1608338 (Refugee)

[2017] AATA 2737

1608338 (Refugee) [2017] AATA 2737 (7 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608338

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Linda Holub

DATE:7 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 September 2017 at 5:30pm

CATCHWORDS

Refugee – Protection Visa– Malaysia – Fears harm and being kidnapped – Forced into a Religious cult – Detained involuntarily – Unlawful for 2 years in Australia – Credibility Issues – Inconsistent evidence

LEGISLATION

Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J, 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(3), 36(2A) -(2B), 65,499,

Migration Regulations 1994, Schedule 2

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

1. 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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Malaysia, applied for the visas [in] May 2015. The delegate refused to grant the visas on the basis that the applicants are persons in respect of whom Australia has protection obligations.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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. [

5. 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

1. 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

1. All references to the applicant refer to the first named applicant.  The second named applicant is referred to as the second named applicant.

2. The issue in this case is the applicants have a well-founded fear of persecution in Malaysia for one or more of the reasons set out in the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. The written claims for protection are contained in the application forms submitted by the applicant to the Department of Immigration and Border Protection.  The Tribunal has before it the Department’s file relating to the application and the Tribunal’s file relation to the review application.  The Tribunal has also given consideration to the delegate’s decision record.

4. The following is a summary of claims and information provided in the Protection visa application:

   a.the applicants were forced to join a cult.

   b.they will face harm and will be threatened and kidnapped if they return to Malaysia.

   c.the applicant was forced to drink holy water and if he didn’t do so they threatened to hurt the second named applicant. The applicant tried to fight back but failed to do so after which they hit the second named applicant and threatened her with a knife until they did what was asked.

5. Following the delegate’s decision, [in]May 2016 the applicant applied to the Tribunal for a review of that decision. The Tribunal wrote to the applicant on 11 August 2017 with an invitation to attend a hearing on 29 August 2017.  The Tribunal took evidence from both applicants on that date. 

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicant’s online review application to the Tribunal indicated the language/dialect required was Mandarin consequently a Mandarin interpreter was arranged for the hearing.  The applicant’s response to the hearing invitation however, requested a Cantonese interpreter.

7. At hearing, the Tribunal considered information contained in the applicants’ written application indicating that:

   a.the applicant listed language/dialect in order of preference English - reading and writing and secondly Mandarin speaking, reading and writing[1].

   b.the second named applicant listed language/dialect in order of preference Chinese - speaking, reading and writing, secondly Cantonese speaking, reading and writing and thirdly English reading and writing[2].

   [1] DIBP file, folio 21, page 2.

   [2] DIBP file, folio 34, page 2.

8. The Tribunal confirmed with both applicants that they understood the interpreter and had no difficulties with the use of the Mandarin interpreter that had been provided. 

9. The applicants were represented in relation to the review their registered migration agent (RMA) who did not attend the hearing.

FINDINGS AND REASONS

Nationality

1. The Tribunal has sighted a photocopy of the applicants’ passports on the Department’s file and accepts they are nationals of Malaysia as claimed[3].

   [3] DIBP file, folio 36 & 37.

2. The Tribunal finds that the claims should be assessed against Malaysia for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). Similarly, the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).

Material under a public interest non-disclosure certificate

1. There are no non-disclosure certificates on the file.

CONSIDERATION OF CLAIMS AND EVIDENCE

Does Australia have protection obligations to the applicant under the refugee criterion?

1. In considering the above issues the Tribunal has had regard to the Department of Foreign Affairs and Trade’s Country Report on Malaysia, dated 19 July 2016.  The Tribunal has also had regard to the applicant’s written application to the Department and the oral evidence of both applicants to the Tribunal.

2. At hearing the Tribunal asked the applicant when he applied for protection. He stated he could not recall what year it was and thought perhaps it was 2015 although he did not recall what month. Previously the applicant stated that he arrived in Australia [in]April 2013. The Tribunal asked the applicant why it had taken him over two years to apply for protection. He stated when he came here he was not able to work and earn money and that he talked to an agent who said he could work if he applied for protection.  The Tribunal expressed to the applicant that the long delay between their arrival and the lodgement of the Protection visa application raised concerns whether their fear of harm was genuine.  The Tribunal alerted the applicant to the fact that courts have held that a delay of even three months can raise such concerns and asked him if you wish to comment. In response the applicant stated that when he came here he didn’t have anything. His wife was unable to sleep and he had to take care of her and did not have time to think about such things as applying for protection.

3. The Tribunal also asked the second named applicant about the preparation of the Protection visa application.  Initially she stated that they applied for protection in 2013. The Tribunal asked her to reconsider her response. She stated she only knows it was lodged in May. The Tribunal asked her how it was that she was aware of the month in which it was lodged but not the year. She stated she worked hard and she knows it was May. The Tribunal also put to the second name applicant its concerns regarding the delay in lodgement of the application. She responded that they did not have money to lodge an application any earlier.

4. The Tribunal outlined to the first named applicant it’s very serious concerns about the fact that they were prepared to remain in Australia illegally for two years.  The applicant was asked if he wished to comment. He stated that they did not have money and they heard from their friends they can get refugee status.

5. In regard to the manner in which the Protection visa application was prepared, the first named applicant stated that he told an agent about their circumstances and the agent prepared the application. The first name applicant said he could not confirm what was written in the application form and that he had not received a copy from the agent.  Although the second name applicant was with her husband when he was with the agent was unable to indicate how the application was prepared.

6. The Tribunal asked the applicant why he and his wife came to Australia. He responded that he heard from other people that Australia is a safe country and has a good social order. The second name applicant stated that while they are in Malaysia they entered a church were forced to join and told that the end of the world is coming.

7. The Tribunal asked the applicant what harm he and his wife suffered in Malaysia. He stated that ‘they suffered from this so-called religious stuff’. He stated that having returned from [another country][in]December 2012 they went to a shopping centre to buy clothes. While they were there they met a neighbour from the village who they had not seen for a long time and had a chat.  She said something about inviting them to have food together.  She was very insistent.  He was embarrassed to say no so they went along.  They arrived at her home at around 5-6pm.  By the time they got there they felt something was wrong.  When they entered the room, about seven to eight people were reciting verses.  He asked his neighbour what happened.  She said sorry, she doesn’t know.  They wanted to leave but those people stopped them from leaving.  The Tribunal asked the applicant in what way they were stopped.  He stated that they blocked the door and asked them to join the church.  The people threatened to kill his family.  These people said the end of the world will come soon and that the applicants should give them all their money and property.  He stated that after one day the applicants told these people they need to go home so they offered their ID cards.  After they gave their cards and contact details to them they were able to go home.

8. The Tribunal put to the applicant that it found his claims extraordinary and not very plausible, given he went with a neighbour to her home and was then held for 24 hours.  He responded that in Malaysia they did not have any money. The Tribunal indicated to the applicant that this did not help the Tribunal understand the circumstances he had described.  Moreover, the Tribunal put to the applicant that if he did not have money he would be of less interest to this cult group. The applicant then stated that they had some money but limited money.  The Tribunal gave the applicant a further opportunity to explain the situation that was central to his claims. He explained he had difficulty understanding everything because he was not very well educated and he prefers to speak Cantonese. The Tribunal confirmed with the applicant that he understood the Mandarin interpreter. He responded that he did and referred to his lack of education.  The Tribunal offered to explain its concern to him again and advised the applicant to take his time in considering his response.  The applicant again repeated they had limited money.

9. The Tribunal confirmed with the applicant that neither he nor his wife were harmed in any way. The applicant stated they were threatened and did not go out for a few days after that and his wife couldn’t stop being suspicious that someone will come.

10. The Tribunal asked the second named applicant what harm they had suffered before they came to Australia.  She stated that in December 2012 they were forced to join a religion.  She stated that it was about mid-Dec or almost the end of December.  She stated they met a neighbour while they were shopping and responded to her invitation to share food.  They were embarrassed to turn down the invitation because she was so warm-hearted.  After they shared food they went to her home to have a look although initially they refused.  After they entered they were not allowed to go home.  There were about eight people inside and they were holding some sort of booklet in their hands.  She stated these people told them the world is going to end.  The neighbour said you they be starved for a few days and won’t be able to go out.  The second named applicant stated they were locked up in the room.  A [child] who was very aggressive stood in front of them.  She stated that her husband was not beaten but they were not allowed to leave for a few days.  The Tribunal asked the applicant if she could be more specific about how long they were detained.  She stated they were held for about one week but she wasn’t sure and she does not like to remember.

11. The second named applicant stated that they were not given food for a few days.  Then they were told they had to bring new followers and went out to do so during which time they were monitored.  She stated they could not find anyone to join so they returned.  After that they were forced to donate money to the religion. When they were released they had to provide the captors with their home address.

12. The Tribunal put to the second named applicant its concerns about the claims and that is had some doubts regarding the plausibility of what had been described. She responded that there were only two of them and that they were outnumbered by their captors.

13. The Tribunal asked the applicant if he ever saw these people again before he and the second named applicant left Malaysia in March 2013.  He responded that he saw them one more time.  Someone came to pick him up and he saw those people near his home.  They drove a motor vehicle on the side of the road and stopped near his home.  He stated that he and his wife were afraid and they got into a taxi which his friend driving.  He asked his friend to take him away.

14. In response to the same question, the second named applicant stated that they saw them on one further occasion.  She stated that she and her husband were told that they must find other people to join this religion.  She said that this occurred near them home and they were threatened if they did not find anyone to join the religion.  She stated that’s why they came to Australia.  The Tribunal attempted to ascertain from the second named applicant how she and her husband managed to get away.  She responded by saying that she and her husband told them that they would get people to join the religion.

15. The Tribunal asked the applicant about his written claim that he was forced to drink holy water and that if he didn’t do so they threatened to hurt the second named applicant and that he tried to fight back but failed to do so after they threatened his wife with a knife. He responded that he does not know why the agent wrote that down and that what he’s saying now is correct. He was not forced to drink water but was asked to provide money or he would be killed.

16. The Tribunal also asked the applicant about his written claim that he was threatened with a knife. The applicant stated that he was not threatened with a knife but they attempted to hit him with a stick and threatened to kill him.

17. The Tribunal asked the first named applicant about the discrepancies between his oral evidence and the claims in the written application.  The applicant stated he does not know what the agent wrote down. The Tribunal confirmed with the applicant that he had signed the application submitted to the Department and suggested to him he therefore had some responsibility for the claims that were submitted. The applicant responded that he thought all the had to do was to explain to the agent what happened and to sign the form. The Tribunal suggested to the applicant that he could have asked the agent what had actually been submitted on his behalf.

18. The Tribunal asked the applicant what harm he fears if he were to return to Malaysia.  He stated that he is afraid that if he runs into those people again, they might kill him.  The Tribunal asked the applicant why would they want to kill him.  He stated that previously they demanded money and he and his wife subsequently left Malaysia.  He stated that if he and his wife met them again, he doesn’t know what will happen to them.

19. The Tribunal asked the applicant if any of his relatives in Malaysia had indicated to him that the people from the cult had come looking for him since he left Malaysia. The applicant stated that he speaks with his mother approximately every two weeks but that she does not live in the village that he had lived in. The Tribunal asked the applicant if any of his other relatives remained in the same village. He replied in the negative.

20. The Tribunal asked the second named applicant what harm she fears if she and her husband were to return to Malaysia.  She stated the people from the cult will take action against their family and look for them.  The Tribunal put it to the second named applicant that she and her husband had been away for four years and asked if they had taken any action against her family to date.  She stated that her father told her they came one more time but she does not know when.  The Tribunal asked the second named applicant when she was told this by her father. She responded that he is quite old and has [a medical condition]is not good.  The Tribunal put it to the applicant that her father may have been mistaken.  She responded that it was impossible for her father to have been mistaken because although he is old he would not mistake them. 

Conflicting Evidence of the Applicants

1. As required by the relevant provisions of the Migration Act the Tribunal put to the first named applicant its concerns about the number of discrepancies between their accounts of what happened in Malaysia arising in the oral evidence provided by him and his wife. The Tribunal explained that these discrepancies raised concerns regarding their veracity of the claims. The first named applicant was provided an opportunity to comment on specific concerns in relation to inconsistencies:

   a.the length of time they were held by their captors.

   b.what happened during the time of their captivity.

   c.how they came to be released

   d.what occurred when they saw their captors subsequently.

2. The applicant responded that his wife was very scared when these things happened and they happened some time ago. Consequently, she provided wrong information.

3. The Tribunal indicated to the applicant that given the overall discrepancies, the length of time it took for the lodgement of the Protection visa application, the inconsistencies between his written claims and the oral evidence that he and his wife provided and concerns about the implausibility of their claim, the Tribunal had serious concerns credibility of he and his wife which raised doubts about the veracity of his claims. When provide with an opportunity to respond the applicant asked if he can receive mail from the Tribunal directly as he wishes to cancel his nominated representative. The Tribunal explained the procedure for him to do so and asked him if there was anything further he wished to add. He did not.

Findings

1. Considering the evidence overall including the written claims and oral evidence provided by the first and second named applicants, the Tribunal had significant concerns about the veracity of the claims.  The Tribunal was not satisfied that the applicants suffered any of the claimed harm for the following reasons.

2. The applicants travelled to Australia in April 2013 but did not lodge an application for protection until [date] May 2015.  The Tribunal was not satisfied with the explanation as to why a protection application was not lodged earlier.

3. Further while some aspects of the applicant’s claims were corroborated by the second named applicant the Tribunal put significant weight on the fact that key elements of his claims were contradicted as outlined above.

4. The Tribunal considered the applicant’s submission that he was not aware of what the agent actually included in the written Protection visa application. The Tribunal was prepared to accept a divergence between the written and oral evidence for that reason.

5. However the extent of inconsistencies between the evidence of the first and second named applicants raised such serious concerns for the Tribunal regarding the credibility of the witnesses that the veracity of the claims was seriously undermined.  Consequently, the Tribunal did not accept that:

   a.the applicants were forced to join a cult.

   b.they will face harm and will be threatened and kidnapped if they return to Malaysia.

   c.the applicant was forced to drink holy water and if he didn’t do so they threatened to hurt the second named applicant. The applicant tried to fight back but failed to do so after which they hit the second named applicant and threatened her with a knife until they did what was asked.

6. In view of the above findings, the Tribunal is not satisfied that there is a real chance that the applicants will suffer serious harm if they return to Malaysia now or in the reasonably foreseeable future. 

7. Having considered the applicant's’ claims and their evidence, the Tribunal finds that there is no real chance that they will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if they return to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicants do not have a well-founded fear of persecution and are not refugees as defined in s.5H of the Act. Accordingly, the Tribunal finds that they do not satisfy the criterion in s.36(2)(a) of the Act.

Does Australia have protection obligations to the applicant under the complementary
protection criterion?

1. The Tribunal has considered the applicants’ claims under complementary protection. In view of the above findings, the Tribunal is not satisfied that there is a real risk that they will suffer significant harm if they return to Malaysia now or in the reasonably foreseeable future.

2. Having considered the applicants’ claims and evidence, the Tribunal is not satisfied that there is a real risk that they will be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return to Malaysia now or in the reasonably foreseeable future.

3. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicants do not satisfy the criterion in s.36(2)(aa) of the Act.

CONCLUSION

1. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

1. The Tribunal affirms the decision not to grant the applicants protection visas.

Linda Holub
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.

…