1619538 (Refugee)

[2017] AATA 1822

1619538 (Refugee) [2017] AATA 1822 (12 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619538

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Peter Vlahos

DATE:12 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 October 2017 at 10:09am

CATCHWORDS
Refugee – Protection visa – Malaysia – Misappropriation of funds from employer – No police charges – Repaying money from wages

LEGISLATION
Migration Act 1958 – ss. 5H5J5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Malaysia, applied for the visas [in] May 2016 and the delegate refused to grant the visas [in] November 2016.

3. [In] November 2016 the applicants lodged an application for review with the Tribunal requesting a review of the Department’s decision to refuse the applicant’s Protection visa.

4. The applicants appeared before the Tribunal on 4 September 2017 to give evidence make submissions and present arguments.

5. In this decision, the first-named [applicant], is referred to as the ‘first applicant’ or the ‘applicant’; the second named applicant is [name].

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English Languages. The applicant was not represented by a legal representative or registered migration agent. 

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.  

5. 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

1. 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

1. The issue in this case is whether Australia has protection obligations in respect to the applicants.

2. The applicant was provided with further period of time to provide the Tribunal with any further and relevant information regarding her claims by no later than close of business on 6 September 2017. The applicant having provided no further submissions for the Tribunal to consider. The Tribunal proceeded to make its decision.

3. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of Nationality and Identity

4. Based on a copy of the primary applicant’s passport which was provided to the Department of Immigration and Border Protection (the Department), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has assessed her claims against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Migration Act (as amended) (the Act).

5. The second named [applicant], was born in Australia and does not have a passport. A certified copy of applicant’s child’s birth certificate was provided of his identity. In the absence of information to the contrary, the Tribunal accepts applicant two’s identity as claimed. The Tribunal also accepts that the birth certificate serves as evidence of the familial relationship between the applicant, and the Tribunal accepts that the child is a member of the same family unit as the primary agent.

6. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has regard to material referred to in the delegate’s decision.[1]

   [1] AAT File no. 1619538 Folios 3 to 10

   The applicant’s’ visa background

7. The applicants arrived in Australia from Malaysia as a holder of a [temporary] visa [in] November 2015 and [in] May 2016 the applicant applied for Protection (Class XA) visa and associated bridging visa.

   The applicant’s claims for protection

8. At the hearing the primary applicant (hereinafter referred to as the ‘applicant’) abandoned her original claims as submitted to the Department as part of her application for Protection visa[2] as not correct and substituted them for the following new claims which form the basis of the review by the Tribunal. The Tribunal asked the applicant to specify her new claims she wished the Tribunal to consider and explore with her. In response, the applicant told the Tribunal that her problems in Malaysia were as follows:

   §  The applicant was an employee of a [company]. Her description of this company was that it was [a certain company] and as an employee she committed a breach of trust.

   §  The applicant admitted that what she did was wrong but justified her actions by stating that ‘her life was hard.’

   §  The applicant admitted that she wilfully and without her employer’s permission used the company’s funds for her own purposes.

   §  The applicant admitted that the amount she misappropriated from her employers was [amount]. 

   §  The applicant also admitted that her employer made a police report concerning the misappropriation of moneys and as a result the applicant fears to return to Malaysia because she could be imprisoned for her actions.

   Evidence at the Hearing

   [2] AAT File no. 1619538 Folio no.6

   Documentary evidence provided to the Tribunal

9. The applicant provided the following document to the Tribunal in support of her application for review:

   §  POLIS DIRAJA MALAYSIS report polis (police report) dated [in] October 2015 in the Malay language no translation was provided to the Tribunal.[3]

   [3] The Tribunal provided the police report to (AAT File no.1619538 Folio no. 27) the Interpreter who interpreted its contents. According to the interpreter, the report reports an incident that occurred [in] October 2015 involving applicant but no sum of money is identified or further prosecution is recommended against the applicant. The police report was (according to the interpreter) filed by the applicant’s employer. This fact was also recognised by the applicant.

   Background of the applicant

10. During the hearing the applicant elaborated on her personal circumstance. The applicant is a [age] female from Kota Kinabalu, Sabah, Malaysia. She has a young family but is not married. She is a Sunni Muslim by faith. She has family in Malaysia which consists of her parents, [and siblings]. The applicant has completed her schooling up and including year [number] at secondary school level and prior to leaving Malaysia, she was working at [a company]. She also had worked on a part-time basis at a local [workplace].

    The issue which caused the applicant to leave Malaysia for Australia

11. According to the applicant her problems began in 2015, when she was in charge of ‘[a department]’ at the [company]. The applicant told the Tribunal that she used a ‘friend’s account’ with the company (who had already settled his/her debt) to take ‘money’ in that friend’s name for the applicant’s own use. Over a period of time, the applicant was unable to repay the money she had misappropriated. The applicant also admitted to the Tribunal that she also took moneys from the company’s ‘petty cash’ account but did not provide an actual figure.

12. The Tribunal asked the applicant – how much money did she misappropriate from her employer. The applicant told the Tribunal that ‘she could not remember exactly’ but it was an amount of money she could not repay immediately. The applicant’s response was to tell the Tribunal that the amount she misappropriated from her employer’s company was approximately [amount].

13. The Tribunal asked the applicant – what happened when her employer found out about the misappropriated funds. The applicant told the Tribunal that her employer was angry with her actions – after all, her employer had ‘full confidence in her’ and she had betrayed that confidence. The employer also threatened to tell the applicant’s parents and in particular, her sick father (who suffers from [a medical condition]) if the applicant did not attempt to make restitution. Regardless of her employer’s regrets at her actions, the applicant maintained her position within the company and continued her with her work.

14. The Tribunal was told, that even though the applicant ‘s employer had filed a police report with the local police concerning the actions of the applicant in misappropriating money , the employer had agreed to not seek the police’s intervention against the applicant allowing her to instead work to repay the amount she had willingly misappropriated.

15. The consequences of the employer’s willingness to forego the prosecution of the applicant for theft instead allowing her via her employment to work in order to make restitution caused the applicant not to be able to have sufficient money to provide for her [number] young children.

16. Her ‘hardship’ and difficulties made her consider her options and her only alternative was to come to Australia, the applicant told the Tribunal. The applicant was asked by the Tribunal – could her family have assisted her in any way? The applicant’s response was to tell the Tribunal that her family was also not doing well financially, and that she did not want to be a burden to them with her financial problems.

17. The applicant told the Tribunal that the employer filed the police report [in] October 2015 but did not want to take court action against her. The applicant left Malaysia in November 2015. The Tribunal asked the applicant – how was it possible for her to leave Malaysia without arousing the suspicions of her employer. According to the applicant, she attended her work as usual without any interruption and when she had decided to leave, the applicant left for Australia.

    What is the applicant doing here, in Australia since 2015?

18. While in Australia, the applicant has been working on a part-time basis as a [occupation]. She works [number] days a week and earns approximately AUD[amount] per week but this depends on the type of [work] and the availability of work. Her de facto partner works in a factory. The applicant is also in receipt of certain payments from Centrelink which assist her with living costs.

    Why is the applicant afraid of returning to Malaysia in the reasonably foreseeable future?

19. The applicant fears to return to Malaysia under any circumstances. Her fears centre  around the issue of her wrongful actions (which she admits) done against her employer and the fact that though her employer had allowed her to make restitution of the funds she had misappropriated by working for him without receiving a wage, there was still, the police report and the fact that she left for Australia to avoid her responsibilities.  All these factors would cause her employer to take action against the applicant in the courts and he would also seek to have her placed in jail. As a result of these uncertainties, the applicant feared for her child’s future. The applicant told the Tribunal that if she had to go to jail for crimes - who would care for the child..

    Has the applicant made any efforts while in Australia to repay the amount she stole?

20. The applicant has made no effort to make any repayment to her employer while here in Australia. She told the Tribunal that she came from a very poor family with no substantial incomes and while in Australia, what she earned was only enough to allow her to survive here and if it was not for the Centrelink funds she was receiving she would find it very hard.

21. The applicant was asked if her partner’s family could assist her. The applicant did not think so, because like her family, they too, were poor and had very little money to spare.

    Concluding Remarks by the Applicant

22. The applicant pleaded that the Australia allows her to remain here. Australia, according to the applicant was a country she very much liked. The applicant went on to tell the Tribunal that she accepted that her actions in Malaysia were wrong and against the law but she promised that if she was allowed to stay here, she would not commit any crimes. The applicant has always desired a better place for her child to live and Australia is the country which could provide this. The applicant expressed being ‘afraid’ that the Australian authorities would send her back to Malaysia if they knew from the beginning (when she came arrived here) that she had come to Australia because she committed a crime in Malaysia and was escaping the consequences of her wrongful actions.

    Country Information – Malaysia – rule of law- legal and judicial system

    Legal processes

    State protection and rule of law

23. In its Country Reports on Human Rights Practices – 2015, US Department of State (USDOS) provided the following summary of Malaysia’s system of governance:

    Malaysia is a federal constitutional monarchy. It has a parliamentary system of government selected through periodic, multiparty elections and is headed by a prime minister. The king is the head of state and serves a largely ceremonial role; the king serves a five-year term, and the kingship rotates among the nine sultans. The United Malays National Organization (UMNO), together with a coalition of political parties known as the National Front (BN), has held power since independence in 1957. In the May 2013 general elections, the BN lost the popular vote to the opposition coalition but was re-elected in the country’s first-past-the-post system. The opposition and civil society organizations alleged electoral irregularities and systemic disadvantages for opposition groups due to lack of media access and gerrymandered districts favoring the ruling coalition. Civilian authorities at times did not maintain effective control over security forces.[4]

    [4] US Department of State 2016, Country Reports on Human Rights Practices for 2015 - Malaysia, 13 April, p.1 < Accessed 2 August 2016 <OGD95BE926273> 

24. In its 2016 Country Information Report – Malaysia the Australian Department of Foreign Affairs and Trade (DFAT) noted that a two-track legal system of civil law and sharia-based law coexists in Malaysia:

    2.18 Each state has a Chief Minister. The three federal territories (Kuala Lumpur, Putrajaya and Labuan) are governed at the federal level. Nine of the 13 states have hereditary rulers (eight Sultans and one Rajah) who share the position of King on a five-year rotating basis. In Malaysia, matters pertaining to Islam, including codification of sharia-based laws and procedures and their administration, fall under state jurisdiction.[5]

    [5] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July, section 2.8, p.7 <CIS38A80121311>

25. In its Country Information Report – Malaysia, DFAT provides the following summary regarding Malaysia’s judicial system:

5.11 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at state level with jurisdiction over Muslims. The majority of Malaysia’s criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims. Malaysia’s highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see ‘Political Opposition Members’, above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.

5.12 Credible sources advised that defendants generally had adequate time to prepare a defence, particularly where they had financial means to engage private counsel. Government legal aid resources were limited and generally of poor quality. Strict rules of evidence apply in court. However, state-held evidence was not consistently made available to the defence. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods; the International Center for Prison Studies reported that in mid-2014 24.8 per cent of the total prison population were pre-trial detainees.

5.13 The ability for individuals to seek legal redress through Malaysian courts is mixed. Judges receive relatively low salaries, limited training, and appointments were often made directly from university. Selective prosecution and arbitrary verdicts occurred, particularly in instances involving high-profile opposition politicians and human rights defenders. However, the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.[6]

[6] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July, section 5.11, p.26 <CIS38A80121311> 

1. In its Country Reports on Human Rights Practices for 2015 – Malaysia USDOS provides an overview of the judiciary in Malaysia:

   English common law is the basis for the civil legal system. The constitution states all persons are equal before the law and entitled to equal protection of the law. The law allows defendants a presumption of innocence until proven guilty. Trials are public, although judges may order restrictions on press coverage. Juries are not used. Defendants have the right to counsel at public expense if facing charges that carry the death penalty and may apply for a public defender in certain other cases.

   According to the Malaysian Bar Council, defendants generally have adequate time and facilities to prepare a defence if they have the means to engage private counsel. Otherwise, defendants must rely on legal aid and the amount of time to prepare for trial is at the discretion of the judge. Strict rules of evidence apply in court; the government, however, did not consistently make evidence available to defence counsel.

   Defendants confronted witnesses against them and presented witnesses and evidence on their behalf, although judges sometimes disallowed witness testimony. Defendants may make statements for the record to an investigative agency prior to trial. Limited pre-trial discovery in criminal cases impeded defendants’ ability to defend themselves. Attorneys must apply for a court order to obtain documents covered under the official secrecy laws.

   Defendants may appeal court decisions to higher courts, but only if the appeal raises a question of law or if material circumstances raise a reasonable doubt regarding conviction or sentencing. The bar council claimed these restrictions were excessive.[7]

   [7] US Department of State 2016, Country Reports on Human Rights Practices for 2015 - Malaysia, 13 April, section 1.e, pp.7-8 < Accessed 2 August 2016 <OGD95BE926273> 

2. In its Country Information Report – Malaysia, DFAT provides the following information about sharia courts in Malaysia:

   5.14State-level sharia courts generally apply sharia law in accordance with their rules of procedure but also have low capacity. Due to the nature and focus of sharia-based law, sharia courts had a disproportionately negative impact on transgender individuals, domestic violence victims and women in child custody cases.[8].

   [8] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July, section 5.14, p.26 <CIS38A80121311> 

41.   In 2016 Freedom House commented on rule of law in Malaysia:

Judicial independence is compromised by extensive executive influence. Arbitrary or politically motivated verdicts are common, as seen in the convictions of Anwar Ibrahim in 1999, 2000, and 2014 on charges of corruption and sodomy. Malaysia's secular legal system is based on English common law. However, Muslims are subject to Sharia (Islamic law), the interpretation of which varies regionally, and the constitution's Article 121 stipulates that all matters related to Islam should be heard in Sharia courts. This results in vastly different treatment of Muslims and non-Muslims regarding "moral" and family law issues.

Tribunal’s conclusions about the applicant’s claims

FINDINGS AND REASONS

1. The mere fact that a person claims fear of persecution for a particular reasons or reasons does not establish either their genuineness of the asserted fear or that it is “well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish in specifying any particulars of the claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant (see, MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

2. The Tribunal accepts the applicant’s admission[9] while working as an employee for a [company] in Malaysia wilfully misappropriated over a period of time an amount of money (RM[amount]) from her employer for her own personal needs. The Tribunal also accepts as claimed that the applicant’s criminal actions were reported by her employer to the local police and noted in a police report dated [in] October 2015 submitted by the applicant (in an untranslated form to the Tribunal). The Tribunal also accepts that the applicant was prior to her leaving for Australia, continuing to work for her employer and her wages had been withheld by her employer towards restitution of the moneys she had wilfully misappropriated. Furthermore, the Tribunal accepts that that the applicant faced with personal and family pressures chose to leave for Australia than to continue working for her employer subject to her wages being withheld by her employer and directed towards the repayment of the money she had misappropriated. The Tribunal noted that the applicant in her evidence identified as a well-founded fear of persecution criminal proceedings being instituted against her for theft by her employer if she was to return to Malaysia and her possible imprisonment. The Tribunal does not accept that if the applicant returns to Malaysia she would face criminal proceedings which could result in her imprisonment as amounting to a well-founded fear of persecution. Indeed, the applicant may upon return face criminal charges for ‘theft’ as defined and prosecuted in accordance with a law that applies to all Malaysian citizens regardless of their race, religion, politics or social status. The Tribunal in considering the applicant’s claims referred to the Malaysian Penal Code, section 379 which provides as follows:

   “Whoever commits theft shall be punished with imprisonment for a term which may extend to seven years or with a fine or both, and for a second offence shall be punished with imprisonment and shall also be liable to a fine or wiping.”[10]

   [9] see Paragraphs [23] and [24] herein

   [10] MALASIAN PENAL CODE, (Act 574), as at 01 January 2015 at p. 205

3. Moreover, country information provided by DFAT accessed and referenced by the Tribunal (herein, see paragraph [38]) describe Malaysia’s legal and judicial systems as adequate and despite certain shortcomings (certain inadequacies in legal aid) is able to provide the persons in the applicant’s circumstances with “adequate time to prepare a defence” and “strict rules of evidence apply in court” which would ensure for the applicant a fair trial. Therefore, the Tribunal finds that based on the applicant’s own admission as having left Malaysia in order to escape her possible prosecution for theft which is a crime punished by a law of general application there is no real chance of her being threatened or otherwise persecuted for any reasons as defined by the Act pursuant to s.5J(1)(a)(b) and (c).

   
   
   

4. For the reasons given in paragraph [43] above, the Tribunal does not accept that the applicant was forced to flee Malaysia because she feared harm for any reason, or that there is a real chance that she will face persecution involving serious harm for any reason if she returns to Malaysia. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act.

Second-named Applicant  

1. However the Tribunal accepts that the second-named applicant is a member of the same family unit. The first applicant is not owed any protection obligation by Australia and makes no claims for protection for her child The Tribunal is not satisfied that the second applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or 26(2)(aa). Further the Tribunal is satisfied that the second applicant for the purposes of s.36(2)(b)(i) and s.36(2)(c)(i) is not owed protection.

Conclusion

1. 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).

2. The Tribunal having concluded that the applicant does not meet the refugee criterion in 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the reasons given in paragraph [43] above, the Tribunal does not accept that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm because of her facing proceedings initiated by her employer in a court of law for charges of theft, a law generally applied to all Malaysian citizens. While the Tribunal accepts that the applicant upon returning to Malaysia faces a real chance of being charged and prosecuted for misappropriating her employer’s money towards her personal use (theft) under the Malaysian Penal Code and that she could be punished, that punishment does not amount to significant harm because the applicant faces punishment if convicted by a law of general application which applies to all Malaysian citizens without any exception.

3. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

DECISION

1. The Tribunal affirms the decision not to grant the applicants protection visas.

Peter Vlahos
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

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.

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36Protection visas – criteria provided for by this Act

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(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.

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