1608573 (Refugee)

[2017] AATA 2675

1608573 (Refugee) [2017] AATA 2675 (7 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608573

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE:7 November 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 November 2017 at 1:06pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Political opinion – Environmental protestor – Land clearing –Fear of detention – Witness credibility – Vague and inconsistent evidence – Delay in applying for protection

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Emiantor v MIMA (1998) 98 ALD 635

SZQNO v MIAC [2012] FCA 326

Iyer v MIMA [2000] FCA 52

Iyer v MIMA [2000] FCA 1788

SDAQ v MIMIA (2003) 129 FCR 137

Chan Yee Kin v MIEA (1989) 169 CLR 379

Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167

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 applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant appeared before the Tribunal on 27 July 2017, and again on 6 September 2017, to give evidence and present arguments.  The Tribunal was assisted in its inquiries by having been provided with a copy of the delegate’s decision record by the applicant at the point of application for review.

   APPLICANT IDENTITY

3. The applicant, who claims to be a national of Malaysia, applied for the visa [in] November 2015, and the delegate refused to grant that visa [in] May 2016. 

4. The applicant arrived in Australia [in] April 2014 as the holder of a [temporary] visa.  The Tribunal has had regard to the Departmental files and the information on which the decision of the delegate, relating to identity, was based.  The Tribunal has also had the advantage of interviewing the applicant in person in addition to reviewing the applicant’s Malaysian passport, which was issued in [Town 1] [in] April 2014, and bears the same identifiers as the applicant.

5. Accordingly, on the basis of the foregoing evidence, the Tribunal finds that the applicant is a national of Malaysia, and was born on [date].  Having established the applicant’s identity to the Tribunal’s satisfaction, the Tribunal finds that the receiving country with respect to the applicant is Malaysia.  The Tribunal also finds that the applicant does not have a current right to enter and reside in any other country other than Malaysia.  Accordingly, section 36(3) of the Act does not apply to him.

   RELEVANT LAW

6. The law relevant to this application for review is discussed at Appendix A to this Decision and the Attachment-  Extract from Migration Act 1958.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in Appendix A to this decision.

   RELEVANT COUNTRY INFORMATION

8. Country Information specifically referred to by the Tribunal in this decision is identified below.  The Tribunal has also had regard to the most recent DIBP Country Information contained in its COISS publication Malaysia: Common Claims, 1 September 2016 and DFAT Country Information Report – Malaysia, 19 July 2016.  In addition, the Tribunal has discussed the delegate’s summary of country information contained in the record of decision with the applicant at the hearing. 

   STATEMENT OF DECISION AND REASONS

9. The Tribunal notes that the applicant’s primary claim for protection is based on holding a well-founded fear of persecution for the essential and significant reason of his political views, specifically relating to his protests against land clearing by a business enterprise with close links to the ruling party in Malaysia, and that such persecution would apply to him if he was to return to Malaysia now, or in the reasonably foreseeable future. 

10. As discussed below, in Appendix A “Applicant credibility”, the Tribunal notes that, if it makes findings that an applicant’s claims are not credible, that may lead to the conclusion that the Tribunal does not believe the applicant had a genuinely subjective fear of harm.[1]  Judicial authority provides that, in such cases, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.[2]  The Tribunal also notes that it will not be sufficient that a person has a real chance of being persecuted only in a particular part of a receiving country. 

    [1]Emiantor v MIMA (1998) 98 ALD 635. In that case, the Court concluded that the Tribunal had assumed that the applicants had a subjective fear and therefore did not err. On appeal, the Full Federal Court (Emiantor v MIMA, unreported, Federal Court of Australia, Olney, Sundberg and Marshall JJ, 20 July 1998) found that although there was no express finding, in disbelieving the applicants’ evidence, the Tribunal must have concluded that they did not have a subjective fear.

    [2]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim.  On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case.

11. Under section 5J(1)(a), the real chance of persecution must relate to all areas of the receiving country.  A person will be taken not to have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country.  The circumstances in which effective protection measures are available to a person are set out in section 5LA of the Act. 

    APPLICANT’S CLAIMS

12. At the first hearing with the Tribunal on 27 July 2017, the Tribunal outlined for the applicant all those documents the Tribunal had in its possession relevant to his application for protection.  The Tribunal then asked the applicant if there was any information in those documents that should be changed.  The applicant responded in the negative.  The Tribunal also asked the applicant if he wished to add anything to his claims for protection.  The applicant responded in the negative.  The Tribunal then asked the applicant if he was content for the Tribunal to proceed on the basis of the information in its possession.  The applicant answered in the affirmative.

13. Also at the first hearing, the Tribunal read the summary of the applicant’s claims for protection as summarised in the Delegate’s decision, to the applicant with the assistance of an interpreter.  The applicant agreed that this summary of his claims was fair and accurate.

14. At the start of the second and final hearing with the Tribunal on 6 September 2017, the Tribunal reminded the applicant of his answers to the foregoing questions and noted that the applicant had made no further submissions to the Tribunal before the second hearing.

15. The Tribunal once again read the summary of claims to the applicant from the Delegate’s record of decision, with the assistance of an interpreter, and he agreed that these were a fair and accurate summary of those claims.

16. The applicant’s claims for protection, as summarised by the delegate in the record of decision are as follows:

    ·     He is an environmental protection volunteer from Malaysia

    ·     He is wanted by the authorities for protesting against the [named] family who include [officials] responsible for destroying the environment

    ·     His friend and fellow volunteer “[Mr A]” was imprisoned and tortured

    ·     From 2012 Malaysian was shrouded in a smoky haze causing many people with respiratory problems to wear masks

    ·     This was caused largely by fires on palm oil and rubber plantations in Sumatra, owned in part by the [named] family

    ·     [In] 2013 he and [Mr A], as well as many other environmental protection volunteers, protested in front of the government. They were beaten with the times and [Mr A] and [number] other volunteers were arrested, while he fled

    ·     [Several weeks later] the local police broke into his home and detained his wife. They tried to make her tell his whereabouts as he was in hiding. She was detained for [number] days

    ·     [In] 2015 his friend [Mr A] was visited by his family imprisoned. He was very weak and emaciated and had been beaten up

    ·     He decided to flee to Australia for his own safety

17. The Tribunal discussed the foregoing claims with the applicant at the second hearing.  The Tribunal notes the applicant’s stated belief that he is under continuing threat by the Malaysian state if he was to return to Malaysia. 

    DECISION UNDER REVIEW

18. The reasons given by the delegate for not granting the applicant’s application for protection are contained in the delegate’s record of decision at page 9.  Firstly, the delegate found that the applicant’s refugee criteria based claims were vague, lacking in details, and included no supporting evidence.  As a result, although not expressly stated in as such by the delegate, the implication is that the delegate found those claims to lack credibility. 

19. The delegate further found that the applicant’s delay in seeking protection between [date] April 2014 (when he arrived in Australia) and [date] November 2015, when he applied for protection, was not adequately explained in the applicant’s application for protection.  Accordingly, although once again not expressly stated, the delegate appears to have drawn an adverse inference about the applicant’s credibility and the credibility of the applicant’s claims for protection because of the failure to apply for protection at the first reasonable opportunity.

20. On this basis, the delegate found that the applicant did not hold a well-founded fear of persecution in Malaysia, now or for the reasonably foreseeable future, for the purposes of section 5H and 5J(1)(a) of the Act, as these relate to section 36(2)(a) of the Act.  

21. The Tribunal notes that, in addition to this finding relating to the refugee criteria, the delegate also found that there was no real risk of significant harm to the applicant under the complementary protection considerations at section 36(2)(aa) of the Act. 

22. The Tribunal has discussed these delegate findings, together with the delegate’s summary of relevant country information, with the applicant at the hearings. 

    PROCEEDINGS BEFORE THE TRIBUNAL

23. The Tribunal notes that following the hearing on 27 July 2015 (at which the applicant confirmed that his documents and claims were accurate and complete), no further submissions were received after this from the applicant before the second hearing on 6 September 2107. 

24. At the second hearing, the Tribunal began by asking the applicant for details concerning his family and relationship status.  The Tribunal noted that the applicant provided considerably more detailed information, in response to careful questioning, than that which was provided by the applicant in his original application for protection.

25. In particular the Tribunal notes that in answer to Question 43 in the applicant’s Form C, which requires details the applicant’s immediate family, the applicant listed his father and mother, his wife and a single child.  On further questioning by the Tribunal, it emerged that the applicant was one of [number] siblings, all currently living in Sarawak (none of whom were mentioned in the applicant’s application for protection).  It further emerged that the applicant was the father of [number] children, one of whom is currently a student in Malaysia while the other is a student in [country] (only one child having been listed in the original application for protection).

26. In addition, the Tribunal was required to question the applicant closely in order to determine the applicant’s current relationship status.  According to the applicant, he is currently in a relationship with a woman who is resident in Australia.  This relationship has been in place for at least one year.  The Tribunal notes that, although the applicant states he has not expressly told his spouse, currently living in Malaysia, that he has “moved on”, he believes his own extended family is aware of this. 

27. When the Tribunal expressed its concern about the applicant’s lack of candour in both his original application for protection and his failure to correct this these points of detail in his original application for protection at either the first or second hearings with the Tribunal, the applicant responded by posing the question: “Are you asking me if this is significant?”.

    CREDIBILITY CONCERNS

28. Tt this point in the hearing the Tribunal reinforced with the applicant the importance of answering all questions relevant to his application for protection truthfully.  The Tribunal indicated to the applicant that his demeanour and manner of answering straightforward questions with an apparent lack of candour about his relationship status caused the Tribunal to question whether he was answering its questions truthfully.

29. The Tribunal asked the applicant to explain the details of his environmental protection volunteering while living in Malaysia.  The applicant responded that he was part of a group of environmental protection volunteers.  The Tribunal indicated to the applicant that he had provided inadequate details of his involvement as an environmental protection volunteer.  In response the applicant stated that his activities occurred a long time ago and that he rarely attended, but that he was committed to environmental protection.  The Tribunal notes that the level of detail provided by the applicant is not indicative of the applicant relating genuine lived experience.  Rather, the lack of relevant detail and the vagueness of the applicant’s responses suggests to the Tribunal that the applicant has never been an environmental protection volunteer in Malaysia.

30. The Tribunal asked the applicant about how he came to know of the circumstances of his friend “[Mr A]’s” arrest, detention and mistreatment by Malaysian authorities, given that the applicant claims to have been in hiding following the same protest at which his friend had been arrested.  The applicant claimed that he had hidden in a nearby forest and maintained infrequent contact with both his family and the family of [Mr A] during this period of seclusion.

31. The Tribunal asked the applicant for details about whom it was in [Mr A]’s family that he had received information about [Mr A]’s detention and mistreatment.  In response, the applicant said that it was a big family, that [Mr A]’s family was doing well, and that someone in that family must have told the applicant’s wife about [Mr A]’s detention and mistreatment.  The applicant conceded that he had no personal knowledge of any of these facts.

32. According to the applicant, the protest to which he refers in his claims for protection occurred [in] 2013, near [Town 2].  He claims that [a few weeks later] his wife was taken into detention and questioned for [number] days before being released.  The Tribunal raised its concerns with the applicant about his delay in seeking protection in the any country, and continuing to remain in Malaysia until April 2014.  The Tribunal also expressed concern at the length of time it took the applicant to apply for a passport, given that he was not issued with a passport by Malaysian authorities until [date] 2014. 

33. The Tribunal expressed its concern that, given that the protest occurred [in] 2013;  given also that the applicant asserted in his application for protection that he was wanted by authorities in connection with his involvement in an environmental protection protest leading to the applicants wife being taken into detention for [number] days of questioning, the facts explained by the applicant were both illogical and inconsistent.   They were illogical and inconsistent in the sense that an applicant wanted by Malaysian authorities would not be issued with a passport by those authorities in connection with a protest.  The applicant’s evidence was further illogical in the sense that it would be reasonable to expect a person in flight from authorities to depart at the earliest possible opportunity, rather than remain in hiding (either close to home or otherwise) in that country when there was a real possibility of leaving, as the applicant eventually did.  

34. The Tribunal also notes that, despite the applicant’s spouse having been detained by the authorities in connection with the applicant’s claimed protesting activities and the applicant having at least one dependent child living in the same home, it is not logical that the applicant would consider leaving his dependent family in harm’s-way, following his wife’s release in [in] 2013, as indeed they continue to so do.

35. The Tribunal raised with the applicant the positive absece of corroborating evidence surrounding environmental protests in or around [Town 2] [at that time in] 2013 or at any time.  In the absence of any evidence being provided to the Tribunal by the applicant, the Tribunal had endeavoured to find some reference to such a protest by means of an Internet search.  The Tribunal notes that there have been a number of environmental protests in Malaysia that have received media coverage, but it has been unable to locate any online source referring to such a protest. This

36. The Tribunal discussed its concerns with the applicant that he had not provided any corroborating evidence in the form of witness statements or witnesses or online media material to substantiate the core claim made by the applicant.  The Tribunal reminded the applicant that he had been notified [in] May 2016 that his application for protection was rejected, in part, because of this lack of corroborating evidence.  Accordingly the Tribunal would have expected a reasonable person in the applicant circumstances to have made some attempt to gather evidence that might substantiate his core claim, namely, that some form of environmental protest had occurred in or around [Town 2] [in] 2013.  The Tribunal notes that the applicant was unable to provide any assistance in response to its concerns.

37. Accordingly, the Tribunal finds that the applicant has provided no supporting evidence to support his core claim to have been involved in an environmental protest in or around [Town 2] [in] 2013.  Given that the applicant has been on notice of the potential significance of his lack of corroborating evidence since at least [date] May 2016, and has failed to provide any such evidence, the Tribunal draws an adverse inference about the lack of corroborating evidence in terms of the credibility of the applicant’s core claim.

1. The Tribunal raised questions with the applicant about his delay in acting upon his fear of harm in Malaysia following the [date] 2013 environmental protest that is referred to in his claims.  The Tribunal notes that the applicant did not apply for a passport at the first reasonable opportunity to allow him to leave Malaysia, and that the passport was only issued to him [in] 2014.  The applicant stated at the hearing, that this was done on his behalf by a travel agent with whom the applicant had made arrangements to depart for Australia.

2. The Tribunal also asked why it was that the applicant did not apply for protection immediately on his arrival in Australia.  The applicant stated that he had no knowledge of protection visas at that stage, and that he did not have a good enough grasp of the English language.  On further questioning, the applicant conceded that he did not turn his mind to the question of his need for protection on arrival in Australia.  

3. The Tribunal asked the applicant why it was that he did not seek assistance to regularise his visa status after his temporary [visa] expired [in] July 2014.  The Tribunal asked the applicant why he did not approach a migration agent or a travel agent for assistance at this point in time.  The applicant stated that he did not turn his mind to it.  The Tribunal asked the applicant why he did not approach the Department or a lawyer to obtain assistance to regularise his visa status after he became unlawful in Australia the applicant stated that his lack of courage and lack of language skills make this impossible.

4. The Tribunal asked the applicant why he did not consider seeking refuge in either Indonesia or Thailand or Singapore given that these countries were much closer to his home location than Australia.  The applicant stated that he was told by a friend in Malaysia that Australia is close. The applicant also stated that members of his family told him that it was easy to get a Visa for Australia.

5. The Tribunal asked the applicant how it was that he planned to support himself in Australia, given that he arrived on a [temporary] Visa with very little money.  The applicant stated that he was financially supported by contributions from family members.

6. The Tribunal asked the applicant what had changed in November 2015 so that he was able to apply for a Protection visa [in] November 2015.  The applicant stated that he discovered from a friend (whose name the applicant could not remember) that protection visas were available.  The applicant stated that this friend helped him to complete his application for protection.

7. In this respect the Tribunal notes that, in answer to Question 102 in the applicant’s Form 866C “Did you receive assistance from an interpreter or anyone else to complete this application?”; the applicant responded “Yes”.  The applicant further responded in the same question that the statements and other information contained in his application Form was read back to him in his own language.

8. Accordingly, the Tribunal finds that the applicant was aware of the content of his application for protection in the first instance and should also have been aware that significant aspects of his personal details, discussed above, were misstated in that Form at the time that it was completed.

9. The Tribunal finds that the applicant has provided no reasonable explanation as to why the incorrect and missing information was not included by the applicant in his original application for protection in the first instance.  The Tribunal further finds that the applicant’s failure to correct this missing and incorrect information, after having been repeatedly invited to do so by the Tribunal at both hearings is not reasonable in all the circumstances.  

10. The Tribunal finds that the applicant’s vague, illogical, inconsistent and incomplete evidence contained both within his original application for protection, and as provided to the Tribunal at hearing, is not consistent with an applicant genuinely holding a well-founded fear of persecution.

11. On the basis of the applicant’s vague, illogical, inconsistent and incomplete evidence in connection with his application for protection referred to above, the Tribunal finds that the applicant’s claims lack credibility.  In addition, the Tribunal is not, in all respects, satisfied that the applicant is a witness of truth.

12. Having found that the applicant’s claims lack credibility on the basis that they are vague, illogical, inconsistent and incomplete, the Tribunal finds that the applicant does not genuinely hold a well-founded fear of persecution for the essential and significant reason of his political views, specifically relating to his protests against land clearing by a business enterprise with close links to the ruling party in Malaysia, and that such persecution would apply to him if he was to return to Malaysia, or for any other reason, now or in the reasonably foreseeable future.

13. In light of these considerations, the Tribunal has considered each of the integers of the applicant’s claims for protection, together with the applicant’s evidence to the Tribunal, individually and then cumulatively.  On the basis of these considerations, the Tribunal finds that, taken at its highest, the applicant’s claims and evidence lack credibility, are vague, illogical, inconsistent and incomplete as discussed above, and do not reach a level that demonstrates the applicant faces either a real chance of serious harm, or a real risk of significant harm, now or for the foreseeable future, if he were returned to Malaysia.

    FINDINGS AS TO CLAIMS CONSIDERED IN THIS REVIEW

14. On the basis of the foregoing factual findings and the country information referred to above, the Tribunal finds that the applicant has not demonstrated that there is a real chance that, if he was returned to Malaysia, he would experience persecution for the essential and significant reason of his political views, specifically relating to his protests against land clearing by a business enterprise with close links to the ruling party in Malaysia, and that such persecution would apply to him if he was to return to Malaysia, or for any other reason, now, or in the reasonably foreseeable future.  The Tribunal further finds that the applicant has failed to demonstrate that he would experience serious harm or systematic and discriminatory conduct of the type required of section 5J(4) of the Act if he were to be returned to Malaysia now or in the reasonably foreseeable future. 

15. Accordingly, the Tribunal finds that there is not a real chance that, if the applicant were returned to Malaysia, he would be persecuted for the essential and significant reason of his political views, specifically relating to his protests against land clearing by a business enterprise with close links to the ruling party in Malaysia, and that such persecution would apply to him if he was to return to Malaysia, or for any other reason, now, or in the reasonably foreseeable future, for the purposes of 36(2)(a) of the Act (the refugee criteria). 

16. The Tribunal has also considered the applicant’s claims in light of the complementary criteria at section 36(2)(aa) of the Act.  On the basis of the foregoing, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk that the applicant would suffer significant harm now, or in the reasonably foreseeable future. 

17. The Tribunal has considered the applicant’s particular protection needs in light of his claims, and the Tribunal is satisfied that there is less than a real risk of significant harm if the applicant was removed from Australia to Malaysia, such that Australia’s non-refoulement obligations would be engaged.  Accordingly, there is not a real risk that the applicant will suffer significant harm, and the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations for the purposes of section 36(2)(aa) of the Act. 

18. Based on all of the foregoing, the Tribunal is satisfied that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that he will suffer significant harm.  Therefore, the applicant is not a person in respect of whom Australia has protection obligations as outlined at section 36(2)(aa) of the Act.

    CONCLUSION

19. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

20. 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).

21. 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

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Dr Colin Huntly
    Member

    
    

    APPENDIX A – RELEVANT LAW

    60.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, the applicant 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.

    Refugee criterion

    61.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.

    62.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.

    63.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).

    64.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 below.  

    65.The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[3]

    [3]Chan Yee Kin v MIEA (1989) 169 CLR 379.

    66.If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a).  Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

    Complementary protection criterion

    67.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 a protection 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 the applicant 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’).

    68.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1).  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.  ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

    69.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

    70.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.

    Applicant credibility

    71.The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[4]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. 

    [4]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

    72.In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[5] Foster J stated that “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.”[6]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 

    [5](1996) 40 ALD 445.

    [6]At 482.

    73.The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[7] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[8]

    [7](1996) 185 CLR 259.

    [8]At [25].

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    74.The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[9]  Nevertheless, as Burchett J counselled,[10] it is necessary to:

    [9][1997] FCA 1198 ( accessed 15 October 2017).

    [10]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    75.The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[11]  On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[12]  Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.  However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[13]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[14]  The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[15]

    [11]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 15 October 2017).

    [12]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

    [13]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [14]MIMA v Rajalingam (1999) 93 FCR 220.

    [15](1999) 197 CLR 510 at [191].

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    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.

    …