1615493 (Refugee)

1615493 (Refugee) [2017] AATA 1670 (4 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615493
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Melissa McAdam
DATE:4 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 04 September 2017 at 11:13am

CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Trans-gender people – LGBTI persons – Lesbians – Pengkid – Sexual identity – Verbal and physical abuse – Religious fatwas – Government’s hostile public stance – Effective protection

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa [in] May 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information provided by the applicant in her Protection visa application:
a.She was born on [date] in Ipoh, Perak, Malaysia. She submitted her Malaysian passport issued in [location] [in] January 2016.
b.She is ethnic Malay and of Muslim religion.
c.She has been in a de facto relationship since August 2015.
d.She came to Australia [in] February 2016.
e.She grew up in a broken family which taught her to be tough and strong. She was surrounded by boys as childhood friends. She became more boyish and acted as a boy.
f.She is deciding whether to become a transgender male because she has a lover who is her gender.
g.She has faced family opposition because she grew up Muslim. She was thrown out by her family.
h.She has been insulted by the public and harmed. People have made fun of and beaten her. She sought protection from the police but was shamed.
i.She was told to leave Malaysia because Islam does not accept transgender people.
Departmental Interview
There is no record of the applicant being invited to a Departmental interview or of being interviewed.
Delegate’s Decision
The Delegate found there was limited available information about the applicant’s particular circumstances in Malaysia, and that she did not provide information about how she expresses her sexual identity or her past experiences as a transgender person.
The Delegate considered that the applicant had not provided sufficient evidence to establish her claim of being transgender.
The Delegate considered that the available country information confirmed there was a moderate risk of daily discrimination but that LGBTI persons experience varying degrees of tolerance.
The Delegate was not satisfied that any discrimination faced by the applicant in Malaysia amounted to persecution.
Information to the Tribunal
The applicant submitted several photographs of herself with her partner, to the Tribunal.
The applicant appeared before the Tribunal on 29 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. Her partner, [named], also attended the hearing. The following is a summary of the information provided by the applicant at the hearing:
a.She identifies as female and so does her [partner], who prefers to call herself ‘[Ms A]’.
b.She was born in Ipoh Perak but after she completed school she moved to Kuala Lumpur.
c.Her family live in Ipoh Perak. She no longer has much contact with her family. She has tried to keep in contact with them but they do not respond to her. She was able to contact her [sibling] on [social media] a few months ago but when she asked how her parents are her [sibling] broke off the contact.
d.She is Muslim but does not consider herself a religious person. Her family are Muslims.
e.She applied for a Protection visa because she is not accepted by her family or society in Malaysia. People think she is weird and dirty. This is because she is Muslim but she is attracted to women, not men.
f.She and [Ms A] live together in Australia. There are other people in the household and they know the applicant and [Ms A] are a couple.
g.Malaysians in Australia know the applicant is in a relationship with [Ms A]. Some of them were shocked and some not as they knew she and [Ms A] had been together in Malaysia.
h.She and [Ms A] met at work in Malaysia and have been in a relationship since August or September 2015. The applicant had been in a previous relationship but it was not serious like this one with [Ms A]. They love each other and want to marry. A Malaysian friend told them they could marry in some states in Australia. Even if they can’t marry here they would prefer to be in Australia because Australia protects human rights more than Malaysia does.
i.The applicant’s family know she is in a relationship with [Ms A] but they don’t accept it. They tell her to end the relationship. They have threatened her.
j.No one else amongst her family and relatives are LGBTI.
k.She had LGBTI friends in Malaysia in Kuala Lumpur. There were more people like her in Kuala Lumpur but they were still considered weird and dirty by others. She and [Ms A] could not be open about their relationship in Kuala Lumpur except amongst their friends.
l.People say bad and threatening words to LGBTI persons in Malaysia. Sometimes lesbians are raped in Malaysia to try to make them realise they are female. Some of the applicant’s friends have been sexually harassed and beaten.
m.The applicant was raised by her grandparents until they all died when she was [age] years old. She then moved back in with her parents. The applicant has been hit by her father often because he does not like how she is or her appearance. He is hot tempered and wanted her to have long hair and act like a real girl. Because her father hit her and tried to stop her being who she was she went to the police who arranged for her to live with [a relative] instead. But her father continued to come to [that relative’s] house to abuse the applicant. Because of this she got a job and moved out to live by herself. This was when she was [age] years old. It is not usual for children in Malaysia to move out of the family home like that. When she was [age] she moved to Kuala Lumpur by herself.
n.She has been beaten in public. When she was [age] years old she was at a restaurant in Kuala Lumpur when a group of men started harassing her and insulting her about how she looked. They called her ‘pengkid’ and told her she did not know she was female . They said if she was raped she would know who she was. This made her angry and she swore at them. Two of the men stood up and threatened to hit her and then one of them pushed her. She pushed him back and slapped him. Another man then punched her so she fell over. Then the men kicked her. They said she was lucky she was just being beaten and not being raped. The restaurant owner came over and stopped the men. He told the applicant to go to the police. She did but the police said there was nothing they could do and it was a small problem.
o.A Malay word for people like her is ‘Pengkid’. But she does not like to be called this word and prefers to be described as ‘PLU’, which stands for ‘People like Us’.
p.She wants to be able to live the way she wants and be how she wants to be without threat of being harmed and judged. She knows other Malaysians in Australia who are LGBTI. They come here so they can be themselves.
Country Information
The latest country information report from the Department of Foreign Affairs and Trade (DFAT - 2016), contains the following:
3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.
3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.
3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.
3.93 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a ‘re-education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government ‘viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.
3.94 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.
The US Department of State report on human rights practices in Malaysia for 2016 indicates that Malaysia’s human rights problems include ‘discrimination against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons’, and that ‘[r]eligious and cultural taboos against same-sex sexual conduct were widespread’.
The Human Rights Watch 2017 World Report on Malaysia states that ‘discrimination against lesbian, gay, bisexual, and transgender people is pervasive in Malaysia.
According to information on the DFAT ‘Smart Traveller’ website ‘[h]omosexual acts are illegal. Malaysian law currently provides for whipping and up to a 20-year prison sentence for homosexual acts involving either men or women’.
A May 2014 report[1] by the International Gay and Lesbian Human Rights Commission states that:
Lesbians, bisexual women, queer and transgender persons (transwomen and transmen), and other gender non-conforming people and communities currently face rising hostility, discrimination and abuses in Malaysia. They are unprotected by a political system, which is
geared towards promoting and imposing a specific vision of Malaysia.
…
With the state endorsing Islamic dominance in Malaysia, fatwa also plays a very important role in shaping non-religious public policies and enactment of secular laws. In 1983, the Council of Rulers imposed a ban on SRS for Muslims through a fatwa. Since then, many additional fatwas have been introduced to prohibit Muslims from changing their assigned gender on the national identification card and to prohibit Muslim women from masculine gender expression (i.e., pengkid, butch women or tomboys). Fatwas are enforceable only after they have been gazetted but many are treated as if they are law regardless of their gazetted status …
In October 2008, the National Fatwa Council announced a fatwa (Islamic edict or opinion) against pengkid, a term that loosely translates as tomboys for individuals in the Malay Muslim
[1] International Gay and Lesbian Human Rights Commission, 2014, ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Malaysia’, 6 May, who fall within the spectrum of lesbian butch and transman. The announcement of the fatwa against tomboys sparked protests from people, notably non-Malay Muslims. Many Malay Muslim conservatives, such as members of the National Fatwa Council, nationalist pressure groups, politicians, bloggers, and some members of the public, saw these protests of non-Muslims against the pengkid fatwa as interference in an Islamic matter. Presently, fatwas have been gazetted (officially announced to the public and published in a journal or state controlled newspaper) in the state of Malacca and the federal capital, Kuala Lumpur, to prohibit tomboy or tomboy behaviour.
The report also refers to lesbians facing physical and emotional violence from family members, verbal abuse or warnings from strangers in public places, and job discrimination, with some employers openly expressing ‘that they did not hire lesbians because they are “trouble”’. The same report indicates that in Malaysia, ‘[s]yariah laws criminalise Muslims for lesbian sexual relations (musahaqah)’:
While Malaysia may have inherited the British colonial laws that prudishly criminalise
consensual anal and oral sex acts (carnal intercourse) between adults, it is the current State’s identity politics and the institutional strengthening of Malaysia’s Islamization that has
witnessed the increasing importance and influence of state-administered syariah (sharia) or
Islamic law. Syariah laws criminalise Muslims for lesbian sexual relations (musahaqah), sex
between men (sodomy), sex that is considered “against the order of nature” (liwat), and for
“posing” or “impersonating” as the opposite sex (e.g., cross-dressing). Government
representatives actively reject sexual orientation and gender identity issues as human rights
issues in various national, sub-regional (such as, at the Association of Southeast Asian
Nations/ASEAN Intergovernmental Human Rights Commission) and international fora.
In September 2014, Human Rights Watch reported that from 2008 to 2010, seven states in Malaysia ‘issued fatwas against “pengkid,” which roughly translates as ‘tomboy’ or ‘masculine woman’. The fatwas, which have been gazetted in four states, specifically state that women who have a ‘masculine appearance or gestures’ or a ‘male sexual instinct’ are forbidden in Islam’. The fatwas were reported to ‘exist in Johor, Kedah, Kelantan, Malacca, Pahang, Perak, and Sarawak. They have been gazetted in Johor, Kedah, Malacca, and Perak’.[2]
[2] Human Rights Watch, 2014, ‘I’m Scared to Be a Woman – Human Rights Abuses Against Transgender People in Malaysia’, September, pp.11 & 75 & footnote 13.
CONSIDERATION OF CLAIMS AND EVIDENCE

The applicant submitted her Malaysian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Malaysia. The Tribunal assesses the applicant’s claims against Malaysia as her country of nationality and receiving country.
The Tribunal found the applicant’s evidence regarding her sexual orientation to be frank, coherent and reasonably detailed. She gave spontaneous and personalised information about growing up with the realisation she was a ‘tomboy’ and attracted to women, not men. She also spoke clearly of the negative reactions of others, including her family, to her behaviour, personality and appearance, and gave details of reflective instances. She gave coherent evidence regarding her relationships with women and the importance of her relationship with her partner, [Ms A], both in Malaysia and in Australia. The Tribunal found the applicant’s evidence persuasive and accepts that her sexual orientation is as she claims.
As stated by the applicant, her partner [Ms A] was previously an applicant before the Tribunal. The Tribunal has had regard to the information in this application and notes that [Ms A] gave supportive evidence in regard to her own and [the applicant’s] claims. The Tribunal, differently constituted, accepted [Ms A’s] claims and was satisfied she was owed protection obligations.[3]
[3] AAT Case Number 1617116.
The Tribunal accepts that the applicant has been both verbally and physically abused in Malaysia, by members of the general public and by her father. Her evidence was sufficiently detailed and evocative of genuine experience, as well as being consistent with available country information about the experiences of young lesbians in Malaysia.
Both the applicant and her partner [Ms A], presented at the applicant’s Tribunal hearing with short hair, wearing shorts and shirts, in what could be described as ‘tomboyish’ appearance. The Tribunal accepts that the applicant would be considered ‘pengkid’ in conservative Malay society.
The Tribunal considers that if the applicant returns to Malaysia she will again be at risk of both verbal and physical abuse as someone who is identified as a lesbian considered ‘pengkid’ by Malay society. The Tribunal also considers that she will face significant discrimination in obtaining accommodation and employment from many in the Malay community who disapprove of LGBTI people and who in particular are negatively influenced by the religious fatwas issued and the federal government’s public stance of hostility towards LGBTI people. On the basis of the applicant’s personal experiences and the available country information, including DFAT’s report, the Tribunal is satisfied there is a real chance of the applicant being subjected to both a high level of discrimination and serious physical violence in Malaysia. The Tribunal finds this is serious harm.
Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status. The Tribunal therefore finds that s.5J(3) of the Act does not apply to exclude the applicant from Australia’s protection.
The Tribunal considers that lesbians and women considered to be ‘pengkid’ are particular social groups in Malaysia in accordance with s.5L of the Act. The Tribunal is satisfied that the applicant is at risk of serious harm for the essential and significant reason of her membership of these particular social groups. The Tribunal is further satisfied that the harm she fears involve systematic and discriminatory conduct in that it will be done to her selectively and intentionally.
Given the State’s responsibility for creating and contributing to the risk of harm to the applicant, the Tribunal finds that there is no effective protection for her in Malaysia. The Tribunal also finds that the real chance of serious harm exists throughout Malaysia.
On the basis of the above reasoning the Tribunal is satisfied that the applicant has a well-founded fear of persecution, as defined in s.5J of the Act, in Malaysia. The Tribunal is therefore satisfied the applicant is a refugee as defined by s.5H of the Act.
There is no evidence or indication before the Tribunal that the applicant has a right to enter and reside in another country. The Tribunal accordingly finds that she is not excluded from Australia protection obligations by s.36(3) of the Act.
CONCLUDING PARAGRAPH
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Melissa McAdam
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1670

4 September 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice