1619918 (Refugee)

1619918 (Refugee) [2018] AATA 4940 (13 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619918
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Anne Grant
DATE:13 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 13 September 2018 at 1:42pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – Dusun – Bajah – particular social group – mixed tribal marriage – married couple in a relationship opposed by their family – fear of killing – threats of physical violence – family disputes – prospects of reconciliation – effective protection – internal relocation – Royal Malaysia Police – decision under review affirmed

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

CASES
MIAC v SZQRB [2013] FCAFC 33
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 18 November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, citizens of Malaysia, applied for the visas on 20 May 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicants are refugees and if not, whether there are substantial grounds for believing that the applicants will suffer significant harm if they are returned to Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants arrived in Australia on 18 March 2016. They lodged an application for protection on 30 May 2016. The applicants attended a hearing on 14 August 2018, and each gave sworn evidence.
The applicant’s claims are that:
·They met in 2013 and decided to marry in 2015. They were both working as [volunteers] when they met – the first applicant was also working as [an Occupation 1] and the second as the proprietor of a small [business]. They did not tell their families about their relationship, because they come from different ethnic groups and anticipated some resistance. The first applicant is from the Dusun tribe and the second from the Bajah tribe. Both tribes are from the region where they lived and generally prefer that marriages are arranged within and not between other tribal groups. However, the applicants were not particularly concerned about such things and didn’t expect strong resistance when they decided to marry, once their parents got used to the idea. Once they made arrangements for the wedding, the first applicant approached his future father in law and informed him that they were to be married [in] December 2015 and that there would be a celebration a few days after the service. Neither applicant’s families were invited to or came to the wedding service. However when the first applicant told them of the impending marriage, he was told that they would not allow it, that they would regret it, and that the second applicant’s father would ‘take his daughter back’.
·The applicants married in a small service [in] December 2015. On the evening of the party a few days later, a group of the second applicant’s family came to the wedding party armed with [weapons]. The first applicant’s family tried to calm things down and the applicants took the opportunity and fled. They had rented a house outside Kota Kinabalu to start their married life and they went there. After about a week, the first applicant called his family, and they told him that after they left the reception, there had been a verbal fight at the wedding party, but it had not escalated beyond that.
·From the moment the first applicant told the second applicant’s family about the wedding, the first applicant received multiple phone calls and texts from the second applicant’s family, threatening him. These continued after they married. They stayed in their new home for only about one week before they decided to move to Kuala Lumpur and stay with the first applicant’s [Relative A].
·Whilst living in Kuala Lumpur, the first applicant continued to receive threatening calls and abuse by telephone. They told him: ‘We have people everywhere’. One of the threats was that he would be killed.
·They did some research about prospects for relocating. They considered [three other countries]. However they read of some civil unrest in [two of those countries] including kidnappings, and decided that Australia was a safer option. The applicants gave evidence that they also considered Pulau Pinang, but ruled out staying in the country. The first applicant had noticed some strangers ‘hanging around’ near his [Relative A’s] house and was concerned that they were looking for him – and that he and his wife would be found, if they chose to stay and live anywhere in Malaysia.
·The applicants did not report the threats of violence or that the second applicant’s family had actively tried to prevent her marrying or staying in the marriage to police because the second applicant did not wish to, believing that her family being charged with offences would inflame the situation and damage any capacity to reconcile. The second applicant has not seen her mother since she was a child and has been raised by her father. She did not want to see her father get in trouble with the police. The applicants conceded that they, [due to personal experience], knew that offences had been committed, and had contacts within the Royal Malaysian Police and that, if they had reported what had happened and was happening, they could have expected that action would be taken on these very serious threats to kill, and also on the intention of her family to restrict the second applicant’s right to marry how she chose.   They chose not to make a report, or to seek protection from the police, due to the second applicant’s desire to avoid trouble for her family.
·In their applications, the applicants had stated that the reason why they had not reported the threats to the police was because the authorities are unable to provide them with 24 hour protection and because it is a family problem, the police do not regard it as a major problem.   During the hearing, I noted that this could be considered to be inconsistent with their evidence that they didn’t report it because they thought action would be taken, thus alienating her family further.   The applicants were unable to explain this inconsistency but restated that they did not report the threats and harassment because they didn’t want to make matters worse with the second applicant’s family.
·Since they left Malaysia, the applicants have had no contact whatsoever with the second applicant’s family. The first applicant has only spoken to his own family a couple of times. He called them about a year after they left to let them know they were safe. His parents said that the second applicant’s family had contacted them to try and find out where they were. He called his [Relative A] [on a specific occasion], and told her about [their child’s] birth.   At that time, she told him it was not the right time to return because the second applicant’s family were still causing problems for his parents. They never physically assaulted them, just regularly called asking when they would get their daughter back and where the first applicant was. The second applicant’s family has suggested they wait until the child was old enough to talk to [their] grand-father before returning and perhaps that might be a way to mend the relationship.
·At hearing the applicants provided various documents, namely their [drivers licenses], a national police certificate, an English course test information form, a rental receipt, their [child’s] birth certificate, showing [the birth was] on [date], and volunteer information for the [named agency] for the second applicant. I have considered these documents but do not consider them to be of assistance in assessing their protection claims.   They also provided a newspaper report from the New Delhi Daily Mail about abuse of two young people attacked by their families after marrying without a family blessing. The second applicant said this was provided as an example of the kind of things that people from her ethnic group might do, although the article does not relate to any person with ethnic links to theirs. I find that article is of no direct relevance to this review or to the applicants’ circumstances, and is of no evidentiary value, given that it relates to unrelated people and to a family in New Delhi, India.
I accept that the second applicant’s family was vehemently opposed to her marriage to the first applicant because they are from different ethnic groups and that her family have repeatedly threatened to forcibly ‘recover’ her and to inflict harm (including death) to both of them. I accept that the second applicant’s family attended their marriage celebration, intent on disrupting it and forcibly bringing the marriage to an end, using weapons. I also accept that the applicants have not spoken to her family since they disrupted their marriage party, except in threatening phone calls to the first applicant.
The applicants fear being physically assaulted and being repeatedly harassed, assaulted and possibly murdered by the second applicant’s family. Such harm is serious harm within the meaning of s.5J(5). The applicants have been repeatedly targeted, with a co-ordinated attack at their wedding celebration and constant telephone abuse via text and phone call. Further, their whereabouts have been sought since they left the area. I am satisfied that the persecution involves serious harm and systematic and discriminatory conduct as per s.5J(4)(b) and (c).
The applicants fear harm because they are in a married relationship which their persecutors (the second applicant’s family) oppose. Principally, the relationship is opposed and the applicants are being attacked because the first applicant is of Dusun tribal ethnicity or race and the attackers are of Bajah tribal ethnicity or race. The only other reason for the attacks on them is due to them being members of the particular social group as a married couple in a relationship opposed by their family. These two reasons, (race and membership of a particular social group) are described in s.5J(a) and I am satisfied that those reasons are the essential and significant reasons for the persecution feared by the applicants as per s.5J(4)(a).
Is there a real chance that they will be persecuted now or in the reasonably foreseeable future if they return to Malaysia?
I accept that there is a real chance (in that it is higher than a remote chance) that the second applicant’s family will resume their harassment and potential attacks on the applicants if they return to Kota Kinabalu or indeed, anywhere in the State of Sabah, because, based on the most recent information they have of continuing enquiries about their whereabouts, there is a persisting desire by the second applicant’s family to destroy their marriage and harm them, including possibly killing the first applicant. Their motivation remains that they are opposed to the marriage of the applicants as it was carried out without their consent and for tribal reasons.
However, according to s.5J(2) of the Act, a person does not have a well-founded fear of persecution if effective protection measures are available to the person in their receiving country.
In its 19 April 2018 report on Malaysia, which was discussed with the applicants at hearing, DFAT includes the following information on the Royal Malaysia Police (RMP):
5.5 The RMP employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs.
Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Police Integrity and Accountability). The RMP is 80 – 85 per cent Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
I consider that the threats to kill the first applicant and in particular the menacing of the applicants in front of guests (witnesses) at their wedding party are serious threats and would be taken seriously by the police, if reported. According to section 37 of the Malaysian Law Reform (Marriage and Divorce) Act 1976, it is illegal to force someone to marry against their wishes or to prevent a person from marrying in accordance with their wishes. At hearing, the applicants agreed that they were aware that the second applicant’s family had committed serious offences. The applicants [had relevant personal experience] and their evidence disclosed that they believed that the threats to the first applicant would be taken seriously by police (investigated and prosecuted) if reported, particularly given there were death threats and multiple witnesses to the wedding party incident.
I am satisfied, from the applicant’s evidence, that their reason for not lodging a police report was the desire on the part of the second applicant not to get her family members, (principally her father) in trouble or sent to jail. I find that is the primary reason they failed to seek protection from the Royal Malaysian Police. This strongly implies that they believed that, if they reported the crimes they had experienced, the offenders would be arrested and prosecuted.
In their applications, the applicants said that they “tried to make a report but the authorities are unable to provide protection for 24 hours because we are just ordinary people and families involved in this case and that they do not regard this as a major problem”. Taking into account their oral evidence, I do not accept that they tried to make a report or that the Royal Malaysian Police would have been or would be unable or unwilling to take action on their complaints. I am satisfied that the applicants formed a view that, if protection had been sought, it would have been provided in the form of arresting and prosecuting the perpetrators – but they wanted to avoid those outcomes as it would affect any reconciliation with the family.
As acknowledged by the applicants, serious offences have been committed, including threats to kill the second applicant and weapons related threats at a social event. The applicants have contacts in the police and familiarity with the processes of the Royal Malaysian Police. They could ensure that any complaint made is followed up. Having considered the applicants’ own evidence, I find that, even taking into account the issues of poor resourcing and corruption referred to in the DFAT advice, the Malaysian authorities (the Royal Malaysian Police) were and are able and willing to offer protection to the applicants. I consider that effective protection was (and is) available to them in the form of reporting the offences, and seeking prosecution of the second applicant’s family members.
I have considered s.5LA(2) and am satisfied that the applicants can access the protection and it is durable. The protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. If they were to return to Malaysia, I find that effective protection measures would be available to the applicants in Sabah and in fact, throughout Malaysia. Applying s.5J(2), I find that they do not have a well-founded fear of persecution due to the availability of those effective protection measures.
I also consider that the real chance of persecution in this case does not relate to all areas of Malaysia. I find that there is no risk, for example, that they will be found and harmed by their familial persecutors in places such as Pulau Penang or Johor Bahru. I have taken into account that the applicants state that they fear that they can be found throughout the country by the second applicant’s family by relatives, though they could not say how that would or could occur. Based on their limited evidence I do not accept this to be the case.

I have considered but do not accept that the fact that the second applicant may have family in many areas throughout the country is sufficient to elevate the chance of harm in this case to anything greater than remote outside of Sabah, particularly since the evidence is that the second applicant has never even met most of the ‘family’ she has outside her home area.
According to s.5J(1)(c), the applicants do not have a well-founded fear of persecution unless ‘the real chance of persecution relates to all areas of a receiving country’. I find that the real chance of harm in this case does not relate to all areas of Malaysia.
I have considered the applicants’ cases together, because they specifically advised that their claims were identical and based on the same facts. However, I have also considered whether, individually, there is any fact or circumstance which would mean that either of them would be unable to obtain effective protection measures from the Royal Malaysian Police force or would face a real chance of harm throughout the country. I find that the same conclusions apply in both cases, even when considered individually. I find for the above reasons that effective protection measures are available to both applicants and that the real chance of harm does not relate to all areas of Malaysia for either applicant.
The applicants do not have a well-founded fear of persecution if they were to return to Malaysia now or in the foreseeable future. They do not satisfy the criteria in s.36(2)(a) of the Act.
I have also considered whether the provisions of s.36(2)(aa) apply in this case. For that provision to apply, I must be satisfied that there are 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 the applicants will suffer significant harm.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’: MIAC v SZQRB [2013] FCAFC 33. Based on the above findings and reasons, I find that their persecutors continue to be motivated to locate and harm the applicants. If they return to Sabah, I am satisfied that there is a real risk that they will face ongoing and constant harassment, assault and (in the case of the first applicant) potential murder. I find that the harm constitutes significant harm as defined in s.36(2A).
However under S.36(2B), there is taken not to be a real risk that they will suffer significant harm in Malaysia if I am satisfied that:
(a)It would be reasonable for the applicants to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or
(b)They could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm or
(c)The real risk is one faced by the population of the country generally and not the applicants personally.
I am satisfied that the applicants could obtain, from the Royal Malaysian Police throughout Malaysia, protection in the form of arrest and prosecution of the second applicant’s offending family members for threats to kill and breach of various other laws of Malaysia. In the applicants’ own words, they decided not to report the crimes and threats because they wanted to avoid members of family being prosecuted and jailed. They wanted to preserve what was left of the relationship because of the potential in future for some form of reconciliation. I am satisfied that the applicants could obtain protection from authorities (the Royal Malaysian Police) in Malaysia in the form of seeking the arrest and prosecution of their persecutors and that it would be of a nature that it would reduce the risk of harm to below a real risk of harm.
The first applicant is a trained [Occupation 1] and has experience in [a voluntary service]. The second applicant has experience running her own small business and also experience in the [same voluntary service]. The evidence is that they are both young professional people with work skills, education and experience. The applicants did not raise any obstacles to relocation apart from their stated fear of being located by their persecutors. I am satisfied that there are no impediments to the applicants finding employment in Peninsular Malaysia (for example in Johor or Palau Penang) if they were to return. The evidence is that they prefer the social stability and better economic prospects in Australia to relocating within Malaysia.
According to its’ most recent report as discussed with the applicants, DFAT includes the following information about relocation in Malaysia:
5.18 Malaysia’s Constitution provides for freedom of internal movement, but the eastern states of Sabah and Sarawak have autonomy over their own immigration. Non-Sabah or Sarawak residents, whether Malaysian citizens or foreigners, must present national identity cards (or passports for foreigners) to gain entry and can visit for a maximum period of three months. The federal government can overrule immigration decisions made by Sabah or Sarawak in limited circumstances, including for national security reasons.
5.19 Sabah and Sarawak both issue working visas to non-residents (including other Malaysians), but these can be difficult to obtain. Both states limit purchase of land by non-residents. Far more people migrate from Sarawak and Sabah to peninsula Malaysia than in the other direction, due to better work opportunities and higher salaries.
5.20 In recent years, Sabah and Sarawak have denied entry to a small number of individuals. The Official Secrets Act contains the list of individuals banned from entering, and is not available to the public. During the Sarawak state election in May 2016, opposition leaders including PKR's Vice President Nurul Izzah Anwar, Selangor Chief Minister Azmin Ali, and DAP's Liew Chin Tong were denied entry on arrival in Sarawak. In March 2016, Tony Pua, Selangor state DAP Chief was refused entry into Sarawak. In 2015, Teresa Kok, a Chinese Malaysian and vice-Chairman of the DAP, was prevented from entering Sabah and the Hindu Rights Action Force chairman P Waythamoorthy was denied entry into Sarawak. DFAT is not aware of any instances of authorities denying an individual’s exit from Sabah or Sarawak.
5.21 DFAT assesses that, subject to the restrictions outlined above in relation to Sabah and Sarawak, Malaysians can and do freely relocate internally. Individuals likely to attract official attention under state sharia-based law, including transgender individuals, women escaping domestic violence or Muslims wishing to marry a non-Muslim, often move to large urban centres to avoid attention. People also move to different parts of Malaysia, generally larger urban areas in peninsula Malaysia, for economic reasons.
Taking into account the country information noted above and as acknowledged by the applicants at hearing, I am satisfied that the applicants could freely move and establish themselves throughout Peninsular Malaysia without official impediment. I have considered their personal circumstances and I am satisfied in this case that the applicants could reasonably relocate to a large city on Peninsular Malaysia, such as Johor Bahru, Klang or Pulau Penang, where there would not be a real risk of suffering significant harm.
In considering s.36(2)(aa), I have considered the applicant’s cases together because they specifically confirmed that their claims were identical and based on the same facts. However, I have also considered whether, individually, there is any reason which would mean that either of them could not access protection from the Royal Malaysian Police force or reasonably relocate. I find that the same conclusions apply in both cases. For the reasons given above, protection is available to the applicants such that there would not be a real risk of significant harm, and the applicants could reasonably relocate within Malaysia to places where there would not be a real risk of suffering significant harm. I find that they do not meet the criteria in s.36(2)(aa).
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Anne Grant
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 4940

13 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies