1616551 (Refugee)

1616551 (Refugee) [2017] AATA 2833 (13 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616551
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Paul Windsor
DATE:13 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 November 2017 at 3:26pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Victims of loan sharks – Physical violence – Criminal gangs – Witness credibility

LEGISLATION
Migration Act 1958, ss 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] 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] June 2016. The delegate, noting that the applicant had provided minimal detail and no supporting evidence regarding his situation, refused to grant the visa on the basis that they found that the applicant would receive effective protection from the Royal Malaysia Police (RMP) and judiciary in Malaysia against any threats he faces from illegal money lenders. The delegate also found that the protection the applicant could obtain, from an authority of the country, is such that there would not be a real risk that the applicant would suffer significant harm.
The applicant applied to the Tribunal for review of this decision on 7 October 2016.
The applicant appeared before the Tribunal on 8 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
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
In his Protection visa application[1] the applicant claims to be a citizen of Malaysia who was born in [his home town in] Malaysia on [date]. He states that he belongs to the Hindu ethnic group, is a Hindu, and speaks, reads and writes Tamil, Malay and English. He indicated he never married or been in a de facto relationship. He did not provide any details regarding family members, employment, education or previous addresses outside Australia. He indicated that he departed Malaysia legally and entered Australia as a visitor, but did not indicate his date of departure from Malaysia or entry to Australia.
[1] See folios 11-23 of Departmental file [number].
Claims from the Protection visa application
The applicant’s claims as set out in Part C of his Protection visa application[2] are summarised as follows:
·He borrowed money from a money lender and could not pay the money back.
·The money lender made a lot of problems. He was beaten very badly.
·If he goes back the money lender will find him easily and will kill him.
·People are scared to help him.
·The Police cannot help with a money problem.
[2] See folios 12-14 of Departmental file [number].
Evidence from the hearing of 8 November 2017
At the start of the hearing the applicant indicated that everything he had put in his Protection visa application was true and correct as far as he knew and believed. He said there were no mistakes he wished to correct. When asked if he had any help with his application the applicant said he was on a farm in [a named town] and he told an elderly man his concerns and worries and this man helped him fill out the form. He indicated that the contents were not read back to him, he just signed the form. The applicant indicated that he had a friend who suggested that he go to [this town] to pick fruit so he could make some money to help with his problems.
Contrary to the information in his application the applicant indicated that he married in March 2005 and has [number] children aged from [age range]. He indicated that his wife and children live with his [Relative A] in Ipoh in Perak state Malaysia. He said his wife works in a factory [with specified duties].
The applicant indicated that he had undertaken a variety of work in [Country 1] and Malaysia prior to coming to Australia, such as [list of various occupations].
The applicant indicated that he had been working in [Country 1] [at a particular occupation] when his father became unwell. He said he returned to Ipoh and married in 2005 because his father wanted to see him marry. He indicated that his father passed away within a year but his mother pressured him to stay on in Ipoh to care for her. He indicated that he had been working at a [business] where his father had worked and the boss invited him to continue working there. He commented that he worked there for more than two years. He said that while working there he had financial difficulties as his pay was low and he had to make repayments on his car (RM [amount] per month) which he said he acquired for RM [price] (to be repaid over [number] years) in 2005, and meet the loan repayments on his father’s house. He said he got a letter from the bank saying he was not keeping up his car repayments and was worried that the bank would take his car and auction it and that he could be black-listed by the bank. He commented that he thought if he was black-listed by the bank things would be very tough for him. The applicant said he sought a loan from his boss but his boss refused. He indicated that he wanted to go to [Country 1] but his mother did not want him to do that. He said his [Relative A] and relatives could not help him financially so a friend introduced him to a [particular] fellow who loans money at a very high interest rate. He said he thought he could settle all his debts and then pay this man back.
The applicant said he borrowed RM [principal] from a money lender to pay off his car loan and other debts. He indicated that he thought this was around August 2015 because it was around the time of the Hindu festival of Diwali. He said he had to pay [number] per cent interest per month.
The applicant indicated that, after his boss failed to pay him the usual end of year bonus in 2015, he changed his employment to [another occupation], on a daily wage, because he thought that would give him a higher overall income. He claimed that after [number] days, however, he suffered a [specific] injury and could no longer do that work. He said he could not meet his repayments and got into a lot of arguments with the money lender. He said that in around February 2016 the money lender got some people to beat him up. He said he was told to settle his debt within two days or they would burn him and his house. He said after that he feared for his life so went to Kuala Lumpur and then came to Australia in March 2016. He said he has [siblings] in Kula Lumpur who loaned him the money to come to Australia.
Findings and reasons
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
On the basis of the copy of the applicant’s Malaysian passport provided to the Department[3], the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as he claims it to be. The Tribunal accepts that Malaysia is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Credibility
[3] See folio 24 of Departmental file [number].
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.)
Assessment of claims
The Tribunal finds that the applicant is not a credible witness. The Tribunal does not accept that the applicant borrowed RM [principal] from a money lender in Malaysia. Accordingly, the Tribunal does not accept that in around February 2016 the applicant was very badly beaten by some people associated with a money lender and told that he had to settle his debt within two days or he and his house would be burned, or that a money lender will seek to find him and kill him if he returns to Malaysia. The applicant provided little detail to support his written claims. The Tribunal has reached this conclusion following consideration of the applicant’s oral evidence at the hearing, for the following reasons, taken cumulatively.
Firstly, when queried about why he would take a loan from an unauthorised money lender at a very high interest rate to pay off debts that would leave him with the same overall debt but at a much higher interest rate, the applicant could not offer a plausible explanation. He commented that he was trapped and not thinking clearly.
Second, when asked what the interest rate was on the claimed loan from the unauthorised money lender the applicant said it was [number] per cent a month. When asked what his monthly repayment was he replied that it was RM [repayment amount] per month. When the Tribunal put to the applicant that the monthly repayment for an interest rate of [number] per cent a month would be RM [fifty times higher] than [the repayment amount he claimed], the applicant said it was not that amount. When the Tribunal commented that it would expect that he would know how much he had to pay each month, he commented that his wife took his pay and she gave the money lender whatever they owed. He indicated that of his monthly salary of RM [salary] he gave his wife RM [portion]. He said his wife also worked. The Tribunal put to the applicant that even if the monthly interest rate was [a third of the rate he claimed], they would have to pay [a large amount] each month to service the debt. The applicant said that the money lender said to him that he could just pay the monthly interest and his wife said she was paying RM [amount] a month whereas previously they had been paying RM [amount] a month for his car and RM [amount] a month for their house. The Tribunal put to the applicant that this amounted to an interest rate of only [number] per cent a month and put to him that it did not seem plausible that an unauthorised money lender would loan money to him at [an interest rate that low]. The applicant replied that the money lender took receipts for his wife’s jewellery. The Tribunal found that the applicant’s account of the interest rate levied on the claimed loan and the claimed amount of the monthly repayment was vague, inconsistent and unconvincing. The Tribunal does not accept that if the applicant had borrowed RM [principal] from an unauthorised money lender he would not have a clear sense of the monthly interest rate and monthly repayments. As discussed with the applicant, based on country information regarding the very high monthly interest rates charged by illegal money lenders in Malaysia (typically 30 per cent a month)[4], the Tribunal does not accept that a money lender would agree to a monthly interest only repayment of RM [amount], which represents an interest rate of only [number] per cent per month.
[4] 2003, ‘The Long and Short of the “Along” Problem’ The Malaysian Bar, 30 May. Sourced at >
Third, when queried whether the money lender took his wife’s jewellery when they failed to maintain their repayments, the applicant commented that he did not. When queried why the money lender would not have done that if he had all the receipts, the applicant initially commented that he thought the money lender was only threatening to take the jewellery. He then said the money lender needed to get his wife’s consent. Noting that the applicant had claimed that he was tied to a chair and beaten, and threatened that he and his house (where his mother, wife and [children] lived) would be burned, the Tribunal finds this explanation unconvincing. The Tribunal considers that if the applicant was indeed being threatened in the way he claims, he and his wife could have found ways to continue to meet their monthly repayments, including through a combination of selling some jewellery, using his wife’s salary, and/or borrowing from relatives. The Tribunal found unconvincing the applicants comments at the hearing that they could not meet the monthly repayment through his wife’s salary as they had to deal with other expenses. When pressed on what these expenses were, the applicant could not provide detail but commented that apart from the usual expenses and bills he became very despondent because his wife and mother criticised him, and he took to drinking, squandering a bit of money. The Tribunal also found the applicant’s statements at the hearing regarding the capacity of his relatives to assist him financially to be contradictory. Early in the hearing he said he was not close to his [number] siblings and that when he asked his relatives if he could borrow money from them none could help. However, when asked later in the hearing how he could afford to travel to Australia if his financial circumstances were so dire that he could not meet a RM [amount] monthly repayment, the applicant said his [siblings] loaned him the money.
Fourth, the Tribunal asked the applicant at the hearing if the money lender’s people, after beating him up in February 2016 and threatening to burn him and his house if he did not settle his debt within two days, did actually burn his house after he fled to Kuala Lumpur without settling the claimed debt and then to Australia in March 2016. The applicant said they did not. He said his [Relative A] went to the money lender and ‘sweet-talked’ him, telling him he would get the money ‘one day’. When the Tribunal put to the applicant that surely in such circumstances the money lender would go to his wife, who he had indicated was handling payment of all their expenses, and would seek to take her jewellery, the applicant replied that his [Relative A] told the money lender he had gone. When pressed that, based on media reports regarding how illegal money lenders operate in Malaysia[5], The Tribunal would expect that, in his absence the money lender would harass his wife, mother and [Relative A] for payment, rather than be put off, the applicant altered his account and stated that he has been working in Australia and sending money to his wife who is paying the money lender. The Tribunal found that this evidence was not given spontaneously but only after sustained questioning regarding the implausibility of the applicant’s account. The Tribunal did not find this evidence convincing.
[5] 2013, ‘Loan shark menace worsens in M’sia’, the Sun daily, 2 October. Sourced at type="1">
Fifth, the Tribunal queried the applicant why his [Relative A] had been able to sweet-talk the money lender when he claimed he had been tied to a chair and badly beaten by the money-lender’s people. He replied that he got very aggressive with them because they were abusing his wife and mother and he was fighting back and that may have angered them. The Tribunal also found this statement to be unconvincing. The Tribunal does not accept that a money lender who allegedly arranged for the applicant to be tied to a chair and brutally beaten and threatened that he and his house would be burned if he did not settle his debt in two days, could then be sweet-talked by someone who initially was offering no more than the comment that the applicant was gone, they did not know where he was, but not to worry as the money would be paid back ‘one day’.
Considering cumulatively the poor quality and unconvincing nature of the applicant’s evidence at the hearing, as discussed above, the Tribunal concludes that the applicant did not borrow RM [principal] or similar sum from an unauthorised money lender in 2015. It follows therefore that the Tribunal does not accept that the applicant failed to meet repayments on such a debt, was assaulted in February 2016 and threatened as a consequence, and subsequently fled to Australia in March 2016 fearing for his life from an unauthorised money lender and their associates. The Tribunal concludes therefore, that the applicant does not face a real chance of serious harm or a real risk of significant harm from an unauthorised money lender and/or their associates should he return to Malaysia in the foreseeable future.
As the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from an unauthorised money lender and/or their associates should he return to Malaysia in the foreseeable future, the Tribunal does not consider that the applicant would require the protection of the Malaysia authorities.
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). Having regard to the findings of fact set out above, the Tribunal also is not satisfied that there is a real risk that the applicant would suffer significant harm from an unauthorised money lender and/or their associates, or anyone else, as a necessary and foreseeable consequence of being removed from Australia to Malaysia. It follows therefore that 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.
Paul Windsor
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, ‘70% of loan shark lending made over the phone’, Free Malaysia Today, 4 January. Sourced at

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Citations

1616551 (Refugee) [2017] AATA 2833

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

MIMA v Rajalingam [1999] FCA 179

[2017] AATA 2833

13 November 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction