1612940 (Refugee)

[2018] AATA 5971

1612940 (Refugee) [2018] AATA 5971 (10 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612940

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Colin Huntly

DATE:10 July 2018

PLACE OF DECISION:  Perth

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

Statement made on 10 July 2018 at 2:10pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – attacks and threats by loan sharks – credibility – inconsistent evidence – incorrect information on application – travel to other countries – delay in bringing dependent child to Australia – no real risk of significant harm – state protection available – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36(2)(a), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Emiantor v MIMA (1998) 98 ALD 635

Iyer v MIMA [2000] FCA 52

SZQNO v MIAC [2012] FCA 326

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 on 28 July 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Malaysia, applied for the visas on 28 January 2015.  The delegate refused to grant the visas on the basis that the claims presented in the application for review were vague and lacking in appropriate detail.  The delegate further found that available country information did not support the applicants’ claims regarding the unavailability of state protection in Malaysia relating to illegal money lenders as potential agents of harm.

3. The applicants attended three hearings with the Tribunal.  The first of these hearings took place on 19 September 2017.  The second hearing was held on 11 December 2017.  The third and final hearing was held on 15 February 2018.  All hearings were conducted with the assistance of an interpreter fluent in both the Mandarin and English languages.  The applicants were not represented in this application by a registered migration agent.

   APPLICANTS’ IDENTITIES

4. Both Applicant One (Mr [A]) and Applicant Two (Mrs [B]) arrived in Australia [in] November 2014 as holders of [temporary] visas.  Applicant Three (Ms [C]) arrived in Australia [in] April 2015 as the holder of a [temporary] visa.  

5. The Tribunal has had regard to the Department of Immigration’s 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 applicants in person in addition to reviewing the applicants’ Malaysian passports.  Applicant One’s Malaysian passport was issued in Johor [in] 2014, and bears the same identifiers as Applicant One.  Applicant Two’s Malaysian passport was issued in Johor [in] 2014, and bears the same identifiers as Applicant Two.  Applicant Three’s Malaysian passport was issued in Johor [in] 2014, and bears the same identifiers as Applicant One.

6. The Tribunal finds that Applicant One, Applicant Two and Applicant Three form a family unit.

7. Accordingly, on the basis of the foregoing evidence, the Tribunal finds that all applicants are nationals of Malaysia.  Having established each of the applicants’ identities to the Tribunal’s satisfaction, the Tribunal finds that the receiving country with respect to the applicants is Malaysia.  The Tribunal also finds that the applicants do 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 the applicants.

   CRITERIA FOR A PROTECTION VISA

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

   RELEVANT LAW

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

   RELEVANT COUNTRY INFORMATION

10. Country information specifically referred to by the Tribunal in this decision is identified below.  The Tribunal has also had regard to the most recent Department of Immigration Country Information contained in its COISS publication Malaysia: Common Claims, 1 September 2016 and Department of Foreign Affairs and Trade Country Information Report – Malaysia, 19 April 2018.  In addition, the Tribunal has discussed the delegate’s summary of country information contained in the record of decision with the applicants at the hearing. 

11. 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.

12. 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 CLAIMS

13. At the first hearing with the Tribunal on 19 September 2017, for the benefit of the applicants, the Tribunal outlined all those documents the Tribunal had in its possession relevant to the application for protection.  The Tribunal then asked Applicants One and Two if there was any information in those documents that should be changed.  Both applicants responded in the negative.  The Tribunal also asked the applicants if they wished to add anything to their claims for protection.  Both applicants responded in the negative.  The Tribunal then asked the applicants if they were content for the Tribunal to proceed on the basis of the information in its possession.  Both applicants answered in the affirmative.

14. Also at the first hearing, the Tribunal read to the applicants the summary of the applicants’ claims for protection as summarised in the delegate’s decision.  Both applicants agreed that this summary of claims was fair and accurate.

15. At the start of the second hearing with the Tribunal on 11 December 2017, the Tribunal reminded the applicants of their answers to the foregoing questions at the previous hearing and noted that the applicants had made no further submissions to the Tribunal before the second hearing.

16. The Tribunal once again read the delegate’s summary of claims to the applicant, as recorded in the record of decision, and they both once again agreed that these were a fair and accurate summary of the claims for protection.  The Tribunal notes that in the delegate’s record of decision Applicant Two (being the spouse of Applicant One and mother of Applicant Three) is referred to as Applicant Three.

17. The claims for protection, as summarised by the delegate in the record of decision are as follows:

    Applicant One (Mr [A])

    ·     The applicant had a company in Malaysia which consisted of two [shops] and included shareholders. The shareholders embezzled all the money and took out loans including from loan sharks, in the name of the company.

    ·     The applicant hesitated about reporting the matter to the police.

    ·     The loan sharks went to the shop and the person disappeared; as a consequence the applicant was asked to pay the debt. The applicant was threatened so he went to the bank to get a loan to pay some of the money back to the loan shark.

    ·     The money that the applicant repaid was not sufficient so they sent people to shop every day to make trouble and took away all the [products]. They also poured red paint on the door of the shop and threatened to harm the applicant and his family.

    ·     The applicant had no choice and sold his company but it took over one month so the loan sharks kidnapped the applicant’s wife and children. He was forced to pay back the money.

    ·     The applicant went to the police but they claimed he had no evidence and he was forced to do whatever they asked.

    ·     The applicant’s wife and children were finally let go.

    ·     The loan sharks continued to ask the applicant if he needed money and they went to his home and shop every day. The debtor called as well for money.

    ·     The applicant’s wife couldn’t live under the pressure and attempted suicide many times and the applicant was beaten up every two days.

    ·     The applicant and his wife eventually decided to run and borrowed a car from a friend, they hid everywhere.

    ·     At midnight the applicant had to wash the clothes with their [child] and eventually he was found and beaten badly, sustaining injuries everywhere.

    ·     The applicant decided to send the child away to [a relative] who lived far away and they escaped to Australia.

    ·     The loan sharks continued to look for the applicant every day and were waiting at the front of their home and told his family that if they find them they will kill them.

    ·     The applicant and his wife were very scared as the visas were about to expire.

    Applicant 3 (Ms [B])

    ·     Question 90 of the applicant’s application asks: Why did you leave that country(s)? Provide specific details. The applicant answered: My [child] lived in the house constantly being harassed, so [she/he] can grow up normally, frightened every day, afraid to go out with everyone. [She/He] was only [an age] is only [a baby], this continues to make [her/him] afraid to speak to other people, every day [she/he] cannot sleep properly. [She/He] is just came to this world, so unfair to [her/him].

    ·     Question 91 asks: What do you think will happen if you return to that country(s)? The applicant answered: My [child] does not like a normal child grow up to have a normal physical and mental health.

    ·     Question 92 asks: Did you experience harm in that country(s)? The applicant answered: Someone came up home a quarrel, throwing paint at the gate.

    ·     Question 93 asks: Did you seek help within that country(s), after the harm? The applicant answered: No, we had to go to police station to report five time, but my [child] did not get a positive help.

    ·     Question 94 asks: did you move, or try to move to another part of that country(s) to seek safety? The applicant answered: No, my [child] only[an age], and no one can take care with [her/him].

    ·     Question 95 asks: Do you think you will be harmed or mistreated if you return to that country? The applicant answered: Yes, they did not stop the harassment my home, and knew my [child] still in Malaysia.

    ·     Question 96 asks: Do you think the authorities that country(s) can and will protect you if you go back? The applicant answered; No, because we are already reported at the polis station, but polis man still not take any action.

18. The Tribunal confirmed with Applicant Two whether or not she desired her claims for protection to be considered separately to the claims of Applicant One, or if she relied on Applicant One’s claims for protection and provided her claims in support of those made by Applicant One. Applicant Two confirmed that she was relying on Applicant One’s claims for protection and wished her additional information to be considered in light of the claims made by Applicant One. Accordingly the Tribunal has proceeded to consider the claims made by both applicants. The Tribunal further notes that Applicant Three, as a dependent child, relies upon the claims made jointly by Applicants One and Two.

19. The Tribunal discussed the foregoing claims with the applicants at the second and third hearings.  The Tribunal notes the applicants’ stated belief that they would be under continuing threat by criminal thugs if they were to return to Malaysia, because they have networks of influence throughout the country. 

    STATEMENT OF DECISION AND REASONS

20. The Tribunal notes that the applicants’ primary claim for protection is based on holding a well-founded fear of persecution for the essential and significant reason of their membership of a particular social group; namely, persons in Malaysia indebted to illegal money lenders (known colloquially in Malaysia as ‘Ah Longs’). 

    Decision under review  

21. The reasons given by the delegate for not granting the applicants’ application for protection are contained in the delegate’s record of decision at pages 13 with respect to Applicant One, and page 14 with respect to Applicant Two.  In any event, those reasons are ultimately expressed in the same terms for each applicant.  Firstly, the delegate found that the applicants’ refugee criteria-based claims lacked adequate explanation and details, lacked supporting evidence and were not supported by the relevant country information surveyed in the decision.  As a result, although not expressly stated as such by the delegate, the implication is that the delegate found those claims to lack credibility and were therefore, not genuinely held by the applicants.

22. On this basis, the delegate found that the applicants 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.  

23. The Tribunal notes that, in addition to this finding relating to the refugee criteria, the delegate also found that there was not a real risk of significant harm to the applicants under the complementary protection considerations at section 36(2)(aa) of the Act, due to the availability of adequate State protection in Malaysia now and in the reasonably foreseeable future. 

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

25. At the second hearing, the Tribunal surveyed the country information contained within the delegate’s decision record and indicated to the applicants that the delegate’s assessment appeared to correspond with the country information available to the Tribunal.  The applicants were invited to make any comments about this material. 

26. In response, Applicant One indicated that the Malaysian police only protect the wealthy and that police protection is available to those who can corruptly pay for it, including criminals.  Applicant One also referred to a red paint incident which is referred to in his original statement attached to the application for protection.  Applicant One stated that the harassment of his family by the agents of harm he fears continues to the present time.

    Initial Hearing

27. The Tribunal notes that, immediately prior to the initial hearing on 19 September 2017 (at which the applicants confirmed that their documents and claims were accurate and complete), they submitted what purported to be copies of five Malaysian Police Reports in support of their application.

28. No further submissions were received from the applicants before the second hearing on 11 December 2017. 

    Second Hearing

29. At the second hearing, the Tribunal addressed a number of concerns to Applicant One about his application for protection.  The Tribunal asked why the applicant had answered Question 32 in the negative—indicating that he had never had or used another passport—when the passport inspected by the Tribunal clearly indicated that this was not the case.  Applicant One initially stated that he only had one passport before acknowledging that this was not the case.  Applicant One suggested that he had merely misunderstood the question.

30. The Tribunal asked why Applicant One had answered Question 35 in the negative—indicating that he had never previously travelled outside his country—when he had previously indicated at the hearing that he had lived and worked in [Country 1] for approximately eight years prior to 2008.  Applicant One again suggested that he had not understood the question.  When questioned more closely, the applicant confirmed that he had, in fact, visited [Country 1] [and two locations in Country 2] numerous times.

31. The Tribunal then asked Applicant One why his period of residence in [Country 1] was not referred to in his residential history at Question 36.  The applicant indicated that he did not understand the question.  The Tribunal pointed out that the applicant had understood the question enough to provide a single residential address in Malaysia for the entire period prior to his arrival in Australia.  The applicant then indicated that, as he had commuted on weekends between [Country 1] and Johor in Malaysia, he did not understand how to answer the question.  The Tribunal asked the applicant if he had only lived at one residential address for his entire life prior to his arrival in Australia.  The applicant indicated that he did not.  The applicant accepted that his answer to this question was not correct.  The Tribunal finds that Applicant One provided incorrect information in his application for protection in relation to his previous overseas travel and residence history

32. In the course of his evidence, Applicant One stated that someone helped him to complete his Forms and that this was why he did not properly understand the questions.  The Tribunal asked him why he had declared in his Forms that he had completed the Forms by himself and without assistance if he did indeed receive assistance in completing the Forms.  The applicant then stated that, although someone had helped him, they were not very good.  The Tribunal followed this point up further with the Applicant.  According to the Applicant, someone had assisted him to apply for protection in the first instance for no charge.  The applicant stated that the same person then charged him $[amount] to manage his appeal to the Tribunal and did nothing. 

33. At this point, the Tribunal asked the applicant why he had not divulged this arrangement, either at the first hearing, or earlier in the second hearing.  The Tribunal further noted that it had taken detailed questioning from the Tribunal to obtain this new information.  The Tribunal stated that the Applicant’s lack of straightforwardness about the basic facts of his life and then his lack of candour when answering the Tribunal’s questions reflected poorly on his credibility and the credibility of his claims. 

