1611199 (Refugee)

1611199 (Refugee) [2017] AATA 2676 (8 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611199
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Amanda Paxton
DATE:8 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 08 November 2017 at 12:51pm

CATCHWORDS
Refugee – Protection Visa – Malaysia – Particular social group – Homosexual – Malay Muslim – Fear of persecution – Witness credibility – Witness reluctant to engage – Lack of state protection
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth (1999) 197 CLR 510
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 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. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 18 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The Tribunal listened to the interview with the applicant conducted by the delegate in connection with his Protection visa application [in] July 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
Country of nationality
The applicant claims to be a citizen of Malaysia, and provided a copy of his Malaysian passport and Malaysian Identity card to the Department.[1] The Tribunal is satisfied on the basis of this evidence that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is the country of reference for the purposes of assessing the applicant’s claims under ss. 36(2)(a) and (aa).
[1] DIBP, [file number], ff. 2 – 3.
Third country protection
On the evidence before it, the Tribunal is also satisfied that, for the purposes of s.36(3) of the Act, the applicant does not have a right to enter and reside in a third country.
The applicant’s claims
In his Protection visa application, the applicant claims to be a citizen of Malaysia, born [birth date] in [a town in] Johor, Malaysia. He states he is single, of Malay ethnicity and identifies as Muslim. He departed Malaysia [in] March 2016, entering Australia [in] March 2016 on a [temporary visa].
The applicant claims to be making this visa application because he is gay and planning to transform his gender. He claims to fear return to Malaysia because his family, who have abused him and threatened him with the police or rehabilitation, and the Islamic community, cannot accept him because he is gay. The applicant states he fears he will be punished and required to undertake rehabilitation or imprisoned, that as a gay person he will not be employed if he is seen to be gay.[2]
[2] DIBP, [file number], ff. 18 – 20.
Following interview with the applicant, the delegate accepted the following findings of fact:
·     The applicant is a [age] year old Malaysian man.
·   The applicant is a homosexual man.
·     The applicant fears the Malaysian community and the authorities in Malaysia because he is homosexual.
On the basis of the country information before it, the delegate was not satisfied the applicant had a well-founded fear of persecution for reasons set out in s.5J(1) based on his claims to be a homosexual man. The delegate further found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of his removal from Australia to Malaysia there is a real risk that the applicant will suffer significant harm.
At his hearing with the Tribunal on 18 May 2017, the applicant indicated again that he had received assistance in completing the Protection visa form and that for his reason, as he told the delegate in his interview, there are some things that are not correct.
He told the Tribunal that left Malaysia because he was experiencing problems with his family and the community because he was gay. The applicant confirmed his statement to the delegate that he was gay but was not planning on changing his gender as claimed in his Protection visa application.
He stated that he cannot return to Malaysia because he will be targeted for abuse from his family and faces discrimination from the Malaysian community where homosexuality is against the law.
Credibility
In considering the general credibility of the applicant, the Tribunal noted that his apparent reluctance, detailed in the delegate’s decision provided to the Tribunal by the applicant, to engage with the Department and the Tribunal to present his claims. The delegate fount that taken cumulatively the applicant’s behaviour indicated that he was reluctant to engage with Department in good faith and that the delegate intended to make a decision on the information he had submitted to the Department.
The Tribunal noted similar behaviour from the applicant which suggested an apparent reluctance of the applicant to participate in a hearing with the Tribunal. The applicant first requested that the location of the hearing be transferred from [a city] office to [another city office], and the Tribunal accommodated this request by making arrangements for a hearing by video conference.[3] On the morning of the hearing, the applicant approached the [counter] advising that he was unable to attend the hearing because he needed to attend work and asking for another hearing date and time. He then agreed to attend the hearing as scheduled and he subsequently requested a second hearing, saying he was scared and could not focus.
[3] AAT, 161199, f. 22
Overall, the Tribunal formed the view that the applicant was reluctant to provide evidence, and the Tribunal closely considered whether this reflected on the applicant’s general credibility. However, the Tribunal also took into account that the applicant, as discussed in the country information below, comes from a culture where homosexuality is stigmatised and that homosexual people may feel shame and have been humiliated due to their sexual orientation. As indicated in the country information below, the applicant comes from a culture which shuns open discussion of sexual orientation and discussing matters such as sexual orientation will for many, in the official context of a Protection visa hearing, be extremely daunting, and that it is to be expected that some LBGI asylum seekers may struggle to talk openly about their sexual orientation and find it difficult to disclose material information in a coherent or detailed manner.[4]
[4] United Kingdom Home Office, Asylum Policy Instruction: sexual orientation in asylum claims, version 6, 3 August 2016
At hearing, the Tribunal found the applicant’s evidence was hesitant, reserved and unembellished. While the Tribunal considered it was evident that the applicant did have difficulty in disclosing information relevant to his claims, the Tribunal noted that his evidence frequently contained spontaneous detail and the strong emotional response and content that the Tribunal would expect from someone speaking from their own experience, especially when he was speaking about his experiences in respect to his family. On this basis, despite the indication discussed above which suggested concerns about the applicant’s credibility, the Tribunal was satisfied that the applicant was a credible witness.
Assessment of claims
The Tribunal accepts the applicant’s oral evidence, consistent with the documentary material before it and the applicant’s Protection visa application, that the applicant was born on [date] in [a location in] Johor, that he is of Malay ethnicity and identifies as Muslim. On the same basis the Tribunal accepts that the applicant’s family, his parents and [a number of] siblings, are all in Johor, and he is the [number] child.
The applicant told the Tribunal that he realised he was gay around about the age of [age] when he was in [school]. He was at school and formed a relationship with a school mate. He stated that their relationship started as friends and he doesn’t know how it went further but he realised he liked it. This relationship lasted [a number of] months until his best friend told his family. The applicant gave evidence that his whole family were very angry. He said that they did not do anything at first because they had only heard about his relationship from his friend and they asked him to confirm whether it was sure or not. When the applicant told them the truth and told them he was gay, they were very angry and argued. His parents were sad and the applicant was very unhappy about this but he felt there was nothing much he could do to change the situation. His [older siblings] wanted to him hit him – but they didn’t.
The applicant said that he did not know what to do at that time and it was very complicated. He decided right after the fight with his parents to go to his [Relative A’s] house so he could think clearly. The applicant explained that his [Relative A’s] house was only a short distance away but he wanted to diffuse the situation. His parents were still angry and went to his [Relative A’s] house to talk with him to find out what happened because they wanted him to change. The applicant stated that the next day he quit school without telling anyone, not even the school, and ran away to [Town 1], Johor. He decided to do this because everyone knew about his admission to being gay, he was embarrassed and could not face anyone at school or at home who he feared would humiliate him.
The Tribunal noted that the applicant’s evidence at hearing about his age at the time he commenced his first relationship and his schooling did not accord with information provided at his interview and in his Protection visa application, where he stated he left school [at a later age]. The applicant stated that he may have made a mistake with the dates, and overall, as noted above, the Tribunal considered his evidence to be sincere and genuine. The Tribunal accepted the applicant’s account at hearing. The Tribunal accepts the applicant is gay. The Tribunal accepts the applicant disclosed to his family that he is gay at the age of about [age] and that he left school and home at this time because his family and community could not accept his sexuality.
The Tribunal accepts the applicant’s evidence that he went to [Town 1] because he had a relative there on his mother’s side who did not know what had happened and he told his relative he was just looking for a job. The Tribunal accepts that he obtained work as [Occupation 1] in [a business] in [Town 1]; that he remained in this job for one year, and then moved to Johor Bahru where he worked first as [Occupation 1] for six months, later as [Occupation 2] at [another business], and, until he came to Australia, in [another business] as [Occupation 3]. The Tribunal accepts the applicant’s evidence that he did not disclose that he was gay to work colleagues and for this reason he experienced no problems at work.
The applicant told the Tribunal that after his first relationship he stopped having relationships and focussed more on his job and how to figure out his problem. He met someone about six months after went to Johor Bahru, but this was not a long relationship.
Family and friends
The applicant stated that he cannot return to Malaysia because he has nothing there - he is hated by his family and friends, and he will be on his own. The told the Tribunal that his [Sibling B], the only family member who accepts him, brought his mother to meet him a day before he left to come to Australia because his mother is not well and was moved to come to see him. He stated that he communicates with his [Sibling B] who passes messages on to his mother. Otherwise, the applicant cannot see his parents even at times like Ramadan, which he finds very stressful. They have told him that for him to participate in family celebrations, he must change first. He believes they will keep continue asking him to change so he might as well be far away and be able to be himself.
The applicant stated that while he has faced many negative reactions and people mocking him from his family and friends, that has become par for the course for him and he now accepts he is gay. In Australia, he is open about his sexuality and happy to be gay. He has made other gay friends and while he struggles because he has no family here, is on his own with no-one to talk to, he feels more at ease here where it is less stressful for him on a daily basis ease.
The applicant stated he fears his [Sibling C] will keep looking for him, and carry out threats disclosed to his [Sibling B] to have him placed in a rehabilitation centre. The applicant stated that he has heard from friends about people whose family have put them in rehabilitation centres. His other friends who are “like him” live alone, rejected by family.
The applicant stated that his family did not take any action against him when he was in [Town 1] or Johor Bahru, because they did not know where he was, and Johor Bahru is particular big place.
The applicant told the Tribunal that he came to Australia and does not want to return to Malaysia because he has problems with his family and community who have rejected him and will harass him because he is gay. In considering the relationship with his family, the Tribunal accepts the applicant’s evidence that while he is in touch with [Sibling B], his family have rejected him.
Employment/discrimination
The applicant stated that as Malaysia is an Islamic country people do not accept him. He fears that there is also tightening of the laws now in Malaysia and threats to send people like him to rehabilitation centres. The only people who accept him are “people like him”.[5]
[5] A reference to “people like us” (PLU) a term for homosexual amongst members of Malaysia’s subculture, >
The applicant told the Tribunal that he has not experienced discrimination in employment or in obtaining services because he has not disclosed that he is gay. He fears he will have difficulties holding employment if his employer knows he is gay and that he fears discrimination for this reason. The Tribunal accepts the applicant has not disclosed that he is gay to employers and that he was discreet about his sexuality in Malaysia.
Assessment of claims
As above, the Tribunal found the applicant to be a credible witness. On this basis the Tribunal accepts the applicant is a Malay Muslim homosexual in Malaysia.
The Department of Foreign Affairs and Trade (DFAT) has stated the following:
3.89 Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).
3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.
3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.
3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.
3.93 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a ‘re-education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government ‘viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.
3.94 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.[6]
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 19 July 2016.

Reports also indicate that ‘being homosexual’ is not tolerated by the community generally or by any of the religious faiths, and there are reports of men and women being abused, threatened and assaulted for reasons of their sexual orientation. The US Department of State report on human rights practices in Malaysia for 2016 indicates that Malaysia’s human rights problems include ‘discrimination against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons’, and that ‘[r]eligious and cultural taboos against same-sex sexual conduct were widespread’.[7] The US Department of State and a number of non-government organisations have all reported on the Malaysian government’s laws and programs and public vilification of LGBTI people, providing an environment for societal discrimination and harassment and violence against LGBTI people in Malaysia.[8] The Human Rights Watch 2017 World Report on Malaysia states that ‘discrimination against lesbian, gay, bisexual, and transgender people is pervasive in Malaysia.[9]
[7] Country Reports on Human Rights Practices 2016 – Malaysia, US Department of State.
[8] US Department of State, “Malaysia 2014 Human Rights Report”; OutRight Action International, Malaysia must recognize and stop hostilities towards LGBT people”, International Gay and Lesbian Human Rights Commission, “Violence: Through the lens of lesbians, bisexuals women and trans people in Asia”, May 2014.
[9] World Report 2017 – Malaysia’, Human Rights Watch.
In response to country information, the applicant stated that he fears being open about his sexuality because it is against the law to be gay. In discussion about his claimed fears he will be subject to rehabilitation, he stated that he does not know a great deal about this, such as how a person would be admitted or what occurred in such a centre, only that his [siblings] had threatened him with this, and he has heard about such centres from friends. He agreed there was some tolerance for gay people but that this did not come from the government, community or employers but from people in the LGBTI community.
The Tribunal accepts that the applicant has been rejected by his family (except [one of his siblings]) and that he could not rely on any support from them. The Tribunal notes that the applicant was able to maintain employment in [Town 1] and later in the urban area of Johor Bahru. The Tribunal has taken into account that the applicant did not seek to embellish his claims at the hearing but his evidence indicated that he acted in a discreet manner in Malaysia and he did not disclose to work colleagues and the broader community his homosexuality.
The Tribunal is mindful that an applicant does not have to show past persecution in order to demonstrate a well-founded fear of being persecuted.[10] On the evidence before it, including the country information referred to above, the Tribunal finds that the chance of the applicant suffering serious harm for reasons of his sexual orientation, in the form of significant physical harassment or extreme humiliation from those in authority and the broader Malaysian community, if he lived openly as homosexual from a Malay Muslim background would not be a remote, fanciful or far-fetched possibility. The Tribunal finds that the applicant faces a real chance of serious harm throughout Malaysia.
[10] In Abebe v The Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ at [192] observed that ‘[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past’.
Furthermore, the Tribunal accepts the applicant remained discreet or circumspect due to the threat of harm and discrimination and in order to avoid persecution. While the Tribunal accepts that the applicant has modified his behaviour in the past to avoid harm, the Tribunal notes that s.5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation. The Tribunal finds that the applicant is a homosexual and a modification of his behaviour to avoid a real chance of persecution would conflict with a fundamental characteristic of his identity and conceal an innate or immutable characteristic and his true sexual orientation.
While the Tribunal notes the law criminalising homosexual acts is rarely enforced, the Tribunal also notes the law has not been repealed and that there is little prospect of law reform in the reasonably foreseeable future. The Tribunal considers the effect of the law and the government’s ongoing public harassment of LGBTI people contributes to an environment where homosexuals experience societal discrimination and violence and official harassment by police and others in Malaysia. Given the country information and the applicant’s particular circumstances, as noted above, the Tribunal is not satisfied the State is willing to offer effective protection measures to the applicant, nor is the Tribunal satisfied the applicant would be able to access effective protection measures if returned to Malaysia now or in the reasonably foreseeable future.
The Tribunal finds that Malay Muslim homosexuals are a particular social group as defined by s.5L of the Act as the characteristic of homosexuality is shared by each member of the group; and the applicant shares the characteristic; and the characteristic is an innate or immutable characteristic and is so fundamental to the members identity or conscience, the member should not be forced to renounce it; and the characteristic distinguishes the group from society and is not a fear of persecution.
The Tribunal finds that the applicant’s membership of a particular social group, Malay Muslim homosexuals in Malaysia, is the essential and significant reason for the persecution, and that the persecution involves ‘serious harm’ as it amounts to significant physical harassment and extreme humiliation as instanced in subsection s.5J(5), and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).
Considering the applicant’s individual circumstances and the country information as a whole, the Tribunal finds there is a real chance he will suffer persecution for reasons of his membership of this particular social group, Malay Muslim homosexuals in Malaysia, if he returns to Malaysia, now or in the reasonably foreseeable future. Therefore the Tribunal is satisfied the applicant’s fear of persecution in Malaysia is well-founded, and that the applicant is a refugee as defined by s.5H of the Act.
The Tribunal finds that the applicant does not have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Amanda Paxton
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 2676

8 November 2017

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice