1617804 (Refugee)

1617804 (Refugee) [2018] AATA 1693 (18 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617804
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Sean Baker
DATE:18 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 May 2018 at 5:07pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Muslim – Social group – unmarried relationship with mature woman – Fear of harm by partner’s family – Fear of forced marriage – Contravene Islamic social mores – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 424A, 499
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 on 14 October 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 on 17 June 2016.
The applicant’s partner, [Ms A], has also applied for protection. However, she made her protection application, and the application for review, separately (file 1617803).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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 in Malaysia and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant made claims in his application for protection. They can be summarised as follows:
·He is in a relationship with a mature woman, [number of] years his senior and they lived together for [a few] years when they were in Malaysia. Under Islamic law such de facto relationships are not allowed without marriage, they have no plans to marry due to the age gap;
·If they return, their religious families will force them to marry suitors of the families’ choosing;
·He has indicated he was not harmed in Malaysia;
·He did not move to another part of the country as his financial status was not stable as he did not have a permanent job. They cannot move as their families are still confronting them as they are staunch Muslims;
·He has indicated that the police and the court will protect them.
The applicant lived in Kuala Lumpur in Malaysia and worked as [an occupation]. His family live in Kelantan. He is working in [Australia].
On the basis of the information on file and for the purposes of this review I accept that the applicant is a national of Malaysia, which is also his receiving country. I find on the evidence before me that the applicant does not have a right to enter and remain in any third country.
The delegate refused the application. The applicant provided a copy of the delegate’s decision to the tribunal.
Credibility
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (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).
Harm for de facto relationship
I have concerns with the claims that the applicant will be harmed because of his unmarried relationship with a mature woman.
His claims about this in his written application were undetailed. At hearing he claimed that he had received threats from his partner’s brother. He said it was just her brother, not any other members of her family. He said the brother had threatened him in 2013, 2015 and 2016. He said the threats were messages, threatening to kill him and asking him to marry his partner but he refused to. He said that the brother had threatened to kill him in February 2016, in the earlier threats the brother had just wanted to beat him up.
I asked if he had reported these threats to the police and he said he had but after he had lost the copy of the report, before he made the visa. He said he had been looking for the copy but had not been able to locate it – he thought maybe it was in his house but he was still looking. I asked if he had gotten a further copy from the police station. He said he had asked but was told that the complainant had to be present. I asked when he had lost it and he said in March, after he got here. I asked had he not earlier said he had lost it before he got the visa to come here and he said he had meant the protection visa, not the holiday visa. He then said that it had been lost in Malaysia, before he came here. I noted that his evidence on this seemed to be changing, and this, coupled with the fact he had not mentioned the police report in his written claims caused me to have concerns over whether there was a police report at all. He said he had not stated in his written claims that he had a police report because if was lost, but he was convinced it is at home in Malaysia, he said in the home he owned in Malaysia. He said he would call his family to look for the report. I noted I had some concerns he had not provided the report yet and noted that he had been refused by the Department and asked why he had not asked his family to look for it then. He said because he had looked for it and not found it so he did not write it down.
I noted that even if he had felt he could not write down the police report as he had lost it, he also did not seem to have written down that he had been threatened by his partner’s brother nor that he had gone to the police. He said again that he did not write it down as he did not have the evidence. He clarified that he meant he did not have the report and in relation to the threats he had lost his phone that the threats were on.
The applicant said that his partner’s brother had never harmed him, he had merely threatened him. I noted the brother had had three years to do something and had not, which might make me think all the brother would do would be to make threats. The applicant agreed but said that he was afraid to go through all of that. He said he was convinced the brother will carry it out and that was why he made a police report. He said he had not had any problems with anyone else for living together with his partner without being married other than her brother and her family. I asked what other problems he had had with her family and he said the family were putting pressure on them to get married but they refused as they were not prepared for it, they just continued to live together.
I asked if he had suffered any harm for any other reason in Malaysia and he said he had not. I asked if there was any other reason or basis he would be harmed on return and he said there was not. I noted that I may take the view that he could return and find work and live in his house. He said he would not return as he was afraid from her family and now it was like a phobia.
He said he feared threats from her family with regard to the community at large as the majority are Muslims and they do not approve of people living together without marriage. I pointed out that he had not claimed to have had any difficulties form the community at large and he then said that he merely feared the death threat from the brother, that is all.
He said he did not fear harm from his family. He said he feared his partner’s family would force him to marry someone else. I asked how his partner’s family could force him to marry someone else and he said that he did not know. He then clarified that her family wanted him and his partner to be married.
After the hearing, the applicant’s provided a police report dated [in] March 2016, in which he claimed that:
·[in] March 2016 he had been threatened by someone he knew as [Mr B] by SMS;
·that [Mr B] would kill him if he did not marry [Mr B’s] younger sister;
·that he had earlier received a threat from [Mr B’s] that he would beat him up if the applicant did not marry his younger sister;
·but that [Mr B’s] sister does not want to marry the applicant as she is [number of] years his senior;
·He claimed he is afraid for his safety.
Because of concerns I had with the police report provided post hearing, I sent the applicant a letter under s.424A. A letter in the same terms was also sent to [Ms A].
The letter explained that at [Ms A’s] hearing, she said that her partner, [the applicant], had lodged a police report shortly before travelling to Australia. When asked if she had that report she initially said they did not have a copy. She then said that [the applicant] had a copy but they had not brought it to Australia. It was noted that this appeared relevant evidence so it was not clear why she had not provided it already. It was noted to her that this might cause the Tribunal to doubt there was a report, or that there had been threats from her brother.
At the applicant’s hearing, he said that he had made a report to the police, but had lost the report. He said he was looking for it but had lost it before coming to Australia. It was noted to him that he had not said anything about a police report, or that he had received death threats from [Ms A’s] brother in his written statement to the Department. He said he had not written it down because the report was lost and he had lost his phone and he did not have the evidence. He said he would ask his family to look for it. The Tribunal explained to the applicant that it may come to the view that he had not received death threats from the applicant’s brother and did not make a police report given the lateness of this claim, that it was not included in his written statement.
The letter noted that after the hearing, on 30 October, the applicant provided a Malaysian police report dated [in] March 2016, in which he claimed he had received an SMS [in] March 2016 from the applicant’s brother, “[Mr B]’ in which [Mr B] said ‘I will kill you if you refuse to marry my younger sister’. And claimed that before this he had received a message from [Mr B] that [Mr B] would beat up the applicant if he refused to marry [Ms A]. The report explains that [Ms A] does not wish to marry him as she is older, and that the applicant is making the report as he is afraid he will be harmed.
The letter noted that the Tribunal has some significant doubts that the police report is genuine and that the incidents described have occurred. This is because neither the applicant nor [Ms A] stated in their written statements that [Ms A’s] brother had made death threats to the applicant or [Ms A], nor did they say in those statements that they had gone to the police and made a report. Further, the Tribunal has concerns that the police report was provided late in the process, after the Department refused their applications, after they applied to the Tribunal, and after the hearings.
The letter explained that the s.424A information was the provision after the hearing of what is claimed to be a Malaysian police report made by the applicant [in] March 2016, that contains claims that [Ms A’s] brother had threatened him with death and prior to that with being beaten. The information is relevant because it may appear different to what was claimed in their written statements as discussed above, and may also appear, from its late provision, to indicate that the police report is not genuine. If the Tribunal relies on the inconsistencies between the information, their written claims, and the concerns with the late provision of the police report, the Tribunal may find that the [Ms A’s] brother has not made threats against either of them, and that the police report is not genuine. This may further lead the Tribunal to find that they are not credible or witnesses of truth.
The applicant responded to the letter. Relevantly, he said:
[In] March 2016, I made a police report towards [Ms A’s] brother as I received a text on my mobile phone from him. In that text he made a threat to me stating that he is going to kill me if I would not want to marry his sister. Right after lodging the police report I told [Ms A] that I had made a police report on her brother and I kept the copy of the police report in my house. During that time unknowingly the report had gone missing and I made a decision to head over to Australia. In my protection visa application form, I did stated down regarding the police report and the death treat that I received from [Ms A’s] brother as I was unable to find the copy of the police report.
On the 27^th September 2017, I was call for my hearing at the Administrative Appeal Tribunal. During the hearing session I told the person that I had made a police report but the copy of the police report is nowhere to be found and because of that I could not present it in my protection visa application form. Right after the hearing I told [Ms A] the content of the police report.
[In] October 2017 the copy of the police report had been found by my family and I had send the copy of the report to the Administrative Appeal Tribunal together with an English translation.
I hope with this explanation, the Administrative Appeal Tribunal would have a consideration with what I have stated in this letter.
The applicant’s response is essentially in the same form as the explanations he gave at hearing. I have carefully considered the response, and what he said at hearing, but I find that it does not address the concerns I have with the claims of the applicant. I do not accept that he felt unable to put down details of the threats or the complaint to the police because he had lost his phone and copy of the police report. It does not follow that him not having evidence meant he could not have made a claim about this, and it did not constrain him from making the other claims in his written application without supporting evidence – I find this explanation implausible.
The applicant has not satisfactorily addressed why he was not able to provide the police report until after the hearing. He claimed it had been lost, and lost prior to his arrival in Australia in March 2016. Despite having lodged his application for protection, this having been refused, lodging his application for review and attending a hearing, he said he had not had any luck getting his family to find it until after the hearing. Again, I find this implausible given the points at which he had been made aware that his claims were disbelieved, I consider that he had ample opportunity to have his family find the document earlier in the process and I find that the provision of the police report so late in the process raises serious concerns in my mind about whether this is a genuine document.

This is particularly the case because I find the claims contained in the document to be implausible given he did not mention these claims in his written statement to the Department, and I have not accepted his explanation for why this was, above.
These concerns therefore lead me to the following conclusions. I find I can place no weight on the police report, given my concerns above. Further, given his unsatisfactory explanation of why these claims were not made in his written statement, I find that I do not accept that these events have occurred. Whilst I accept that the applicant and his partner lived together in Kuala Lumpur for three years without being married, and whilst I am prepared to accept that her family was unhappy about this, I do not accept anything else in his claims.
I do not accept that [Ms A’s] brother has threatened to kill or harm the applicant or her at any time – I find it highly significant that the applicant did not include any detail of this in his written claims, and I find he has not provided a satisfactory explanation for why this was. As above, I have placed no weight on the police report. Given my findings above, I do not accept that the applicant, or [Ms A], made a complaint to the police about the [Ms A’s] brother or anyone else. I do not accept that the applicant or his partner have been threatened by anyone else, in their families or more generally, for living together without being married. I do not accept that the applicant or his partner have been harmed or threatened by Malay society at large because the majority are Muslim – the applicant was not able to provide any instances of such harm nor did he indicate that he considered he would be harmed by Malay society or anyone else on return other than his partner’s brother and family. I do not accept that the applicant has been harmed in any way by his family, who from his evidence have been assisting him in making his claim.
I find that the applicant has not suffered any harm in the past for reasons of living with his partner in a de facto unmarried relationship in Malaysia. I find that the applicant has not been harmed or threatened by [Ms A’s] brother or anyone else for this reason or any other.
Forced marriage
At hearing the applicant did not press this aspect of his claims. He claimed that [Ms A’s] family would force him to be married to someone else and then clarified that they would force him to marry [Ms A]. I do not accept this claim – as I explained to him, her family had had three years in which they had not done anything to the applicant or [Ms A] (and I have rejected the threats the applicant claims his brother made to him). His evidence on this was undetailed and implausible and I do not accept that there has been any harm against the applicant or his partner to pressure them to get married. Given my concerns with the applicant’s evidence I do not accept any claim he made or impliedly made that [Ms A’s] family would force her to be married to someone else – again, as I discussed with the applicant, he had lived together with [Ms A] for three years with her family not having taken any action. I do not accept that his family or her family are staunch Muslims, there is no basis to support this claim.
I do not accept that the applicant has suffered harm of any kind for reasons of his family or his partner’s family forcing or attempting to force them to be married to each other, nor forcing him or his partner to be married to anyone else.
Economic situation
The applicant claimed in his written statement that he did not move to another part of the country as his financial status was not stable as he did not have a permanent job. He did not make any claims at the hearing about his economic situation. I note that the applicant was employed in Malaysia and has been employed in Australia and would have reasonable prospects of gaining employment on return to Malaysia.
Does the applicant have a well-founded fear of persecution if he returns to Malaysia?
The applicant said in his written claims that if he returned to Malaysia he feared he would be forced to marry someone of his family’s choosing, and that he could not relocate because his financial situation was precarious. At hearing his claims had a different focus, claiming that [Ms A’s] brother had threatened him because her brother wanted them to be married.
As above, I have rejected the claims that her brother has threatened the applicant or [Ms A]. I have also not accepted that her family have forced or tried to force them to marry. Nor, given my concerns and findings above, do I accept that [Ms A’s] family would force her to marry someone else. The applicant did not claim and I do not accept that his family have tried to force him to marry someone of their choosing. I accept that her family may be unhappy with the couple’s decision to live together without being married, but I do not accept that the applicant has suffered any form of serious or significant harm for any reason connected with this. Considering the situation in the future, if the applicant were to return to Malaysia, I do not accept, given my findings above, that there is more than a far-fetched or remote chance that her family or anyone else will harm him for not marrying [Ms A]/living with her without being married. I find that the applicant could return to Malaysia and resume living with his partner without any chance of being harmed by her family or anyone else for reasons of them being unmarried, or because she will not marry a person of her family’s choosing or because he will not marry a person of his family’s choosing. On the basis of the above findings I find that there is no real chance that the applicant will be harmed by [Ms A’s] brother, family or anyone else for any reason connected to his living with [Ms A] in an unmarried relationship, his or her refusal to be married to someone of their family’s choosing or for any other related reason on return to Malaysia now or in the reasonably foreseeable future.
I have carefully considered whether there is any other basis for a claim in his evidence and I find there is not.
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).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to Malaysia?
In MIAC v SQRB[1] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[1] MIAC v SZQRB [2013] FCAFC 33 (Landeer, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
As detailed above, I have not accepted his claims about his feared harm from [Ms A’s] brother or family for reasons of him living with [Ms A] in an unmarried relationship or his or her not marrying someone of their family’s choosing. I have accepted that [Ms A’s] family may be unhappy with them living in an unmarried relationship, but that is all, and I do not accept that this amounts to significant harm.
The applicant did not claim to fear harm on return to Malaysia for any reason other than those above. It follows that I do not accept that there is a real risk the applicant will suffer significant harm from any person or for any of the reasons set out above or for any other reason evident on the claims or material as a necessary and foreseeable consequence of her being removed from Australia to Malaysia.
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.
Sean Baker
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.
…

[2018] AATA 1693

18 May 2018

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Immigration

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