1613865 (Refugee)
[2017] AATA 991
•24 May 2017
1613865 (Refugee) [2017] AATA 991 (24 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1613865
COUNTRY OF REFERENCE: Malaysia
MEMBER:Peter Vlahos
DATE:24 May 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 24 May 2017 at 11:55am
CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Buddhist – Conversion to Islam – Dispute with girlfriend’s father over religion – Credibility – Evidence inconsistent, vague, lacking in detail – Delay in application for protection
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan(1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
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] August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] April 2016. The delegate refused to grant the visa [in] August 2016.
The applicant appeared before the Tribunal on 19 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin dialect and English languages.
The applicant was not represented at the hearing by a legal representative or by registered migration agent.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect to the applicant, [name].
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (the ‘Department’), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has assessed his claims against that country in relation section 36(2) and 36(2)(aa) of the Migration Act 1958 (as amended and hereinafter referred as the ‘Act’).
On the basis of the abovementioned reasons, the Tribunal further accepts the applicant’s identity as is claimed.
Background
The applicant arrived in Australia from Malaysia as the holder of [temporary] visa [in] March 2013 and [in] June 2013 his [temporary] visa expired. The applicant remained unlawful in Australia until [in] April 2016, he applied for a Protection visa (Class XA) and was also granted by the Department a bridging visa.
The applicant’s claims for Protection
The applicant’s claims can be summarised as follows:
§ The applicant claims he left Malaysia because he was planning to marry his partner but her parents disapproved of the union and they were forcing him to convert to Islam.
§ The applicant claims he is a Buddhist.
§ The applicant claims it is impossible to marry a Muslim without converting and this is the reason why he left Malaysia.
§ The applicant thinks that his partner’s father will force him to convert to Islam otherwise he cannot marry his partner or be together.
§ The applicant claims he has not experienced harm in Malaysia.
§ The applicant claims that his partner’s father will kill him and he believes the authorities have been bribed and cannot protect him.
§ The applicant would relocate to [Country 1].
The Tribunal read the above-mentioned claims to the applicant at the hearing and asked the applicant, if he wished to vary, amend, exclude or to add to his claims. The Tribunal was told that the applicant had no changes to make.
Evidence at the Hearing
Background – family, school and employment
The applicant [name] was born in Malaysia in [year] and lives in Batu Pahat, Johor, Malaysia. He has resided there, the Tribunal was told all of his life and it there that his immediate family members reside. His family consists of his parents, [and siblings]. The Tribunal was told that the applicant had completed his education up and including [number] form (which was completed in [years]). After the applicant completed his education, he told the Tribunal he worked for a number of employers doing various odd jobs and was also a part-time employee in his father’s [business].
The applicant is a Chinese Malay and of the Buddhist faith.
His issues in Malaysia requiring him to leave and come to Australia
The Tribunal was told that the applicant’s fortunes dimmed dramatically in Malaysia when he met and fell in love with a Muslim Malay girl called [Ms A]. [Ms A] (according to the information provided by the applicant in his application form) originates from Kota Baharu, Kelantan, Malaysia. The Tribunal asked the applicant when and where he met his girlfriend and his response was ‘…let me think…’ and after a pause, the applicant told the Tribunal that ‘…I forget sorry…’ The applicant was then asked – how long was his relationship with [Ms A]? The Tribunal was told that the relationship was for ‘…less than year…’ before the applicant left Malaysia for Australia.
The applicant was asked whether he continued to correspond or kept in contact with [Ms A] and the Tribunal was told that there was communication via social media and by the mobile phone. The applicant also told the Tribunal that [Ms A] was currently in Australia and living in [town]. The applicant was asked – why [Ms A] was not present with the applicant at the Tribunal hearing lending her support to his claim for protection. The applicant explained to the Tribunal that he did not think it was necessary for his girlfriend, [Ms A] to attend the hearing and support his claim for protection.
The Tribunal was then told that the applicant was forced to leave Malaysia because [Ms A]’s father also a devout Muslim Malay had threatened him to either convert to Islam or cease his relationship with his daughter. Moreover, [Ms A]’s father, the Tribunal was told, directed threats of ‘killing’ the applicant if he continued to maintain his relationship with his daughter without his conversion to Islam. The applicant told the Tribunal that he has openly resisted [Ms A]’s father’s demands to convert.
The Tribunal asked the applicant what did his family think about the issue of conversion as demanded by his girlfriend’s father and his relationship with this girl. The applicant told the Tribunal that ‘…of course (his family) would object to my conversion…’ from the Buddhist faith to Islam. However, he offered no further details when asked further by the Tribunal.
The applicant was asked whether he could (with his girlfriend) live peacefully in another part of Malaysia. The applicant described that alternative as ‘…impossible…’ According to him any attempted relocation to any major city of Malaysia would be a waste of time because his girlfriend’s father would locate him. Also, his girlfriend’s father would send someone to force him to convert to Islam. The applicant also told the Tribunal that the issue (as he understood it) of religion in Malaysia today, is a very sensitive one. People, according to the applicant would look at him disapprovingly if he was seen in public a ‘Chinese Malay’ with a ‘Muslim Malay’ as his partner. Indeed, the applicant felt that Muslims, in particular, would query the relationship when confronted with it.
Did the applicant experience ‘harm’ while in Malaysia?
While in Malaysia, the applicant had experienced threats but no actual physical harm. He told the Tribunal that his girlfriend’s father would ‘threaten to kill him’ if he continued his relationship with his daughter without taking the steps towards his conversion to Islam. Nevertheless, the applicant felt threatened by this and decided to flee to Australia.
While Australia – what is the applicant’s situation?
The applicant told the Tribunal that he did not think that his girlfriend’s father knew that both the applicant and his girlfriend were together in Australia. The applicant was also of the opinion, that while here in Australia, the girlfriend’s father could do nothing to him. However, matters would be very different if the applicant returned to Malaysia and chose to continue the relationship. Eventually, he would be forced to end his relationship with his girlfriend.
The applicant was asked by the Tribunal why he remained ‘unlawful’ in Australia for the period [date] June 2013 to [date] April 2016. The applicant’s explanation to the Tribunal was that when he arrived in Australia he did not know until much later that he could make an application for protection visa.
If the applicant was sent back to Malaysia in the reasonably foreseeable future what would he do?
The applicant made it clear to the Tribunal that if he was to return to Malaysia in reasonably foreseeable future he would flee to [Country 1]. The applicant told the Tribunal that his girlfriend’s father would know when he was in Malaysia. The Tribunal asked the applicant – how would his girlfriend’s father know of his arrival in Malaysia. The applicant told the Tribunal that his girlfriend’s father was actively involved in politics and it would be easy for him to locate his whereabouts. Furthermore, when asked about the political involvement of his girlfriend’s father, the applicant described it as the girlfriend’s father being a member of the ‘UMNO’ which had a network of people throughout Malaysia and was therefore capable of locating the applicant if he returned to Malaysia. The applicant offered no further explanation of these political links as he had described them to the Tribunal.
He also went on to say that the girlfriend’s father had possession of his picture and had published it on the internet and this meant that the applicant’s whereabouts could be found and tracked wherever he was but no evidence of his picture was provided to the Tribunal as published on the internet.
What is the applicant currently doing in Australia?
The Tribunal was told that the applicant is not currently employed. When the applicant was asked how he was living in Australia, he told the Tribunal that he had secured the rental of a residential property which was sub-letted to other sub-tenants and he would collect the rental for the landlord for a fee payment and also secured for himself free lodgings.
Again, the applicant told the Tribunal that his return to Malaysia would cause him harm because he could not have a relationship with his girlfriend without him being forced to convert to ‘Islam’ and that his continuous refusal placed him in harm’s way because of his girlfriend’s father’s attitude. Overall, the applicant described his country, Malaysia as a country that does not subscribe to human rights.
FINDINGS - Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (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.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not 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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
Overall, the Tribunal has a number of significant concerns with the claims of the applicant which were inconsistent, vague and lacking in detail. The applicant’s specific written claims of past harm at the time of application were very limited in detail. Despite being given the opportunity to elaborate on the applicant’s claims that he is owed Australia’s protection obligations, the applicant’s oral testimony remained vague, hesitant, unsubstantiated and lacking in detail, inviting the Tribunal to consider that both the written and oral claims for protection were not credible.
The Tribunal does accept and find that the applicant is a Chinese Malaysian and a follower of the Buddhist faith as he claims.
The applicant told the Tribunal that he has continued his relationship with his girlfriend. He also told the Tribunal that contact between the applicant and his girlfriend has seen her come to Australia where unbeknown to her parents she has continued her relationship with the applicant. Indeed, in his evidence to the Tribunal the applicant admitted that his girlfriend was here in Australia but had not come with him to the Tribunal as his witness because he thought that the Tribunal only required him to attend the hearing. The Tribunal does not accept this explanation of the applicant as credible. The applicant had been provided with a hearing notice from the Tribunal advising him of the hearing date and of the Tribunal’s willingness to hear from any witnesses the applicant wished to present to the Tribunal to hear their evidence on his behalf. If the applicant was in a relationship with a Muslim girl which had caused him such an upset in his personal life as he claimed, it stands to reason that the applicant would have made full use of the opportunity presented to him by the Tribunal to provide it with all evidence available concerning the issues he had experienced because of his relationship with his girlfriend. Therefore the Tribunal finds that the applicant was not in a relationship with a Muslin girl called ‘[Ms A]i’ as he claimed.
The applicant claims to fear harm from the parents (and in particular, his girlfriend’s father) who are forcing him to convert to Islam in order to continue with his relationship with their daughter. He (the applicant) also claims that his girlfriend’s father is a member and influential figure in the political organisation of Malay Muslims known as the ‘UMNO’ and has networks throughout Malaysia which cause him not to have a safe haven to escape to except to flee and come to Australia. The Tribunal does not accept this explanation as credible. The applicant provided vague information and minimal detail to the Tribunal of his girlfriend’s father’s political involvement or of his membership with a political organisation of Muslims in Malaysia as he claimed. The applicant by his own evidence provided to the Tribunal admitted that he had not been actually physically harmed while being in Malaysia but only warned that a relationship would not be allowed by his girlfriend’s parents without his conversion to Islam. Therefore the Tribunal does not find that the applicant faced or faces life-threatening situation if he were to return to Malaysia because of his girlfriend’s father’s opposition to his relationship with his daughter.
The applicant remained ‘unlawful’ in Australia for the period commencing [date] June 2013 to [date] April 2016, when he applied for a Protection visa. In his evidence to the Tribunal (see paragraph 26), the applicant claimed that the delay in making his application for protection was because he did not know about the protection visa. The Tribunal does not accept this explanation as credible. The applicant in his evidence to the Tribunal stated that he left Malaysia because he felt threatened by his girlfriend’s father’s threats levelled at him to convert to Islam if he wished to continue his relationship with his daughter. The applicant refused to convert. Australia, was according to the applicant his only refuge. It stands to reason, that once in Australia the applicant would have explored his options for protection (if he actually faced a threat in Malaysia as he claimed) sooner, than after a period of three years and also after being unlawful in Australia for that period of time. Therefore the Tribunal concludes that such a lengthy delay in applying for protection once in Australia, is an indication that the magnitude of the applicant’s fears as he claimed of facing persecution in Malaysia if he returned there was minimal.
For the foregoing reasons, the Tribunal does not find the applicant’s evidence about his relationship with his girlfriend, or anything resulting harm to him by her father in Malaysia, to be credible.
For those reasons, given in paragraphs 38 and 40 above, the Tribunal does not accept that there has been an ongoing dispute between the applicant and his girlfriend’s parents (and in particular, her father), as he has claimed, nor that there is a real chance that he will face persecution involving serious harm because of his relationship with his girlfriend and that as a result of this dispute the applicant has been harmed or threatened with harm as a consequence of his relationship with his girlfriend. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Migration Act (as amended). 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) of the Act.
The Tribunal having concluded that the applicant does not meet the refugee criterion in s.36 (2)(a) of the Act, the Tribunal has considered the alternative criterion of complementary protection in s.36(2)(aa) of the Act. For the reasons given in paragraph 32 and 33 above, the Tribunal does not accept that the applicant was forced to flee Malaysia due to his relationship with his girlfriend who was a Muslim Malaya, as he had claimed, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm because of his relationship with his girlfriend or that he is involved in an ongoing dispute with his girlfriend’s parents (in particular, her father) because of his relationship with their daughter. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2)(aa) of the Act.
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.
Peter Vlahos
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
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.
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.
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.
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.
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.
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
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.
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Procedural Fairness
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Judicial Review
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