1. In response, Applicant One stated that he did not understand the Tribunal’s questions when these had been asked at both hearings.  The Tribunal pointed out that the relevant questions had been asked through a suitably qualified and acceptable interpreter.  The Tribunal finds that Applicant One’s evidence and information in connection with his application for protection and at the subsequent application for review was vague, incorrect and misleading with respect to details of the circumstances of his life while in Malaysia.

2. Applicant One once again stated that he had relied on an agent to complete his paperwork.  The Tribunal asked the applicant for the details of this agent.  The applicant stated that he had used the services of an agency named [Name] utilising the [mobile telephone number].  They dealt with someone named [Mr D] at this number.  The Tribunal notes that no business of this name appears on the MARA Register of Migration Agents.  The Tribunal further notes that the telephone number provided to the Tribunal by the applicant is not answered when dialled.  The Tribunal therefore finds that Applicant One was not assisted in his application by a registered migration agent.

3. The Tribunal asked Applicant One for details of the business structure of the [product] business he operated in Malaysia which formed the basis of his claims for protection. The applicant stated that he was in business with a person named [Mr E] from some time in 2012.  Applicant One and his business partner operated two [product] shops between them.  The applicant arranged the purchase of stock and supplies, and his business partner managed the marketing and selling of the merchandise. 

4. According to Applicant One, despite being responsible for purchasing and in sharing the management of the businesses, he had nothing to do with the business finances or banking.  After a few months of operation, the applicant claims that his partner embezzled the available funds of the business and disappeared, leaving business debts owing to illegal money lenders/Ah Longs in Malaysia.  According to Applicant One, at this point, his businesses were targeted by criminal thugs associated with Ah Longs on a regular basis.

5. The Tribunal notes that, when questioned about the details of these events, the applicant’s evidence varied, particularly as to dates and the nature of the harassment.  The Tribunal pointed out that this lack of clarity about such significant events relating to his claims for protection reflected poorly on the credibility of those claims.  Applicant One stated that this was due to the effluxion of time and the frailty of memory.  The Tribunal pointed out that it was illogical to suggest that partners in a business would not share access to the business’ financial records, particularly when Applicant One had been responsible for purchasing on behalf of the business.  The Tribunal, therefore, finds that Applicant One’s claims relating to the finances of his business and the existence of Ah Long debts were vague and illogical, given the nature of the events described.

6. The Tribunal also questioned why Applicant One had not reported the embezzlement of business funds and apparent fraud by his business partner to Malaysian Police.  The applicant stated that his business partner had begged him not to do this, and promised to repay him.  The Tribunal pointed out that the failure of his business partner to repay any money and then to apparently disappear was inconsistent with this evidence.  Accordingly, the Tribunal finds that the Applicant’s failure to report such matters to the Malaysian Police in 2013 is more consistent with the purported events not happening than it is consistent with them having occurred.

7. The Tribunal also notes that, despite Applicant One claiming to have, thereafter, faced escalating harassment from the criminal thugs associated with Ah Longs (including the alleged abduction of his wife and child from a shopping centre and their illegal detention for two days discussed below), none of these matters were reported by the applicant to Malaysian Police.  The Tribunal finds that it is not logical or credible to suggest that a citizen of Malaysia would suffer the type or duration of harm claimed by the applicant without seeking any assistance from the Malaysian Police.  Accordingly, the Tribunal finds that the evidence of Applicant One about his claimed persecution by agents of harm, in the person of Ah Longs and their criminal associates, is not credible.

8. The Tribunal was unable to ascertain from Applicant One with any precision how much money was borrowed on behalf of the business from Ah Longs by his business partner.  The Tribunal notes that the applicant has estimated around MYR[amount] was owed to Ah Longs but has provided no explanation about how he arrived at this total figure. 

9. The Tribunal also notes the applicant’s reference to an amount of MYR[amount] that he claims to have borrowed from [a bank] in Malaysia around February 2014 to repay some of the claimed Ah Long debt.  The Tribunal questioned the applicant why he had not sought to provide records to substantiate this particular debt, despite the delegate having pointed out the lack of details and supporting evidence provided by the applicant as one of the factors that suggested the applicant’s claims for protection lacked substance.  Applicant One indicated that he did not think this was important and that he had lost paperwork during his departure from Malaysia.  The Tribunal put to the applicant that he had had almost two years to obtain this information but that he still did not appear to have any statements showing what amounts were owing, if any. 

10. The Tribunal also highlighted its concerns to both applicants about why persons who held such fears in Malaysia would leave without their [child], despite having gone to the trouble of obtaining a passport for that child less than one month before both parents departed the country.  The Tribunal notes the applicant’s evidence that he had sent his [child] to a distant village to live with a relative because he and his spouse were leaving for an unknown location without much money.  Given the applicant’s past history of international travel and the nature of the claimed threat to himself and his family (as evinced by the purported abduction of Applicant Two and their [child] from a crowded shopping centre), departing the country without the child in such circumstances is not logical unless – contrary to the applicant’s claims – there was no perceived threat to the child in Malaysia.

    Third Hearing

11. The Tribunal notes that, immediately prior to the third hearing with the applicants on 15 February 2018, the applicants submitted a document in support of their application for protection.  This document purports to be a payment demand from [a bank], dated [November] 2017 seeking repayment of loan monies in the amount of [amount].

12. At the commencement of the third hearing, the Tribunal surveyed the evidence provided at the second hearing and highlighted the Tribunals’ numerous concerns with that evidence highlighted above.  Applicant One was invited to comment on these matters.  In particular, the Tribunal asked for the applicant’s response to the Tribunal’s concerns expressed late in the second hearing about the fact that his [child] had been left in Malaysia while he and his spouse claim to have fled due to a well-founded fear of persecution in Malaysia from Ah Longs and their criminal thug associates. 

13. The applicant repeated his view that it had been safe to leave his child in the care of [a relative] in Malaysia for this eight month period.  The Tribunal put to the applicant that this conduct might appear to a reasonable mind to be more suggestive of a lack of fear of serious or significant harm than suggesting that there was a genuine fear of serious or significant harm in Malaysia on the part of the applicants.  The applicant suggested that it was easier to hide [a] child in Malaysia than a family of three.  The Tribunal accepts this to be the case, however, the Tribunal also has regard to the additional claims made on behalf of Applicant Three by Applicant Two, both in her original application and at the hearing. 

14. The Tribunal specifically notes that Applicant Two claims to have been concerned about her [child] being deprived of a normal home life by the daily harassment that she claimed was being inflicted on the family unit.  The Tribunal further notes that all members of the family unit held a valid Malaysian passport prior to the departure of Applicant One and Two for Australia.  The Tribunal finds that placing Applicant Three into a foster care arrangement for an indefinite period of time in a country in which Applicant One and Applicant Two claim that they were unable to live without a well-founded fear of persecution is not consistent with Applicant Two’s claims about her [child] being deprived a normal home life by the daily harassment that she claimed was being inflicted on the family unit.  Accordingly, the Tribunal finds that the decision to leave Applicant Three in Malaysia in foster care for an indefinite period of time (which transpired to be eight months) was neither reasonable nor logical in circumstances where the family unit claims to have held a well-founded fear of persecution in Malaysia.

15. The Tribunal surveyed the country information discussed by the delegate in the Record of Decision and pointed out that this country information was broadly consistent with the most current country information available to the Tribunal (as identified above).  Applicant One was invited to respond to this information. 

16. Applicant One stated that not everything that happens in Malaysia is reported in the media.  The applicant suggested that Malaysian Police were probably corrupted by the Ah Longs, and that his own experience suggested that illegal money-lenders acted with impunity in Malaysia.  The applicant pointed out that he had provided five copies of reports to Malaysian Police made by his brother about the Ah Long harassment.  The Tribunal noted that the applicant did not provide any corroborating evidence to support his own claims in the nature of a report by either Applicant One or Applicant Two to Malaysian Police at or near the relevant time(s).  The Tribunal suggested to the applicant that a reasonable person might find that the absence of such contemporaneous police reports undermined the applicant’s claims.

17. The Tribunal then heard from Applicant Two.  Applicant Two acknowledged that she also had failed to complete her application for protection form accurately with respect to her international travel history.  Applicant Two estimated that she has visited [Country 1] in the vicinity of 20 times since birth, and that her own family of origin now resides in [Country 1].  Applicant Two stated that she misread the form and that this is why she omitted this information in her original application.  The Tribunal finds that Applicant Two provided incorrect and misleading information in her application for protection about her migration and travel history.

18. According to Applicant Two, the business became the target of Ah Long and criminal thug harassment from around March 2013 when she was in the late stages of pregnancy with Applicant Three.  According to Applicant Two, this harassment at the business premises was regular and highly disruptive.  When Applicant Two suggested that they should report this harassment to Malaysian Police, Applicant One persuaded her not to do so. 

19. According to Applicant Two, she and Applicant Three were abducted by criminal thugs associated with the Ah Longs while in a shopping centre.  She was told to get into a car by ‘a few guys’.  According to Applicant Two, there were not many people around at the time.  Applicant Two did not scream out or call for help, but complied with the request.  According to Applicant Two, she and Applicant Three were held in a house against their will for two days.  After the criminal thugs called Applicant One, he arrived and collected Applicants Two and Three.

20. According to Applicant One, he was told to pay MYR[amount] to secure the release of Applicants Two and Three, and thereafter to pay MYR[amount] to a particular Ah Long. 

21. The Tribunal pointed out that it appeared to be illogical for a person who was abducted from a shopping centre together with their [child] not to call for help or otherwise resist or, failing that, to subsequently report the matter to police.  The Tribunal indicated that it was also illogical to suggest that a person in Applicant One’s position would not seek the assistance of the police either when his spouse and [child] were being held hostage or on securing their release, given that Applicant One knew the location where they were being held. 

22. The Tribunal also noted that the applicants now claim that Applicant One’s brother, who remains in Malaysia, has subsequently filed Police Reports about harassment by criminal thugs at his home.  These reports are in contradistinction to the absence of any reports by the applicants relating to much more grave criminal conduct which they claim to have experienced while living in Malaysia.  This amounted to a further illogicality in the claimed conduct of the applicants while in Malaysia.  The Tribunal put to Applicants One and Two that the numerous illogicalities and the lack of corroboration in their evidence raised credibility issues about their claims and about their credibility as witnesses.

23. The Tribunal also addressed the document purporting to be a payment demand from [a bank], dated [November 2017], seeking repayment of loan monies in the amount of MYR [amount], which was submitted by the applicants immediately prior to the Hearing. 

24. The Tribunal pointed out that, although there was no way of authoritatively determining the authenticity of the document, a number of aspects of the document suggest that it may not be authentic.  Firstly, the letter purports to be dated [November] 2017, but it settles a demand amount at [October] 2014.  Not only is there no explanation for this inconsistency within the letter, but there is no calculation as to any intervening three years’ interest and/or penalty amounts that would ordinarily expect to have become owing.  The terms of trade in allowing a debt to be unpaid for such a lengthy period without making a final demand is also highly unusual.  Second, there is a statement in the letter that the debt would be assigned to a debt collection agency if not paid within seven days (without making it clear if this refers to [November] 2017 or [October] 2014), but no further supporting evidence has been provided by the applicants as to any further recovery action having been taken against them. 

25. The Tribunal invited the applicants to make submissions as to why it should place any weight on such a document, or on the illogical evidence presented in support of their claims for protection.  No submissions were made in response to this invitation.

26. Applicant One repeated that he and Applicant Two had not abandoned their [child] when they relocated to Australia.  He stated that he had ensured that the [child] would be cared for in a safe place in Malaysia while he and Applicant Two came to Australia and that they had arranged for Applicant Three to join them in Australia as soon as their application for protection was lodged.

27. At this point, the Tribunal asked the applicants if they had any specific submissions to make on behalf of Applicant Three.  The applicants claimed that if Applicant Three were to return to Malaysia it would not be a safe environment.  Applicant Three would have no chance of a regular upbringing because [her/his] parents would need to move around too much. 

28. According to the Applicants, due to their networks of influence, Ah Longs operate in Malaysia without interference from the Malaysian Police.  The Tribunal put to the applicants that this claim was not supported by available country information, including that surveyed by the delegate in the original decision record.  The Tribunal notes that Applicants One and Two did not accept the content of the country information referred to by the Tribunal.

29. The Tribunal has reviewed the available country information referred to above and finds that it should prefer that independent country information over the subjective assessment of the applicants with respect to illegal money lending, official corruption and the effectiveness of the criminal law and local law enforcement within Malaysia.

    CREDIBILITY CONCERNS

30. As discussed above, the Tribunal finds that Applicant One’s evidence and information in connection with his application for protection, in his subsequent application for review and at the hearings with the Tribunal was vague, incorrect, incomplete and misleading with respect to details of the circumstances of his life while in Malaysia, his business and financial arrangements as these matters relate to his claims for protection.  The Tribunal has also found above that Applicant One’s evidence about harassment he claims to have experienced in Malaysia is illogical in key respects.  The absence of any contemporaneous police reports about the harassment claimed by Applicant One, Two and Three while in Malaysia is not adequately explained by the suggestion of Applicant One that Ah Longs might have networks of influence in that country.  Accordingly, the Tribunal finds that Applicant One’s claims for protection lack credibility in key respects.

31. As also discussed above, the Tribunal finds that Applicant Two’s evidence and information in connection with her application for protection, in her subsequent application for review and at the hearings with the Tribunal was vague, incorrect, incomplete and misleading with respect to details of the circumstances of her life while in Malaysia, her business and financial arrangements as these matters relate to her claims for protection.  The Tribunal has also found above that Applicant Two’s evidence about harassment she claims to have experienced in Malaysia is illogical in key respects.  As discussed above, the absence of any contemporaneous police reports about the harassment claimed by Applicant One, Two and Three while in Malaysia is not adequately explained by the suggestion of Applicant One that Ah Longs might have networks of influence in that country.  Accordingly, the Tribunal finds that Applicant Two’s claims for protection lack credibility in key respects.

32. It follows that, as Applicant Three is relying on the claims for protection made jointly by Applicant One and Two, given that those claims lack credibility, Applicant Three’s claims for protection also lack credibility.

33. Having found that the applicants’ claims lack credibility on the basis that they are vague, illogical, inconsistent, incomplete and misleading, the Tribunal finds that the applicants do not genuinely hold a well-founded fear of persecution for the essential and significant reason of being members of a particular social group, indebted to illegal money lenders, and that such persecution would apply to them if they were to return to Malaysia, or for any other reason, now or in the reasonably foreseeable future.

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

    FINDINGS AS TO CLAIMS CONSIDERED IN THIS REVIEW

1. On the basis of the foregoing factual findings and the country information referred to above, the Tribunal finds that the applicants have not demonstrated that there is a real chance that, if they were returned to Malaysia, they would experience persecution for the essential and significant reason of being members of a particular social group, persons in Malaysia indebted to illegal money lenders, and that such persecution would apply to them if they were to return to Malaysia, or for any other reason, now, or in the reasonably foreseeable future.  The Tribunal further finds that the applicants have failed to demonstrate that they would experience serious harm or systematic and discriminatory conduct of the type required of section 5J(4) of the Act if they were to be returned to Malaysia now or in the reasonably foreseeable future. 

2. Accordingly, the Tribunal finds that there is not a real chance that, if the applicants were returned to Malaysia, they would be persecuted for the essential and significant reason of being members of a particular social group, persons in Malaysia indebted to illegal money lenders, and that such persecution would apply to them if they were to return to Malaysia, or for any other reason, now, or in the reasonably foreseeable future, for the purposes of section 36(2)(a) of the Act (the refugee criteria). 

3. The Tribunal has also considered the applicants’ 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 applicants being removed from Australia to the receiving country, there is a real risk that the applicants would suffer significant harm now, or in the reasonably foreseeable future. 

4. 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 applicants being removed to Malaysia, there is a real risk that they 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

5. For the reasons given above, the Tribunal is satisfied that the applicants are not persons in respect of whom Australia has protection obligations under section 36(2)(a).

6. Having concluded that the applicants do not meet the refugee criterion in section 36(2)(a), the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is satisfied that the applicants are not persons in respect of whom Australia has protection obligations under section 36(2)(aa).

7. There is no suggestion that any of the applicants satisfy section 36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the applicants do not satisfy the criterion in section 36(2).

   DECISION

8. The Tribunal affirms the decision not to grant the applicants a protection visa.

   Dr Colin Huntly
   Member

   APPENDIX A – RELEVANT LAW

   Refugee criterion

   76.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.

   77.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.

   78.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).

   79.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.  

   80.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.

   81.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

   82.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’).

   83.‘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.

   84.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

   85.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

   86.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.

   87.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.

   88.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.

   89.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 June 2018).

   [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.

   90.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 June 2018).

   [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.

   …