his wife resides in Malaysia and that the applicant and his wife do not have any children.
Adverse Credibility Concerns: Political Opinion
During the hearing, the applicant elaborated on his very limited written claims at the time of applicant. He claimed that he had attended Bersih rallies in 2010 or 2011 and 2012. The applicant claimed that while he was not harmed in 2010, he was harmed for attending the 2010 rally in Kuala Lumpur. The applicant claimed he was arrested, detained for [number] days and interrogated by members of the [Police] while at the [police station] ([Kuala Lumpur]. The applicant claimed he was treated roughly and not feed for [number] days, although he was provided with water. The applicant claimed that a police report was issued for attending the rally and that later he lodged a complaint regarding his ill-treatment at the [police] station in Selangor. The applicant, who claimed he was too afraid to attend any further Bersih rallies, further claimed he avoided the authorities before departing Malaysia for Australia in October 2015.
The applicant was able to provide in broad terms that he supported the Bersih rallies because the government is corrupt and not transparent and that elections were not fair or clean; he was able to mention a number of high profiled leaders such as the leader of the opposition, Dr Wan Aziziah and Nurul Izzah Anwar.
On balance, the Tribunal accepts that the applicant has some knowledge of Malaysian politics and that he does share with many other ordinary Malaysian, an anti-government political opinion that is supportive of greater democratic reforms in his home country.
The Tribunal however found critical elements of the applicant’s claims about fears of the police to be mutually unsupportive. Firstly, the applicant claimed he feared the authorities’ in Malaysian after his 2012 arrest for attending an anti-government rally and that he spend many years being careful not to be detected by or very visible to the authorities; yet despite these fears it was claimed that the applicant made a complaint against the authorities directly to the police. Had the applicants a genuine personally held fear of serious harm by the authorities because of political opinion, it would not have been reasonable to make contact with the authorities and then to formally complain against them. Secondly, the applicants who had been well-travelled did not depart the country, either to Australia or to neighbouring [countries]. Had the applicant a genuine and urgent fear of being harm for the claimed reasons, he would have departed considerably earlier to another country than he did in 2015. Thirdly, when the Tribunal asked the applicant how he was not detected, he said that he moved to live with his wife [in] the Malaysian state of Perak. The Tribunal then asked how was the applicant able to commute between Perak and Subang where the [certain] business was operating; the applicant claimed that he only moved to Perak for a few weeks and that he undertook a great deal of ‘field work’ away from Subang Had the applicant a genuine fear of being located with in Malaysia by the authorities for the claimed reasons, it would have been reasonable to relocate considerably longer than just a few weeks or to even have changed jobs.
The Tribunal has also considered whether there are any credible reasons to believe that the applicant is a person of interest to the Malaysian authorities, in the past. During the scheduled hearing, the Tribunal enquired to the reasons the applicant was not apprehended at the airport, given his claim that he was a person of interest to the authorities based on his anti-government political opinion. The applicant responded that he did not know why he was permitted to leave Malaysia. The Tribunal discussed with the applicant that according to country information from the Department of Foreign Affairs and Trade’s 2016 Malaysian report that organisers of Bersih face a moderate risk of being charged, not ordinary protesters who face a low risk. It then further enquired the applicant whether he was a prominent member of the Bersih movement or had a significant role in organising the rallies or any other anti-government matter; the applicant claimed that he was and is not but insisted he was sure he will be targeted on return. While the Tribunal accepts that the applicant does hold anti-government opinions, it does not accept that the applicant was a person of interest to the Malaysian authorities for political opinion, based on the country information discussed, based on his departure without being detained and based the applicant being easily discovered over many years from his putative arrest but never being further arrested or harmed.
In making this finding and based on the same reasons, the Tribunal has further been invited that the applicant was not arrested in the past or will face a real chance of serious harm or a real risk of significant harm into the foreseeable future because the applicant’s dispositive claims.
In the context of these adverse findings and credibility concerns and the same country information, that the Tribunal has considered the lack of documentary evidence to support the applicant’s dispositive claims. Of particular credibility concern, however, was the applicant’s claims about being detained following 2012 rally. Firstly, the applicant claimed that he had a police report but had not provided a copy to either the Department or the Tribunal despite having his application for protection lodged since March 2016. The applicant explained to the Tribunal that the police report was in Malaysia and that he would attempt to provide a copy but anticipated that there may be difficulties because he had moved several times. The Tribunal gave the applicant additional time to submit the document; however the applicant did not provide any submissions at all or any explanations as to the reasons he was unable to forward any supporting documents. This lack of documentary evidence invites the Tribunal to consider that the applicant did not have any police report to submit, not because of the difficulties he suggested, but because the specific claim was an fabrication in order to augment his otherwise very limited written claims. Secondly and similarly the Tribunal asked whether the applicant was able to provide a copy of the complaint he made against his rough ill-treatment by the police in [a certain] police station to another police station. The applicant claimed he did not have a copy in Australia and would endeavour to submit a copy but anticipated similar problems to submitting the police report from 2012. Again, the Tribunal gave the applicant additional time to submit the document; however the applicant did not provide any submissions at all or any explanations as to the reasons he was unable to forward any supporting documents. In the context of the applicant’s not submitting a claimed police report, this lack of documentary evidence further invites the Tribunal to consider that the applicant did not have any police report to submit, not because of the difficulties he suggested, but because the specific claim was also a fabrication. The Tribunal has lastly considered the applicant’s oral evidence about a lack of photographic and other evidence. During the hearing the Tribunal requested whether the applicant was able to provide any photographic evidence or images from social [media]. The applicant responded that he had no photographic evidence because he lost phone and that some documents were back at home in Malaysia. However the applicant made an undertaking to provide additional documents but did not so by the required time or since. Neither did he provide any explanation about his difficulties in obtaining the additional documentary evidence. Based on the applicant’s non-responsiveness in this regard, the applicant has further invited the Tribunal to consider that the lack of evidentiary documents to support his claims of past and prospective harm was due to the applicant fabricating his overall claims for protection for migration purposes.

In the context of its earlier adverse findings and concerns, these specific concerns about evidentiary material have further invited the Tribunal to consider that the applicant does not face a real chance of serious harm or a real risk of significant because the applicant had not been arrested, detained or interrogation and then harmed for the reasons claimed in the past at all.
The Tribunal has also considered the applicant’s delay in applying for a protection visa. The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The applicant arrived in Australia in October 2015, became unlawful between [date] January and the date he applied for a protection visa on but did not apply until [date] March 2016. During the hearing the applicant claimed that he applied for a bridging visa with a protection visa before the expiry of his [temporary] visa. The Tribunal examined the applicant’s visa history more closely after the hearing and finds that the applicant had earlier applied for a protection visa (albeit with significantly different claims) but it was deemed invalid. Accordingly the Tribunal finds that the applicant did apply for a protection visa in January 2016 as claimed. However the Tribunal notes that the applicant remained unlawfully before re-applying and the Tribunal finds that given the applicant claimed to have urgent claims and he was aware of a protection visa as a migration option, he would have applied for a protection visa very close to being notified that he had invalidly applied for a protection visa and avoided being unlawful for the considerable amount of time he had. In not doing so and in the context of the Tribunal’s other concerns, the applicant has further invited the Tribunal that the applicant did not have any genuine or urgent personally held fears of persecution or a well-founded fear of persecution, at the time of application, now or into the reasonably foreseeable future.
Cumulative Findings: the Applicant’s Political Opinion
As discussed during the hearing and outlined above, there were many credibility concerns about the applicants’ specific dispositive claims that he attended a Bersih rally in 2012, was then harmed by the authorities and subsequently became person of political interest. The Tribunal also provided the applicant an opportunity to submit documentary and other information to support his claims but since the hearing neither the applicant nor anyone on his behalf has submitted any documents or even explanations as the reasons he could not access those documents. Based on a cumulative consideration of the applicants’ non-responsiveness, his travel and visa history and his weak and mutually unsupportive written and oral claims and the Tribunal’s findings that the applicant was not a person of interest in the past, the Tribunal makes the following adverse credibility findings that the applicant does not have a well-founded fear of persecution based on his political opinion into the reasonably foreseeable future:
While the Tribunal has provided the applicant the benefit of its doubts that he genuinely holds anti-government political opinions, the Tribunal has been unable to provide the applicant the same benefit of the doubt in the context of the Tribunal’s overwhelming adverse credibility findings and concerns that he attended any Bersih or any other anti-government or pro-reform rallies or demonstrations in the past at all. Accordingly, the Tribunal does not accept the applicant’s specific claims that he attended the 2010 and 2012 rallies as claimed. It finds that the applicant was not arrested, detained, interrogated, deprived of food or harmed by the police at [a] police station, as claimed, or any other police station. The Tribunal does not accept that the applicant was charged, issued a police report, summonsed or fined for his political opinion or any reason in the past. Furthermore, it does not accept that the applicant made a complaint against the police force to the authorities or that he relocated, even for a short period of time to avoid the authorities, in the past, as claimed. The Tribunal does not accept that the applicant was unable to provide any documentary or photographic evidence for the reasons claimed at the hearing because the Tribunal finds that the applicant’s overall claims about his political opinions were fabricated for migration purposes and not because the applicant had any genuine or urgent or personally-held fears of persecution based on his political opinion, imputed or otherwise, or that he was a genuine person of interest to the authorities for any related reason outlined in s5J(1)(a) in the past.
Based on these adverse findings about the applicant’s significant delay in applying for protection and his mutually unsupportive claims, cumulatively considered, that he had been harmed in the past based on his political opinion, the Tribunal finds that the applicant does not face a real chance of serious harm for his political opinion, from the police, the security agencies, the ruling party or judiciary or any other person or institution in authorities in the Federation of Malaysia. This is because the Tribunal does not accept the applicant had or has any genuine or urgent fears of persecution for returning to Malaysia, either at the time of application, now or into the reasonably foreseeable future.
For completeness, the Tribunal has considered whether the applicant faces a real chance of economic hardship amount to serious harm or a real risk of significant harm amounting economic hardship based on his political opinion. In the applicant’s written claims he stated he feared the Malaysian economy is currently bad and he cannot find a job in other states and that “I know they will however find me even if I move to other part of the country”. During the scheduled hearing, the applicant did not advance any claims that relocation was not possible based on either his political or economic circumstances; only that his claims that he is a person of interest throughout Malaysia for his political opinion. Given the Tribunal’s adverse credibility findings about the applicant’s political opinion, it does not accept that the applicant will face a real chance of economic hardship, amounting to serious harm, including serious harm non-exhaustively outlined in s5J(5), into the foreseeable future. Based on the same adverse credibility findings about his political opinions, the Tribunal does not accept that the applicant will face a real chance of significant harm or any kind, as a necessary and foreseeable consequence of being removed from Australia to his country of reference.
In this regard, the applicant does not have well-founded fear of persecution and does not satisfy s.36(2)(a).
The Tribunal made extensive adverse findings on credibility about the applicant’s critical or dispositive claims regarding past harm and harassment by the authorities to have been fabricated. Accordingly the Tribunal finds there are no substantial reasons based on the applicant’s claims, accepted or otherwise, that the applicant, as a necessary and foreseeable consequence of being removed from Australian to anywhere within his country of reference, the Federation of Malaysia, will face a real risk of significant harm of any kind based on his political opinion.
Cumulative Findings
At no stage did the applicant advance any other reasons such as his race or religion in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal finds there are no more residual claims, including based on the applicant’s economic circumstances, to be considered.
Based on the findings above, cumulatively considered, the applicant does not face a real chance of serious harm for any reason mentioned in s5J(1)(a), if returned to Malaysia, now or into the foreseeable future.
Having considered the applicant’s claims and accepted circumstances, both individually and cumulatively, 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 considered all the applicant’s claims and accepted circumstances, both individually and cumulatively, 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 of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s36(2)(aa).
Conclusions
For the reasons given above, the Tribunal finds that the applicant does not satisfy the criterion set out in 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.
Brendan Darcy
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 2216

20 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal

Natural Justice