1610032 (Refugee)

1610032 (Refugee) [2017] AATA 2873 (7 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610032
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Melissa McAdam
DATE:7 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 November 2017 at 12:15pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Economic – Debts owed – Fears harm from loan sharks – Targeted by Triad member for extra-marital affair – Credibility issues– Inconsistent and changing evidence
LEGISLATION

Migration Act 1958, ss 5, 5H, 5J, 5K-LA, 36, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa [in] May 2016.
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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information provided by the applicant in his Protection visa application:
a.The applicant was born on [date] in [Town 1], Perak, Malaysia. He submitted his Malaysian passport issued in [Town 2] in [2014].
b.He is a Buddhist.
c.He married in April 2006. His wife [and children] are living in Malaysia.
d.He lived in [a certain area], in [Town 2], Perak.
e.He worked as [an occupation] of a [workplace] in [Town 1] from March 2009 until May 2014.
f.He fell in love with a woman who would often have dinner by [herself]. They started a relationship together. Some incidents started happening. Paint was spilled on the [workplace] door and wall. His home was disturbed by people breaking a window, putting mud in his door lock and writing intimidating vulgar words.
g.A friend told the applicant that the woman he was having an affair with was a mistress of a person in a triad organisation.
h.People tried to kidnap and kill the applicant’s children.
i.He asked the police for help but they ignored him.
j.The applicant’s family was angry and disappointed in him. His wife wanted to divorce him but he would not agree to a divorce.
k.The applicant was stressed and tried to commit suicide a few times.
l.He tried to move but they can find him.
m.This went on for a year and the applicant decided to come to Australia.
n.He departed Malaysia lawfully [in] June 2014. He arrived in Australia [in] June 2014 on a [temporary] visa.
o.He fears the triad organisation will try to harm him or his children if he returns to Malaysia.
Delegate’s Decision
The Department did not interview the applicant.
The Delegate found that the applicant’s fears did not come within the reasons in s.5J(1)(a) of the Act.
The Delegate was satisfied that the Malaysian authorities could protect the applicant from the harm he feared so that there was no real risk it would occur.
Information to the Tribunal
The applicant appeared before the Tribunal, differently constituted, on 10 February 2017 and 23 February 2017 to give evidence and present arguments. The Tribunal (as currently constituted) has listened to a recording of these hearings. At the brief hearing on 10 February 2017 there was preliminary discussion about the Protection visa criteria and a discussion to arrange a further hearing date. The following is a summary of the information presented by the applicant at his hearing on 23 February 2017:
a.The applicant works in Australia and is sending money back to his family in Malaysia. He ran a [business] in Malaysia for about 5 years. He operated it until he came to Australia. His father closed the [business] last year because of the bad economy.
b.The applicant lived at his house in Malaysia for his last [number of] years there.
c.The applicant was helped to write his Protection visa application by a workplace friend. A Migration Agent helped the applicant fill in the form. The applicant paid the Agent $AUD [amount]. The information in the form is all true and correct.
d.The applicant came to Australia on a [temporary] visa valid for [number] months. It expired in September 2014. He applied for a Protection visa about one year later. He did not know he was eligible for a Protection visa before this.
e.The applicant’s Agent withdrew the applicant’s Protection visa application because of a problem with money. The applicant then later reapplied for a Protection visa. The applicant is not sure if the information in his initial Protection visa application is the same as in his current one. He told the same story but is not sure if it was simplified. He has ceased his contact with the Agent since his application was lodged. He has no documents or even a receipt from the Agent.
f.The applicant has had no contact or dealings with the police in Malaysia.
g.He still has a lot of unpaid debts in Malaysia. If he returns to Malaysia he will be harassed by gang members. He owes around [amount] ringgits [approximately $AUD[amount]].
h.He borrowed the money three to four years ago, in about 2013/4, to pay debts from the [workplace] and some gambling debts. He signed documents but the gang members kept all documents. He has no documents to prove the debts, except bank loans and credit card loans.
i.The money he is sending to Malaysia from Australia is being used to pay off the debts. He has paid off about [amount] ringgits. He borrowed the money 1 to 1.5 years before he left Malaysia.
j.It cost him about [amount] ringgits to travel to Australia. His wife borrowed the money for him.
k.He came to Australia because he has to pay at least [amount] ringgits to the gang leaders and he had to leave because of threats from the gang leaders. There have been calls to threaten himself and his family. After a half year the threats have become less intense because he paid some money. He only received threats. The first time he was threatened was one to two months before he left Malaysia.
l.He was also punched and had paint poured on his [workplace].
m.He had some [problems] before this, with women. He had an affair with a woman who told him he could borrow money from gang members so he had an affair with her. He started the affair over two years before he left Malaysia. The affair lasted [a few] months. She introduced him to illegal board gambling and gang people. It was on-line gambling at her house. She was the middle person to get people to gamble. The applicant gambled away [amount] ringgits. She was connected to the gang head.
n.The applicant’s wife took out a bank loan for [amount] and borrowed other money. The applicant sold his car. So he only had a final debt of [amount] ringgit. With the money his wife borrowed which is still outstanding it will be about [amount] ringgits in total. His house in Malaysia is not yet paid off. The house is worth about [amount] ringgits. His parents and his wife’s parents own houses. His wife works as [an occupation] in Malaysia.
o.He cannot run a [business] in Malaysia anymore because of the bad economy.
p.His story in his Protection visa application is different because his story was overstated by the person who wrote his story down.
q.The applicant can provide bank documents from Malaysia about the loans to himself and his wife.
r.The applicant misunderstood before whether the Tribunal was asking him if his family moved not just he. He moved to some friends’ houses. He also misunderstood the question about the police. He did have contact with the police in Malaysia.
s.There were no attempts to kidnap and kill the applicant’s children, just threats to do so. And they also appeared outside his children’s school.
t.The applicant’s wife dealt with paying the [workplace] staff from the moneys he sent back to Malaysia.
u.It is not possible for the applicant to return and manage the debt. His wife does not receive enough salary and his father does not work.
v.He cannot go to another city, like Kuala Lumpur, to find work and pay off the debt because it is really hard to have a job and to make money, especially for an inexperienced worker. It is difficult to make a living because of the low salaries and high living expenses. He will not make enough money to pay off his debts.
w.He regrets what he did and wants a second chance in Australia.
x.The police and judicial system in Malaysia is a mess. The Malaysian government will not provide him with protection. They will not consider his problems are ones they should help him with.
y.Malaysia is a small country . He will live under fear every day. The gang members may post his picture.
z.The Tribunal informed the applicant about a non-disclosure certificate on the Department’s file in relation to three folios; and that in the Tribunal’s view, the certificate is invalid as it related to the postage of the applicant’s decision and a checklist which are not confidential information. The Tribunal informed the applicant that the documents had no bearing on its determination of the applicant’s claim. The Tribunal invited the applicant to respond. He asked if he needed to do anything. The Tribunal advised him no, as it believed the Department made a mistake placing the certificate on the file.
In March 2017 the applicant submitted his marriage certificate; some bank statements; some financial transaction records; council documents relating to his [business] in Malaysia; letters from banks in Malaysia; bank loan documents to his wife; and a letter from a solicitors’ firm in Kuala Lumpur.
The applicant appeared again before the Tribunal, as currently constituted, on 14 September 2017 and 10 October 2017 to give further evidence and present arguments. The following is a summary of the information provided by the applicant at these hearings:
a.The applicant confirmed that all the information in his Protection visa application is correct.
b.He cannot return to Malaysia because his life will be in danger because he has not paid back money to loan sharks. He owes them [amount] ringgits. He borrowed the money for gambling. There are [number of] groups he owes money to. The people are ‘[names]. They are the only ones he owes money to. They are the loan shark bosses. He met them through his on-line gambling on ball games. He would meet the loan shark bosses from time to time when he needed to borrow money. They would discuss how much he would borrow and how he would pay them back. He had to make monthly payments at 18% interest.
c.He started playing the online ball game gambling more than ten years ago.
d.He played the online gambling games on his computer at his home. Sometimes he also played them on his mobile phone.
e.He first started borrowing money from loan sharks about ten years ago. They would lend him money because he had a business and his family was well off. In the beginning he gave them security of a house title and [an item] for the loans. He signed mortgage papers in relation to the house. The house belonged to his [relative] and the loan sharks have now taken it, after she and the applicant signed the papers for it. His [relative] had been living in the house. She was angry and sad that the house was taken but it cannot be changed. Every month the applicant works to pay her back a few hundred dollars. His [relative] loves him very much and had given him the house title to use as a security document to help him.
f.Unknown people from the mafia harassed the applicant. This happened in 2013 or 2014, two to three months after he borrowed money which he could not pay back. They came to his home. They told him if he didn’t pay back the money they will take him somewhere. They also hung around his child’s school to show they could take the child. One time, in 2014, they hit the applicant. This happened near to the applicant’s [business].
g.They took possession of the applicant’s [relative’s] house around the end of 2013 and beginning 2014 because the applicant and his [relative] had signed the paper.
h.They continued to lend the applicant money because they believed he had a good business and other assets.
i.The applicant owned his [business] but he rented the premises where the [business] was located.
j.A women who belonged to the loan sharks approached the applicant around nine months before he left Malaysia, and enticed him to borrow more money so he became more deeply in debt. She approached the applicant when he had a business meal and introduced herself to him. When the applicant lost money she said she would open an account for him for [amount] ringgits. She introduced the applicant to another group, led by ‘[name]’. The loan sharks would lend him money even though he was losing it because they expected him to borrow from other people, even banks, to repay them.
k.The woman worked in a [workplace]. Her name was [name]. One month after the applicant met the woman she introduced him to the loan shark boss. She received a commission on the money the applicant lost after he borrows from the loan shark.
l.The applicant was in a relationship with the woman for about half a year. His wife found out after a few months. The applicant told her because things had become serious as he owed too much money. He and his wife argued and she wanted a divorce. She chose to forgive him and did not divorce him.
m.Sometimes the applicant works in Australia and sends money to the people he owes in Malaysia. He transfers it to his wife’s account and asks her to give it to certain people. She does so by bank transfer or in cash. The loan sharks use bank accounts.
n.He hasn’t yet paid back a [portion] of what he owes in Malaysia. Two of his creditors are known to his family and he has paid them back [amount] because otherwise they would go to his home and harass his wife. The other three creditors are not known to his family and he has not paid them back. They would not approach the applicant’s wife or family.
o.The Tribunal put to the applicant that the documents he submitted all involved loans from banks, not loan sharks, and that this indicated his financial difficulties were with the banks. The applicant responded that his issues with the bank are nothing, his biggest problem is with the loan sharks.
p.The Tribunal put to the applicant that if he cannot repay his bank loans then the banks may commence legal proceedings against him but this may not amount to serious or significant harm. The applicant responded it will cause him psychological harm.
q.The Tribunal put to the applicant that the documents he submitted indicate he has a car in Australia and that he made a payment to [a department store] of over $[amount]. He responded he doesn’t have a car but his friend used the applicant’s Driver's Licence to register a car, because his friend did not have a Driver's Licence. The [department store] payment occurred when a friend asked him to buy [an item] for the friend in [another city].
r.The Tribunal asked the applicant what the table of payments he had submitted referred to. He responded it was a list of the people he owed money to. ‘[Name]’ is a friend who lent him money. ‘[Name]’ is the applicant’s wife’s [relative] who he owes money to. ‘[Name]’ is [nickname]’, the loan shark. ‘[Name]’ is the collector for another loan shark. ‘[Name]’ is another friend of the applicant. At the top of the list was ‘[Relative]’. The applicant confirmed that the list of people he owed money to consisted of [relatives], [friends] and [loan] sharks. He then stated that there are [number] other loan sharks who are not listed as he has not paid them back anything.
s.The Tribunal asked the applicant about the solicitor’s letter which he submitted, which referred to a court summons and judgment against him. The applicant responded that this was about his credit card and personal credit. They issued a legal letter to tell him he is in a black list and cannot go abroad, and that he is bankrupt.
t.The Tribunal asked the applicant if there was any other reason he did not want to return to Malaysia and he responded that he has been in Australia for a long time and is no longer familiar with life in Malaysia. He has been in Australia for three years. He was in Malaysia for [number of] years. If he can stay in Australia for a few more years he can earn the money to pay back his creditors in Malaysia, so then he will return to Malaysia and be reunited with his family there.
u.The Tribunal asked the applicant why there was no mention of loan sharks or debts in his initial Protection visa application. He responded that was because when he talked he did not know how it was written.
v.The Tribunal asked why he had stated at his previous Tribunal hearing that he gambled on computers at the woman’s house. He responded that he did, many times.
w.The Tribunal asked the applicant why he could not return to Malaysia and work to pay off his debts there. He responded that he would need at least [amount] ringgits a month to survive in Malaysia.
x.He doesn’t know what to expect if he returns to Malaysia, the mafia can do anything.

CONSIDERATION OF CLAIMS AND EVIDENCE

The applicant submitted his Malaysian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Malaysia. The Tribunal assesses the applicant’s claims against Malaysia as his country of nationality and receiving country.
As stated above there is a non-disclosure certificate on the Department’s file. As put to the applicant the certificate is of doubtful validity. In any event the Tribunal does not consider the folios covered by the certificate have any relevance to its determination of the applicant’s review application. The Tribunal has no regard to these folios in making its decision.
Credibility
The applicant’s claims have varied significantly over the course of his Protection visa application process. Despite confirming to the Tribunal that all the information in his Protection visa application was correct, the applicant’s initial claims in his Protection visa application statement are markedly different from the claims he presented to the Tribunal. Further, details of core claimed events and people have also differed substantially in his evidence before the Tribunal.
In his Protection visa application the applicant presented a story of being harmed and threatened in Malaysia for having an adulterous relationship with the mistress of a triad gang member. However to the Tribunal he claimed he feared loan sharks in Malaysia because he borrowed money from them that he was unable to pay back. The Tribunal considers the two sets of claims contradictory. The applicant’s explanations for the change was that he did not know what was written in his Protection visa application, or that his claims were overstated in the original Protection visa application. Given he was the source of the information for the Protection visa application the Tribunal considers his explanation does not reasonably address why something so different would be put forward in his application. The Tribunal considers that the change in the applicant’s claims seriously undermines the reliability of his evidence. The Tribunal finds that the claims presented in the applicant’s Protection visa application are not credible. The Tribunal does not accept that he is being harmed or threatened in Malaysia because he had an affair with the mistress of a triad gang member.
The applicant gave inconsistent evidence in his Tribunal hearings about his dealings with loan sharks in Malaysia.
For example he gave inconsistent evidence about when and where he started gambling in Malaysia. In his Tribunal hearing of 23 February 2017 he stated that he was introduced to on-line gambling by the woman he had an affair with about two years before he left Malaysia, and that he did the on-line gambling at her house. However at his Tribunal hearing on 10 October 2017 he stated that he started online gambling in Malaysia about ten years ago and that he did this on his computer at his own house, or on his mobile phone. It was only when the Tribunal asked him why he had previously stated that he did the on-line gambling at the woman’s house that he then stated he also did so there.
The applicant also gave inconsistent evidence about when he borrowed money from the loan sharks. In his Tribunal hearing of 23 February 2017 he stated that he borrowed money from loan sharks in about 2013 or 2014, and that he borrowed the money 1 year or 1 and half years before he left Malaysia. He also stated that he was introduced to the loan sharks by the woman he had an affair with. However at his Tribunal hearing on 10 October 2017 he stated that he started borrowing money from loan sharks ten years ago, a long time before he had the affair with the woman.
The applicant provided inconsistent evidence about the woman he claimed he had an affair with. In his Tribunal hearing of 23 February 2017 he stated that his affair with the woman started over two years before he left Malaysia and lasted only [a few] months. However at his Tribunal hearing on 10 October 2017 he stated that he was first approached by the woman about nine months before he departed Malaysia and that their relationship lasted about half a year.
The applicant gave confused evidence about who he owes money to in Malaysia. At his hearing on 10 October 2017 the applicant referred only to owing money to loan sharks, and to his wife taking out loans for him. At his Tribunal hearing on 10 October 2017 he stated he owed money to [number] groups in total. He named [number] people and described them as loan shark bosses. He stated they were the only people he owed money to. However later in the hearing he described the list of people he owes money to as including [relatives], [friends] and [loan sharks], but increased this to [number] loan sharks in his next statement. He also described one of the people he had initially called a loan shark, namely ‘[name]’, as a friend of the applicant, not a loan shark. At another time in the hearing he referred again to having only [number] creditors, [number] of whom were known to his family and [number] of whom were not. Further confusion arises with the amounts he has claimed to have repaid to the loan sharks. He stated that he had repaid the loan sharks about [amount] ringgits. However in the table of payments he submitted to the Tribunal ‘[amount]’ is recorded as the total payment to one of the people he described as a loan shark, [name], and ‘[amount]’ to the other person described as a loan shark, [name]. The Tribunal notes the applicant further stated he had not paid the other [number] loan sharks anything. So in total he has repaid on [amount] to loan sharks, not [amount] as stated. The total payments recorded in the table do add up to just over [number], but the bulk of this, namely about [amount], is to people the applicant described as friends and relatives. The Tribunal finds the applicant’s lack of clarity about the people he owes money to, and the amounts, undermines the reliability of his evidence to owe money to loan sharks.
In view of the above concerns about the significant inconsistencies in the applicant’s evidence, and the absence of any mention of loan sharks in his initial Protection visa application, the Tribunal does not accept that the applicant owes money to loan sharks in Malaysia who have harmed or threatened him.
The applicant submitted many documents relating to loans from banks in Malaysia including a solicitor’s letter regarding a summons and judgment against him in relation to a credit debt he has with a Malaysian bank, and a reference to him being bankrupt. The applicant also spoke of he and his wife taking out loans from banks in Malaysia. In the Tribunal’s view, the applicant’s description of losing his [relative’s] house as surety for some of his debt, his [relative’s] wiling involvement in allowing her house to be security, and the signing of mortgage papers, aligns much more readily with bank loan events than involvement with illegal loan sharks. As put to the applicant the documentary evidence submitted by the applicant strongly indicates he had financial difficulties in Malaysia and that he took out loans from banks, friends and relatives to try to deal with his difficulties. In the Tribunal’s view there is no reliable evidence that the applicant also borrowed money from loan sharks.
The Tribunal accepts the applicant’s claims that he has outstanding loans from banks, friends and relatives in Malaysia. The Tribunal does not accept the applicant took out loans from loan sharks in Malaysia.
Fear of Harm in Malaysia
The Tribunal has accepted that the applicant has unpaid bank loans in Malaysia and that legal action has been taken against him for the non-payment of loans.
As put to the applicant the Tribunal does not consider this to be serious or significant harm. It is simply the taking of legal or recovery action against the applicant under general commercial law.
The Tribunal also accepts that the applicant owes money to friends and relatives in Malaysia. However there is no indication that the applicant faces any real chance of serious or significant harm from them in relation to these debts.
The Tribunal is not satisfied there is any real chance of serious or significant harm to the applicant because he owes money to banks, friends and relative sin Malaysia.
The applicant also claimed to fear return to Malaysia because he has been in Australia for a long time and is no longer familiar with life in Malaysia. However as acknowledged by the applicant he has been in Australia only three years, while he lived in Malaysia for over [number of] years. He also confirmed he was willing to return to Malaysia, if he could have some more time in Australia to earn more money to repay his debts. The Tribunal is not satisfied that the applicant’s three years in Australia renders Malaysia unfamiliar to him or presents any difficulties for him returning there. The Tribunal is not satisfied that there is any real chance of serious or significant harm to the applicant because he has been outside of Malaysia for three years.
The applicant has not raised any other claims to fear harm in Malaysia and none arise on the evidence and information before the Tribunal.
For the reasons given above the Tribunal is not satisfied the applicant has a well-founded fear of persecution in Malaysia for a reason set out in s.5J(1)(a) of the Act. The Tribunal is also not satisfied that there is a real risk the applicant would be subjected to significant harm on return to Malaysia.
CONCLUDING PARAGRAPHS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa McAdam
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 2873

7 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction