1616021 (Refugee)

1616021 (Refugee) [2017] AATA 2204 (24 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616021
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:24 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 October 2017 at 5:46pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnicity – Chinese Buddhist – Forced Marriage to Muslim woman – Credibility concerns
LEGISLATION
Migration Act 1958, ss.36, 5H,5J, 5K-LA,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] 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 the Federation of Malaysia (Malaysia), applied for the visa [in] June 2016. The delegate refused to grant the visa on the basis that he did not have a well-founded fear of persecution as the applicant has effective protection measures available to him and that he did not have real risk of significant harm based ons.36(2B)(b).
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 to be born in [date of birth] in Sandakan in the Malaysian state of Sabah and to be a citizen of the Federation of Malaysia.,
A copy of the applicant’s valid passport is on departmental [file].
The applicant claimed to be ethnically Chinese (according to a submitted extract of the applicant’s birth certificate).
The applicant also claimed to belong to the Buddhist religion; and to be able to speak read and write English and Bahasa Malaysia and that he can speak and read Mandarin.
The applicant claimed that he has never married, been engaged or in a de facto marriage and claimed that he has no children.
The applicant arrived in Australia [in] April 2016 while holding a [temporary visa] and that he applied for a class XA subclass 866 protection visa [in] June 2016.
According to the applicant’s submitted 866C form, the applicant made the following limited claims for protection:
·The applicant claimed he departed Malaysia because he was forced to marry a Muslim girl that he befriended and claimed that her father thought he and his daughter had a relationship;
·The applicant claimed that the Muslim girl’s father he was threatened to marry her and if he did not the father’s gang will harm the applicant;
·The applicant claimed that the gang is a big gang in Malaysia and will find him anywhere within Malaysia;
·The applicant further claimed that he did not attempt to relocate else in Malaysia , except for moving to his [sibling’s] house after selling his own house; and
·The applicant does not think the authorities can or will protection him because they are the police can be easily bribed and he because they could not protect him all of the time.
A delegate for the Minister refused to grant the visa [in] September 2016. The applicant applied to the Tribunal to have the delegate’s refusal decision reviewed on 29 September 2016.
On departmental file is also an application for a bridging visa B for the purpose of departing and returning to Australia [in] January 2017. The applicant wrote that the purpose of departing to return to Sabah in Malaysia to visit his ailing [relative], to undertake funerary duties on behalf of his [father] and to settle a matter with a [bank]. Attached to this application is copy of letter dated [date] December 2016 from solicitors in Kota Kinabula outlining the outstanding amount of debt of around [amount] Malaysian ringgits owed by the applicant to [a bank].
On 6 October 2017, the applicant appeared before the Tribunal to provide evidence and present arguments that he was owed Australia’s protection obligations. He was assisted by an interpreter in the English and Mandarin languages and he did not have any representation through a registered migration agent or lawyer. No further submissions were required.
At the time of writing this decision, the Tribunal had not received any further submissions.
FINDINGS AND REASONS
Country of nationality
The applicant claims to be a citizen of Malaysia and provided copies of her passport to the Department with her protection visa application. 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
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.)
Applicant’s Accepted Circumstances
The Tribunal accepts the following straightforward aspects regarding the applicant’s circumstances:
·The applicant was born in [year] in Sandakan in the Malaysian state of Sabah as claimed;
·The applicant’s father has passed away and that his mother and [siblings] continue to reside in Sandakan;
·The applicant identifies ethnically as Chinese and that he belongs to the Buddhist faith tradition;
·The applicant has never married, been engaged or lived in a de facto marriage and that he has never had any children, as claimed;
·The applicant can speak read and write in English, Bahasa Malaysian and Mandarin;
·The applicant completed [school] and then completed a [qualification] in [year];
·The applicant worked in [another country] and held work visas between 2005 and 2008 as claimed; and
·The applicant then returned to Sandakan to assist his [sibling] and [another relative] in running the local family [business].
Force Marriage Claims
In the applicant’s vaguely written claims, the applicant claimed that he fears returning to Malaysia because a Muslim man will force into a marriage with his daughter. During the scheduled hearing the applicant elaborated on this claim that he befriended a Malay Muslim woman named [‘Ms A’] in March 2016. The applicant claimed that he was introduced to [Ms A] through a friend and he describe [Ms A] as aged about [number] of age but did not know her name.
The applicant claimed that he only met [Ms A] twice and on both occasions [Ms A] wore a t-shirt and jeans and did not wear a hijab. He said on both occasions they conversed in Bahasa Malaysian and the meeting were casual and they consumed alcohol. On the second occasion, the applicant claimed that he and [Ms A] met in a restaurant serving alcohol. He noticed that the woman did not eat non-halal dishes and claimed to be suspicious at this point that she was more religious than her causal appearances suggested. The applicant claimed that [Ms A] was ‘tipsy’ from the alcohol she had consumed and that he drove to her family home which was [not far from] the applicant’s then residence. On arrival, the applicant claimed that he was confronted by young woman’s father who said that his daughter was not allowed to date without his permission and he then angrily accused the applicant of sexual relations with his daughter. The applicant stated the father said “What did you do?” to which the applicant claimed he said they only had some drinks.
After this incident, the applicant claimed that father who misunderstood the relationship between him and his daughter found the applicant’s house and that the applicant invited them into the house with [number of] other men. The applicant further claimed the father said that ‘bad things had happened’ between his daughter and the applicant, that such relations were not allowed because she was single and Muslim; that the applicant had ruined her reputation and that he then aggressively demanded that the applicant marry his daughter.
The Tribunal’s significant credibility concerns about this claim are outlined below:
Firstly, the applicant has made a claim that he was being forced into a marriage by a conservative Muslim father; however, the woman in question was permitted by the same man to wear casual clothes with no hijab in public indicating that the father was not likely to accuse her.
Secondly, the applicant did not claim that the father of [Ms A] had conveyed any further threats to the applicant either directly or indirectly since arriving in Australia, either to him, his family members or friends. It noted that the applicant’s residence was known the allegedly enraged father and that the applicant’s family ran businesses in a relatively small city, making threats easy to convey. Had the father in question been genuinely motivated to harm the applicant through a forced marriage he would have persisted in protecting the reputation of his daughter by continuing his threats and harassment, either directly or indirectly. Had the father genuinely operated with a gang, as claimed, or even with sympathetic friends threats and harassment would have likely to have continued.
Thirdly, there were vague details about the account such as the inability of the applicant to provide a family or surname for [Ms A] or the reasons why a Malay Muslim man would force his daughter into marrying a Chinese Buddhist, given the ethnic and religious divide between conservative Muslims and Chinese non-Muslim Malaysians. Curiously, at no stage did the applicant advance the claim he feared forced conversion from Buddhism to Islam based on this claim, given Malaysia’s laws about Muslims marrying non-Muslims. This further indicated to the Tribunal that this vague claim was contrived for migration purposes.
Fourthly the applicant did not seek the protection of the police, although the applicant was aware that forced marriages were illegal in Malaysia, other than to state he was scared by the threats of forced marriage and he feared being reported to the police for his pre-marital relations or worse. If the characterisation of the enraged father were to be the case, it would have been reasonable for him to make a police report against the applicant. However the applicant did not advance this claim any further.
Fifthly and most significantly, the Tribunal enquired to the reasons the applicant had applied for a bridging visa to specifically depart to Sabah and to return to Australia and that he provided the partial reason for the visa application was to address his outstanding [debts]. The Tribunal enquired whether the applicant departed for Australia to help pay off his debts to which the applicant responded that he did not. The Tribunal put to the applicant that if he had a genuine or deep or urgent fear of persecution arising from being forced into a marriage as claimed, the applicant would not have made any application to depart for specifically for Sabah given his claims. The applicant said that he understood this but he wanted to return to for the reasons claimed and that he specifically feared his credit rating would be affected or that he become a bankrupt. It was also discussed with the applicant whether he had paid any of the outstanding amount to the bank as outlined in solicitor’s letter mentioned above. The applicant claimed that he had not because he been forwarding money to his [sibling] as the applicant was helping to pay his [relative] with his financial problems in the family businesses and that he struggled to make savings or instalments to the bank. The applicant added that the car had already been repossessed by debt collectors and the money from the sale of the family went to his mother. In the context of the documentary and oral evidence about the applicant’s debt to a licensed financial institution, the applicant has strongly invited the Tribunal to consider that the applicant does not have a genuinely personally held fear of returning to his home state of Sabah or Malaysia more generally for the claimed reason regarding a forced marriage. In the context of the documentary evidence about the applicant’s debt to a licensed financial institution, the applicant has strongly invited the Tribunal to consider that the application did not have a genuine or personally-held fear of persecution for the claimed reasons in any deep or urgent sense and that the claims regarding forced marriage had been embellished or fabricated solely for migration purposes.
In cumulatively considering the evidence regarding the applicant’s claims about being forced into marriage, the Tribunal does not accept the applicant has any credible or reliable written, oral or documentary evidence that the applicant was ever threatened to marry a Malay Muslim woman against his will. Despite being given a meaningful opportunity to elaborate on them, the applicant’s specific claims remain lacking in detail and plausibility. Critically for the Tribunal, the claims were substantially undermined by the applicant’s bridging visa application to return to Malaysia. In these circumstances, the Tribunal is unable to provide the applicant the benefit of the doubt based as its cumulative credibility concerns were so extensively adverse.
Accordingly the Tribunal finds that the applicant provided contrived claims regarding him being subjected into a forced marriage. It does not accept there was any young Malay woman named [Ms A] whose religiously motivated Muslim father ever threatened the applicant into forced marriage for the reasons claimed, or even forced conversion. Neither does the Tribunal accept that any gang members or any other people had been involved in any threats, intimidation or harassment as claimed for the reasons claimed. It does not accept these threats to be reason for the applicant’s departure or any other aspect raised about the applicant’s overall claim about forced marriage as the Tribunal finds the applciant’s dispositive claim for protection had been fabricated for migration purposes. As these specific claims are found to be contrived, the applicant does not have he had any genuine, personally-held or subjective fears of persecution based on his race, his religion, breaching any taboo based on marriage or any related or other reasons mentioned in s5J(1)(a), now or in the reasonably foreseeable future.

In this regard, the applicant does not have a well-founded fear of persecution that would satisfy s.36(2)(a).
Based on the same adverse credibility findings about forced marriage claims, the Tribunal does not accept that has any substantial reasons for it to believe that the applicant, as a necessary and foreseeable consequences of being removed from Australia to his country of reference, will face a real risk of significant harm of any kind, pursuant to s.36(2)(aa).
Applicant’s Indebtedness
For completeness, the Tribunal has also considered whether the applicant will face a real chance of serious harm or a real risk of significant harm arising from the accepted claim that the applicant has debts owing to a licensed financial institution. It is noted the applicant did not claim to have any debts outstanding to any unlicensed money lenders or that his debts related to his ethnicity or religion.
The Tribunal finds that the applicant does face a real chance of harm by paying this debt down, through the risk of having his credit rating adversely downgraded or through bankruptcy. However the Tribunal finds that he amount owing is not a considerable or even a crippling sum [amount of money], if the applicant were to return to Malaysia in the near future. It is also noted that the applicant has the support of his entrepreneurial family; that he has a skills qualification and experience with a real chance in finding employment; and that he is so highly motivated to settle his debts he attempted to return to Malaysia to address his indebtedness. Although dealing with debt and the banks may be onerous, the Tribunal does not accept the harm arising from the applicant’s accepted indebtedness will amount to serious harm that would satisfy any of the serious harm non-exhaustively listed in s5J(5) or s.5J(4)(b) based on his personal circumstances. Furthermore, the Tribunal finds that the harm directed towards the applicant is not for any of the reasons mentioned in s.5J(1)(a).
In this regard, the applicant does not have a well-founded fear of persecution, pursuant to s.36(2)(a).
Based on the same accepted circumstances about the applicant’s indebtedness, the Tribunal finds that there is a real risk of harm, as a necessary and foreseeable consequence of being removed from Australia, pursuant to s.36(2)(aa)
However it finds that the harm does not amount to any significant harm as outlined in s.36(2A), including cruel or inhuman or degrading treatment or punishment, in being able to repay his debts, having his credit ratings downgraded or being found to be a bankrupt. Accordingly there are no substantial reasons for the Tribunal to believe that the applicant, as a necessary and foreseeable consequences of being removed from Australia to his country of reference, will face a real risk of significant harm in this regard.
Cumulative Findings
Having cumulatively assessed all the applicant’s claims and accepted circumstances, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a),(b) or (c), if he is returned to the Federation of Malaysia, and does not satisfy the criterion in s.36(2)(a).
Based on the same findings, cumulatively considered, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Federation of Malaysia there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treating or punishment, pursuant to s.36(2)(aa) of the Migration Act.
Conclusions
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 2204

24 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction