1612947 (Refugee)

1612947 (Refugee) [2017] AATA 2681 (22 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612947
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:22 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 September 2017 at 9:02am
CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnicity – Malay – Religion – Islam – Former domestic abuse victim and sufferer – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v MZYYL (2012) 207 FCR 211
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 the Federation of Malaysia (Malaysia), applied for the visa [in] March 2016. The delegate refused to grant the visa on the basis that the applicant did not have a well-founded fear of persecution because she had effective protection measures available to her and that the applicant would not be taken to have a real risk of significant harm for the same reasons.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed:
Background
The applicant claimed she was born [in date] in Pasir Mas in the Malaysian state of Kelantan and that she is a citizen of the Federation of Malaysia.
On departmental [file] is a certified copy of the valid applicant’s Malaysian passport issued [in] 2015.
The applicant arrived in Australia [in] May 2015 while holding a [temporary] visa. The applicant was unlawful in Australia when her [temporary] visa expired [in] August 2015 until she applied for a class XA subclass 866 protection visa and was granted an associated bridging visa on [in] March 2016.
The applicant claimed in her submitted 866 forms that she was not married at the time of application; that she does not have any children; that her religion is Islam; and that her ethnicity is Malay. She also claimed that she can speak, read and write in English and Bahasa Malaysian.
Below is a summary of those written claims that the applicant is owed Australia’s protection obligations:
·     The applicant claimed her parent sent her to live with another couple because they were too poor to support her. The applicant claimed the couple were good to her until they had a baby of their own a few years later;
·     The applicant claimed she was then required to cook for herself and undertake lots of housework; that she had to work in a [workplace] for money for school, however the couple took the money she earned;
·     The applicant claimed that the couple became angry if she did not clean enough and that she was [beaten];
·     The applicant claimed she wanted to leave but did not where to go and that she tried to go to another town but the couple found her;
·     The applicant claimed she cannot report the matter to the police because the couple threatened her with being beaten;
·     The applicant claimed that after she finished school she worked at other places and started to collect money to run away to Australia to seek protection;
·     The applicant claimed she fears if she returns to her home country, the couple will find her and bring her back to their home and beat her and that if she moved to another part of Malaysia, they have or will make a missing persons report which will lead to her being relocated and then beaten.
No documents were submitted to the Department to support these claims.
A delegate on behalf of the Minister refused to grant the protection visa [in] August 2016.
The applicant applied to the Tribunal to have the delegate’s refusal decision review on 17 August 2016.
The applicant appeared before the Tribunal on 19 September 2017 and was assisted by an interpreter in the Bahasa Malaysian and English languages.
During the hearing, the applicant stated that since she lodged her application for protection she has married a Malaysian citizen who holds a bridging visa. She further claimed that she did not have any children.
At the end of the hearing, no post hearing submissions were required.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of nationality
The applicant claims to be a citizen of Malaysia and provided a copy of her passport to the Department with her protection visa application, as well as a copy at the Tribunal. Based on this information and with no evidence to the contrary, the Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Credibility Findings
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…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.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
In this case, there are a number of aspects about the applicant’s personal circumstances that the Tribunal accepts as credible:
·The applicant belonged to a large and poor family in which she had [step-siblings] from her father’s first marriage and [biological] [siblings];
·The applicant’s father died in [an] accident in 2010 and her mother remains living in Pasir Mas in Kelantan;
·The applicant has not travelled outside of Malaysia in the past until her departure to Australia in 2015;
·The applicant’s religion is Islam and her ethnicity is Malay;
·The applicant married in Australia to a Malaysian citizen [in] July 2017 and that she does not have any children; and
·The applicant completed or matriculated second college.
During the scheduled hearing, the applicant elaborated on her dispositive claims. It was claimed by the applicant family were so poor that they felt compelled to send the applicant as a young woman to live with a couple which included a woman called [Ms A], living in Kota Bahru in Kelantan. It was further claimed that [Ms A] who was childless at the time was willing to pay for the applicant’s schooling.
The applicant claimed at the scheduled hearing that after a few years she was required to undertake housework and child care duties as a domestic servant for the couple in Kota Bahru and to undertake paid work in a [workplace] to cover the cost of schooling and living expenses. The applicant further claimed that for non-compliance she was scolded and beaten while she was at school.
The Tribunal notes that these oral claims were broadly consistent with the applicant’s written claims. Nevertheless the applicant had invited some credibility concerns regarding her vague testimony during the hearing whose answers were often evasive and non-specific to the Tribunal’s otherwise straightforward questions. The Tribunal also finds the claims to be somewhat far-fetched but not entirely implausible given the Tribunal accepts the applicant belonged to a poor and large family. Despite this misgivings, the Tribunal is willing to provide the applicant the benefit of the accept that this was the case that the applicant had experienced living in an abusive household which required her to do menial work and paid employment while she was studying and completing high school and which involved verbal and physical abuse, as claimed.
The applicant also claimed that she attempted to live with a friend while in high school but was located and then punished for it when she was forced to return the couple in question. Again, the Tribunal accepts this to be the case, despite its misgivings.
However the Tribunal does not accept that the applicant, when she completed her schooling that she remained in the household as claimed, leading to ongoing abuse while she was working full time and as an adult. In this regard, the Tribunal notes that the applicant had earlier attempted to depart from the couple as a minor. Given that the couple had no legal rights over the applicant or her mother, had the applicant been willing to move away in the past as a minor it would be reasonable to expect the applicant to take advantage of reaching the age of majority and paid work to depart such an abusive household. The Tribunal enquired if the applicant told her mother about the abuse, the applicant claimed she did not tell her parents about the abuse and her mother would not believe her. Given the agreement between the couple and the applicant’s parents to care for the applicant that required the couple to pay for her schooling, it would have been reasonable to expect the applicant to have informed her parents to this broken agreement and regarding her personal safety and to returned home, at least, after her schooling while working independently. In this regard, the Tribunal notes that the applicant claimed she lived in Pasir Mas right up until she departed for Australia in her 866C form. When the Tribunal enquired into the reasons the applicant did not return home or relocate away from the couple before her departure to Australia given she was now responsible for her own personal safety; the applicant responded that she was scared; that she would be relocated again and that she was told not to say anything, including to the police, that she had been assaulted by the couple. In cumulatively considering these concerns about the applicant’s claims as an adult, the Tribunal does not accept the applicant remained in the same abusive household as she had been as a minor, as claimed for the reasons claimed and that the applicant has significantly embellished her tragic personal circumstances as a minor to augment her otherwise weak claims for protection.
This finding is further consolidated when considering the applicant’s considerable delay in applying for a protection visa. The Tribunal notes that the applicant arrived in Australia in May 2015 and became an unlawful non-citizen in Australia in August 2015 until her application for a protection visa in March 2016. When the Tribunal enquired into the timing of her protection visa application given she claimed to have fled Malaysia for Australia to seek urgent protection, the applicant responded that she really wanted to bring all her family here and that she wanted to apply for a work visa but was told she only had a fifty per cent chance in being successful. The applicant stated she made no attempt to find a migration agent or lawyer for advice or assistance and relied on a person who told her she could successfully apply for a bridging visa by applying for a protection visa. Had the applicant a genuine or urgent personally held fear of persecution, it would have been reasonable to expect the applicant to seek assistance soon after her arrival in Australia and not to have risked being detained or deported as a unlawful non-citizen in Australia. Furthermore, her testimony strongly indicated that the applicant was more interested in regularising her migration status than seeking out Australia’s protection obligations on the basis of any genuine or urgent fears of persecution for the claimed reasons. Based on the applicant’s considerable delay in seeking protection, the Tribunal does not accept she has any urgent fears of persecution for the claimed written or oral reasons.
The Tribunal has also considered whether the applicant will face a real chance of serious harm or a real risk of significant harm by the abusive couple if she returned to either specifically Kelantan or Malaysia more generally.
During the scheduled hearing, the Tribunal put it to the applicant that her changed circumstances as married woman meant that she had a committed husband who would not permit his spouse to be further abused as she had in the past. In this regard, the applicant did not answer the question other than to say she feared be discovered again and she was fearful. The Tribunal discussed with the applicant that according to DFAT’s most recent report on Malaysia about domestic violence, she could make police reports or seek intervention orders against the couple; again the applicant’s response evaded a specific response and repeated her fears of encountering the couple again if she returned to Malaysia. When it was put to the applicant that the couple in question had not legal rights over her, she responded in the same manner. Based on the country information and the applicant’s marital status, the Tribunal finds that she will have accessible legal protections as well as the spousal support to protect herself from any further physical harm, if she returned to Kelantan or Malaysia more generally into the foreseeable future.
Based on the applicant’s accepted circumstances and that she had been residing in abusive household as a minor, the Tribunal accepts that the applicant does have some genuine and residual fears in encountering the couple which the Tribunal accepts had been emotionally, financially and physically abusive towards the applicant as a minor as claimed by in her written and oral claims. In this regard, the Tribunal accepts the applicant has some genuine fears of persecution as a former domestic abuse victim and survivor, if she returned to Malaysia.
However, the Tribunal has made a number of adverse credibility findings that as an adult the applicant had not been harmed in the past, as claimed. With particular emphasis on her visa history, it has also made a finding based the applicant’s visa history that she did not and does not any urgent or deep fears of returning to Malaysia for the claimed reasons, either at the time of application, now or into the foreseeable future. Based on these credibility findings, the applicant’s changed and accepted personal circumstances since her application for protection in which is married and given the country information regarding Malaysia’s effective measures available by the relevant State to the applicant, the Tribunal finds that the applicant does not have a well-founded fear of persecution by operation of subsections 5J(2) and 5LA. Neither does the Tribunal accept the applicant will not have, if he returns to Malaysia, available effective protection measures based on her ethnicity, her race or her membership of any particular social group or for any other reasons mentioned in s.5J(1)(a).
Having considered both ss.5J(2) and 5J(1), the Tribunal finds that, if the applicant were to return to her home state of Kelantan or anywhere within Malaysia, she does not have a real chance of serious harm for any reason mentioned in s.5J(1)(a), now or into the reasonably foreseeable future.
Given there are no other residual claims to consider in this review application, the Tribunal, accordingly, finds that the applicant does not satisfy s.36(2)(a).
Complementary Protection Provisions

Under s.36(2B), there is taken not to be a real risk of significant harm if 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’: s.36(2B)(b). Section 36(2B)(b) refers to an applicant obtaining, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm. In MIAC v MZYYL, the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[1] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[2] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect level of protection.
[1] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.
[2] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).
In considering the country information in the applicant’s accepted circumstances discussed under effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state authorities to the applicant if removed from Australia to anywhere within the applicant’s country of reference, will reduce the risk of significant harm to below that of a real one. Based on the Tribunal’s credibility findings and the Tribunal’s assessment of country information outlined above, the Tribunal is satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that she will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm either in Kelantan specifically or throughout Malaysia more generally.
Based on these ‘real risk’ findings arising from the applicant’s accepted circumstances, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, there is a real risk the applicant will suffer significant harm outlined in s.36(2A).
Accordingly, the Tribunal finds that the applicant does not satisfy s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
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 2681

22 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice