1620988 (Refugee)

1620988 (Refugee) [2017] AATA 2221 (11 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620988
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:K. Chapman
DATE:11 September 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 September 2017 at 4:04pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Christianity – Conversion of Muslim woman – Harm from religious authorities - Credibility – Evidence vague – Inconsistent – Late new claims
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (‘the Act’).
The applicants are a married couple and their young child, [names]. They claim to be citizens of Malaysia. The applicants applied for protection visas [in] August 2016, with only [Applicant 1] making written claims for protection in his own right (according to the protection visa application his wife and child rely upon his written claims, asserting fear on the basis of those claims). [Applicant 1]’s written claims for protection essentially concern that he is a Christian whom taught Bible studies to a Muslim friend, who subsequently converted to Christianity, and he was persecuted by the religious authorities in Malaysia thereafter. The delegate refused to grant the visas on the basis of not accepting the veracity of the claims for protection.
[In] December 2016, the applicants applied for review of the decision refusing the protection visas, providing a copy of that decision with their application and a statement from [Applicant 1] dated [in] December 2016. The applicants appeared before the Tribunal on 6 July 2017 to give evidence and present arguments. [Applicant 1] confirmed he would speak on behalf of his young [child], who had no claims for protection in his own right. [Applicant 2] confirmed that she had no claims to make in her own right either. As will be referred to in greater detail below, she did however raise claims at the review hearing. The applicants each confirmed that they were feeling well enough to give evidence and the Tribunal took their evidence in each other’s presence. At the review hearing the applicants submitted an article from The Guardian dated 7 June 2017 and a copy of a Baptism Certificate in respect of [Applicant 1] dated [in] December 1994. Following the review hearing, [Applicant 2] telephoned the Tribunal Registry to advise that she is pregnant. The Tribunal has duly considered the aforementioned material and information.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
‘Significant harm’ for these purposes is exhaustively defined in the Act: s.36(2A) and s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
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
Country of reference
According to the protection visa application, the applicants claim to be citizens of Malaysia. Given the personal details provided in that visa application, the Tribunal is satisfied they are indeed Malaysian nationals. Malaysia is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations under s.36(3) of the Act.
Issues
The issues in this review are whether any of the applicants has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of them being removed from Australia to their receiving country of Malaysia, there is a real risk that any of them will suffer significant harm.
Documentary evidence before the Tribunal
The Tribunal has its own file, and the Departmental file, relating to the applicants’ before it. Information including, but not limited to, the following is contained in those files:
a.the applicants’ protection visa application forms lodged [in] August 2016 (including extracts from their passports, copies of marriage and birth documentation, and copies of their Malaysian Identity Cards);
b.the Departmental delegate’s visa refusal decision dated [in] November 2016 (a copy of which was provided to the Tribunal by the applicants’);
c.the application for review submitted [in] December 2016 (including the statement from [Applicant 1] dated [in] December 2016);
d.Departmental administrative and Movement records; and
e.the material received at the review hearing (an article from The Guardian dated 7 June 2017 and a copy of a Baptism Certificate in respect of [Applicant 1] dated [in] December 1994) and information received by telephone following the review hearing indicating [Applicant 2] is pregnant.
Claims for protection
The applicants’ written claims for protection may be summarised as follows:
a.[Applicant 1] left Malaysia due to persecution of religious minorities. He taught Bible studies and Christianity to a Muslim friend who subsequently adopted Christianity and was Baptised. [Applicant 1] was interrogated and harassed by the religious authorities as a result. He fears his life will be in constant danger and he will be persecuted by the religious authorities;
b.[Applicant 1] was threatened with harm (including gaol) in respect of himself and his family by the religious authorities, who forced him to watch videos promoting Islam and warned him against proselytising;
c.[Applicant 1] approached Church leaders for assistance but they did not assist him;
d.[Applicant 1] moved from place to place when he realised his life was in danger, including four times during the last six months he was living in Malaysia. He cannot relocate within Malaysia because the country is controlled by Muslims who have no regard for people who turn away from Islam and they will spy on and disturb him and his family;
e.[Applicant 1] believes he will be harmed if he returns to Malaysia, indicating he knows of others in a similar situation who have disappeared and never been found, and also others who have been interrogated with electric shock and are now mentally disabled;
f.[Applicant 1] does not believe the Malaysian authorities will protect him as they do not protect those who go against Islam; and
g.[Applicant 2] and her [child] left Malaysia because they followed [Applicant 1] whom the religious authorities were not happy with. She fears their lives will be in danger and they will be harmed if they return to Malaysia, citing her husband’s written claims.
Evidence at the review hearing
The applicants’ evidence may be summarised as follows. They both informed the Tribunal that they prepared their own protection visa application, signed the application which they understood, the application and a statement from [Applicant 1] dated [in] December 2016 (which they submitted to the Tribunal) contain all of their claims for protection, and that all of these claims are accurate. The applicants’ also indicated that a [Pastor A] checked their protection visa application but it, along with the statement [in] December 2016, was written by [Applicant 1] and confirmed to be correct by [Applicant 2]. As outlined above, at the review hearing the applicants submitted an article from The Guardian dated 7 June 2017 and a copy of a Baptism Certificate in respect of [Applicant 1] dated [in] December 1994.
[Applicant 1] arrived in Australia [in] July 2016 with his family, holding a [temporary] visa. He departed Kuala Lumpur International Airport legally using his own passport to conduct this travel. No difficulties were experienced when they departed the Airport and he had no difficulties in entering Australia. [Applicant 1] told the Tribunal he intended to come to Australia for a three month holiday and then return to Malaysia. He added that he didn’t know the procedure to apply for protection when he first came to Australia. [Applicant 1] then informed the Tribunal he approached [Pastor A] in Australia who encouraged him to apply for protection. He later told the Tribunal that his father had encouraged him to take a holiday in Australia to let things calm. [Applicant 1] submitted that the situation had not so calmed and therefore he cannot return to Malaysia. In Australia [Applicant 1] has performed [certain] work in the vicinity of [Town 1]. He indicated he was referred by his father to a [name] from [town] to obtain employment. [Applicant 1] advised that he found [Church 1] in [Town 1] on the internet and is a regular attendee with his wife. He has also apparently performed work around his Church.
[Applicant 1] advised he worked as an [occupation] officer at a private company in Malaysia between 2007 and December 2015. He left that employment to conduct an online trading business, which he continued up until his departure for Australia in July 2016. [Applicant 1] indicated he left his employment as an [occupation] officer as he had to look after his [child] whilst his wife was working as an [employee] at the Malaysian [government] Department. He explained that from 2013 until July 2016, when he and his family travelled to Australia, they resided in accommodation owned by the Government of Malaysia which was provided to them through his wife’s occupation with the [government] Department. [Applicant 1] subsequently added that in the six months prior to travelling to Australia, he moved around other residences spending about two weeks of every month at home with his wife. [Applicant 2], his wife, was still working with the [government] Department when they travelled to Australia in July 2016, at which time she took unpaid leave. She did not resign her position until April 2017, when she did so by email. [Applicant 1] and his family continued to store their possessions, such as [items], in the Malaysian Government provided accommodation until approximately February or March 2017, just prior to his wife’s resignation. [Applicant 1]’s parents checked on their possessions from the time they came to Australia until the accommodation was relinquished, approximately seven months later. His father also paid rent to the Malaysian Government during this period. [Applicant 1] stated that no problems were experienced with the Malaysian [government] Department in relation to the accommodation.
[Applicant 1] advised that he is in regular contact with his parents, who aside from being ill, were otherwise alright in Malaysia. He confirmed his wife’s family were also alright in that country. [Applicant 1] informed the Tribunal that his [family member] made visits to Australia between December 2016 and February 2017, and May to June 2017, to see him and his family. His [family member] was refused entry to Australia when he attempted to return in June 2017, after being assessed as a [non-approved entrant]. [Applicant 1] confirmed that his [family member] experienced no problems returning to Malaysia on each occasion.
When asked by the Tribunal what he feared if he returned to Malaysia, [Applicant 1] replied that he fears the religious authorities will persecute him for teaching the Bible to Muslims who wanted to learn. He outlined that Christians and Muslims had many similarities and he had shared Christianity with them since his school days. [Applicant 1] stated that he did not attempt to recruit others to the Church but if they approached him he would tell them about his religion. He estimated that since he was [age] he had taught Bible studies to around [number] Muslim people, doing so one at a time, along with others. [Applicant 1] outlined that in 2011 he taught the Bible to a Muslim friend of his mother who worked as [occupations]. Her name is [Ms A]. [Applicant 1] explained that his mother and father were regular attendees of the [Church 1], with his father being a preacher for some time.
[Applicant 1] advised that in Malaysia problems are caused if one attempts to convert Muslims from their faith. He added that he did not encourage [Ms A] to join his Church, rather she approached him as she was a regular visitor to his home. [Applicant 1] explained that he taught her the Bible for over three years at home, generally in lessons of forty five minutes duration. In 2013 [Ms A] apparently came to live with [Applicant 1] and his parents. Some time in 2014 her [sibling], who is a devout Muslim, found out [Ms A] was living with them and in 2015 she apparently told her [sibling] she was studying the Bible.
In 2015 [Ms A] was apparently Baptised pursuant to the [Church 1] teachings. [Applicant 1] described being a participant in [Ms A]’s Baptism. It was purportedly conducted at a [facility] in a friend’s condominium complex. His name is [name]. The complex had a [number] story condominium approximately [distance] metres from the [facility]. The Church Pastor, the [official], of the [Church 1] in Malaysia, [Applicant 1]’s parents, and a small selection of friends were also present. The [official] performed the Baptism and told participants not to take photographs or tell anyone of it. The Baptism took approximately thirty minutes and was conducted in the [facility] which was booked by [name] the day before the event. The condominium management was not told of the reason for the booking. A [leisure centre] was located next to the [facility]. [Applicant 1] stated that he felt happy but scared during the ceremony. He was afraid someone might see what they were doing.

The Tribunal raised with [Applicant 1] that it seemed unusual a secret Baptism would be conducted at a condominium [facility]. He replied that they did not wear cloaks whilst conducting the ceremony. When asked by the Tribunal if there were security arrangements in place, [Applicant 1] stated that when they arrived at the condominium at 2pm they checked the camera and other places to ensure security. There was no discussion during this time and they did not see other people in the condominium. No names were used in booking the swimming pool. The ceremony then took place at [time]. The Tribunal raised with [Applicant 1] that it appeared quite risky for the Baptism to have been conducted in the [facility] of a condominium complex. He agreed, but stated he could not say no to [Ms A]. He indicated that if the religious authorities had seen the Baptism then “big problems” would have arisen. [Applicant 1] advised that after the Baptism everything was alright initially. However, [Ms A] then started to tell others that she is a Christian. She apparently told her friends and her [sibling]. The [sibling] subsequently prevented [Ms A] from visiting [Applicant 1]’s residence.
[Applicant 1] informed the Tribunal that the Religious Department in Malaysia took him [number] times in relation to his alleged conversion of Muslims to Christianity. He told them that “he didn’t force anyone, they came to him.” Despite his requests for a ‘legal letter’ in relation to their visits, one was not forthcoming. [Applicant 1] stated that he was first questioned in January 2016 for a few hours. The second occasion was in March 2016 where they “tortured him” by beating him and forcing him to watch pro-Islamic videos. The third time was in May 2016. The Tribunal asked [Applicant 1] to provide further detail concerning his alleged treatment by the Religious Department. He advised that in January 2016 he was going to a food shop when [number] men in a [certain] vehicle with religious inscriptions on the side apprehended him and conveyed him to a mosque school where he was questioned about the Muslim lady living in his home. He told them that she was renting a room in their house and he only taught her the Bible after she asked him to. [Applicant 1] was apparently held for [number] hours, was questioned in a small room and was warned against continuing his activities. He was unharmed but despite his request for a ‘legal letter’ one was not issued. [Applicant 1] thought everything was over then, however he stopped teaching the Bible outside of his house, although he still taught people inside.
[Applicant 1] outlined that in March 2016, [Ms A] advised him that she told her [sibling] she had been Baptised. Around this time [Applicant 1] was walking alone in a park when a group of [number] people approached him, advising they were from the Religious Department, and accused him of giving Bible studies. He denied that he was converting others and was then dragged away to a van. He struggled with the people, who were wearing normal clothing. They were different individuals to his earlier interrogation. [Applicant 1] was purportedly driven fifteen to twenty minutes away to a religious office where he was held in a seminar hall. He was shouted at and he asked them to charge him or take him to the police. [Applicant 1] was then apparently hit in his head, body and stomach with fists and by slapping. He was detained for [number] hours and sustained three rounds of beating, describing that he was “hit hard”. When asked by the Tribunal to outline his injuries, [Applicant 1] explained that he had some pain, but was not sore, had no bruises and required no medical attention. He was able to call his father who collected him and conveyed him to a police station. At the police station [Applicant 1] admitted he had taught the Bible but wanted the police to investigate his mistreatment. The police apparently gave him a choice, leave the matter alone or they would imprison him. The police refused to take his details. He then decided to go home and he became more fearful. Between March and May 2016 [Applicant 1] “didn’t do anything”. [Ms A] remained living with him at this time. His father warned him it was not safe at home and advised [Applicant 1] to stay with other relatives.
[Applicant 1] advised in May 2016 he was residing in the accommodation provided by the Malaysian [government] Department when his father came and told him there were people outside the residence. He was taken by a group of people who told his father where they were taking him, but did not permit his father to follow. He was taken to an office and shown videos of electric shocks and persons disabled by them, in addition to being threatened with an accident happening to him. [Applicant 1] told them he didn’t care if they killed him and in response he was punched hard in the stomach by a large man who knew his family. The man threatened [Applicant 1], his wife and [child]. When asked by the Tribunal if his father was threatened, [Applicant 1] replied that he was not because he doesn’t teach the Bible himself. [Applicant 1] admitted to conducting Bible study and he was punched two or three more times. He was hurt, but had no bruising. Following the incident, that night he went to a medical clinic but had no medical problems identified.
[Applicant 1] asked for help at his Church however they wanted him to stop coming due to the attention he was attracting. His father told him it was better he didn’t live with him and suggested he changed places. He initially said he didn’t do that, then advised he went to his [family member]’s house and then to his [relative]’s home. His father suggested he come to Australia. [Applicant 1] then went to [country] for one week, but did not make enquiries there regarding his safety because he didn’t face a political issue. He had no problems at the border. The Tribunal raised with [Applicant 1] that his evidence regarding leaving home appeared inconsistent with his earlier evidence that he was at home two weeks of each month in the period prior to travelling to Australia. After pausing, he replied that in the last two weeks before he left Malaysia he lived at his usual residence. He added that his father sent him to Australia to visit because he could not seek assistance from the police or the Church. His father also apparently advised him to go to Church in Australia and tell a pastor what happened to him. [Applicant 1] confirmed to the Tribunal that he went to Australia for a holiday and didn’t know about the protection visa procedure at the time. He stated that the religious authorities are connected to the police and Government of Malaysia, and it is possible they can influence the latter.
[Applicant 1] confirmed to the Tribunal that he was not found guilty of a criminal offence and did not have any criminal investigations or charges pending as reflected in his protection visa application. When asked by the Tribunal why he waited over one month from arrival in Australia to claiming protection, he replied that he didn’t know about protection and learned of it from the Pastor after his arrival. The Tribunal raised with him that he earlier advised he came to Australia for a holiday and intended to return to Malaysia, and in addition to delaying his claim for protection this might suggest his claims were not genuine. He replied that it was hard to write his claims, he didn’t know the rules and he obtained assistance from the Pastor.
The Tribunal asked [Applicant 1] when he last saw [Ms A]. Following a lengthy pause, he replied that it was in June 2016, outside of her own home in Malaysia as in May 2016 his father had asked her to leave their house. His description was vague and when this was raised with him by the Tribunal, he changed tack with his evidence stating he last saw [Ms A] at a Chinese restaurant. They apparently spoke normally to each other, however they didn’t discuss the issues between them. When asked of [Ms A]’s employment status at that time, [Applicant 1] variously indicated she was not working, that he didn’t really know and that she had resigned as a [occupation] but was still performing [other] work. His account was full of inconsistency and vagary. The Tribunal asked [Applicant 1] again when he last saw Ms A] and he responded that it was in July 2016 in Australia with her friends. She apparently came and visited him in [Town 1] and stayed with his family for [number] days. Following this [Ms A] departed for [city] and he was later told by his father that she had returned to Malaysia and was engaged in employment as a [occupation]. He believes she remains in Malaysia. When asked by the Tribunal if anything adverse had happened to [Ms A] in Malaysia, [Applicant 1] explained that the religious authorities and Government did not harm her because she was protected by her [sibling] and her Identity Card reflected that she was a Muslim. The Tribunal raised with [Applicant 1] that his evidence appeared inconsistent concerning when he last saw [Ms A]. He responded that the Tribunal had initially asked him when he last saw her in Malaysia. The Tribunal advised [Applicant 1] that it had asked him very clearly when he last saw her and invited his comment. He had no comment to make. The Tribunal observed [Applicant 1]’s evidence concerning when he last saw [Ms A] to be vague and inconsistent, in addition to being delivered in an evasive fashion.
When asked by the Tribunal if he had ever tried to convert others to Christianity, [Applicant 1] replied that he had not tried to convert anyone to his religion. The Tribunal asked him why he did not include that he was beaten in his written claims. He replied that he thought it best to write in short form then explain later. The Tribunal raised with him that by omitting this information in his written claims it might suggest they were not genuine. He replied that he knew he would be interviewed and preferred to explain then. When asked if he thought he would be harmed on account of his religion if he returned to Malaysia, he stated he would if he did the same thing, adding that he will still tell people about the Bible but will never attempt to convert them. The Tribunal had the benefit of observing [Applicant 1] give his oral evidence in person. His claims concerning his religious teachings, interaction with [Ms A]. purported harm at the hands of the religious authorities, the alleged Baptism of [Ms A] and when he last saw [Ms A], were delivered in a disjointed and inconsistent fashion, often permeated by lengthy pauses, and containing much vagary. Following careful consideration, the Tribunal finds that [Applicant 1] was not a witness of candour in relation to the aforementioned matters.
During the review hearing, [Applicant 1] submitted a copy of his own Baptism Certificate dated [in] December 1994, with his personal details handwritten therein. When asked by the Tribunal why he did not submit that Certificate to the Departmental delegate when he presented for interview, [Applicant 1] stated that he forgot to do so. The Tribunal observed that it seemed unusual he would forget to take the Certificate to interview and invited his comment. [Applicant 1] replied that, “it didn’t come to his mind” and also the Certificate was sent to him by his father in September 2016. The Tribunal notes that the Departmental delegate’s decision, a copy of which [Applicant 1] provided, reflects he attended the interview [in] November 2016. The Tribunal subsequently raised the provisions of s.423A of the Act, regarding new claims and evidence, with [Applicant 1] and provided him with a further opportunity to comment upon why he did not provide the Baptism Certificate to the Departmental delegate. He replied that he just remembered to bring it to the hearing. He had no comment when the Tribunal asked if he was merely providing the document to attempt to strengthen his claim. Following careful consideration, the Tribunal finds that the document was created purely to attempt to strengthen his claims for protection and accordingly it is afforded no weight. [Applicant 1] also submitted an article from The Guardian dated 7 June 2017 entitled ‘Christian preachers disappearance in Malaysia stokes fears of crackdown on religious minorities’, indicating it shows there is a problem in Malaysia with religion. The Tribunal notes that none of the applicants, or their family members, are referred to in that article and therefore it is afforded no weight.
The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT) with [Applicant 1] indicating that ‘DFAT assesses that Malaysian Christians are generally able to practise their religion without interference. Occasionally they may face a low level of official discrimination but do not face official or societal discrimination or violence on a day to day basis.’[1] The Tribunal indicated to [Applicant 1] that the country information does not tend to support his claims to have suffered, or that he would suffer, harm in Malaysia due to him being a Malaysian Christian, inviting his comment. He replied that the country information does not reflect the situation in practise. He referred to The Guardian article regarding the Pastor disappearing, adding that a long time ago a Pastor in his Church was killed. The Tribunal drew to his attention that the article did not refer to his specific circumstances. Further, the Tribunal advised that his evidence was that he was not prosecuted for his actions. [Applicant 1] replied that there was no solid evidence to prosecute him. The Tribunal raised with him that it seemed his father was not prosecuted either. [Applicant 1] replied variously that his father didn’t do the same thing, he would approach people but knew what to do to keep things secret, and his father never brought people to the Church.
[1] Paragraph 3.47 DFAT Country Report Malaysia of 19 July 2016.
The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT) with [Applicant 1] indicating that conversion from Islam is extremely difficult, permission from the Sharia Courts must be obtained which is difficult and ‘DFAT assesses that Muslims face high levels of official discrimination under Malaysian law if they attempt to convert from Islam or marry a non-Muslim.’[2] The Tribunal invited his comment and he replied “Yeah, it’s true.” The Tribunal raised with [Applicant 1] that the Departmental delegate’s decision, a copy of which he provided to the Tribunal, indicates he told them at interview [in] November 2016 that he converted a Muslim lady who lived in his house to Christianity, she was secretly Baptised, she subsequently broadcast her conversion to others and she was able to maintain her occupation as a [work]. The Tribunal advised him that evidence tends to suggest that lady was not in fact converted to Christianity as she was able to maintain her employment free from the interference of the authorities, with the Country Information suggesting she would face high levels of official discrimination if converting, inviting his comment. [Applicant 1] responded that [Ms A] did not change her Malaysian Identity Card, never went to the Sharia Court (who would not permit the conversion), rather she told close persons openly and they wouldn’t hurt her. He variously advised the Tribunal that she was not practising Islam and that she did tell people outside her family of the conversion. When asked by the Tribunal if [Ms A] was openly telling others of her Christianity then why did she not face problems, [Applicant 1] replied that she was smart enough, did not have a Church certificate and there was no solid proof. He added that she told her friend and they didn’t tell anyone, noting that he was in trouble because she told her [sibling].
[2] Paragraphs 3.32 – 3.36 DFAT Country Report Malaysia of 19 July 2016.
The Tribunal raised with [Applicant 1] that the Departmental delegate’s decision indicates he told them at interview [in] November 2016 that he and his wife lived in accommodation provided by the Malaysian [government] Service. He confirmed that was correct. The Tribunal raised that if his wife was employed by the Malaysian [government] Service, and they lived in accommodation provided by them, that might tend to suggest he was not of adverse interest to the Malaysian authorities. He replied that he had no comment on that, he just told what happened, there was no proper documentation or legal notice and “it couldn’t be proved.”
The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT) with [Applicant 1] indicating that ‘In accordance with the Constitution, individuals facing serious criminal charges can be prevented from leaving Malaysia. All travellers are checked against a Travel Status Inquiry (SSPI) system maintained by the Immigration Department prior to departing from an airport or port. When leaving Malaysia, Malaysians must present a valid passport and a valid visa for their destination country, where required, but this is a criterion imposed by airlines rather than Malaysian immigration. The Ministry of Home Affairs is currently designing a new Advanced Passenger Screening System, similar to Australia’s system.’[3] The Tribunal indicated to [Applicant 1] that the country information regarding Exit and Entry procedures in Malaysia does not tend to support his claims that he was able to depart through the Airport at Kuala Lumpur using his own passport if he was of interest to the authorities, inviting his comment. He replied that there was no strong evidence to charge him, it was the Department of Religion who caused the difficulties for him, there was no documentation (including legal) in the system, they did not act legally and the things done to him were “behind the law.”
[3] Paragraph 5.21 DFAT Country Report Malaysia of 19 July 2016.
[Applicant 2] was asked by the Tribunal if she would like to make any comments following the provision of [Applicant 1]’s oral evidence, during which she was present in the hearing room. She advised that she knows what her husband is going through, she is employed in the Government sector and she is aware of the death of a Church Pastor in 1995 or 1996. Following that death she apparently became scared. [Applicant 2] indicated that she spoke to the Church [senior official] regarding her husband’s situation but he did not want to become involved. She confirmed to the Tribunal she followed her husband to Australia and that they came to this country for a holiday. [Applicant 2] told the Tribunal that she “heard from her husband that they were under threat” and their home was near a mosque so she was a bit worried. She reconfirmed she thought she was coming to Australia for a three month holiday, however when they met the Pastor he suggested they apply for protection. She stated she didn’t want to add anything further.
When asked by the Tribunal what she feared if returning to Malaysia, [Applicant 2] advised variously, “I really don’t know”, there might be danger, maybe they will forget us, “maybe the problem will be solved”, and that she doesn’t really know what will happen. The Tribunal asked [Applicant 2] to outline her employment situation in Malaysia. She indicated she retained her position with the Malaysian [government] Department after arrival in Australia, and that she faced no difficulties with that organisation. When asked by the Tribunal when she ceased employment with that Department, [Applicant 2] initially advised in April 2017 she applied via email. She subsequently clarified that she had actually applied for unpaid leave at that time and she could return to her employment if she so wished. [Applicant 2] displayed an evasive demeanour whilst providing this evidence. [Applicant 2] confirmed she relinquished the accommodation provided by the [government] Department in April 2017 and that it was rented by her [family member] whilst she was in Australia. She confirmed there were no problems for her family in Malaysia. [Applicant 2] also confirmed she arrived in Australia [in] July 2016 holding a [temporary visa] as reflected in her application for protection, and that she departed Malaysia legally through the Airport using her own passport.

[Applicant 2] told the Tribunal that she had to change Districts with her employment due to the issues faced by her husband. The Tribunal asked why this was not reflected in her written claims and she responded, “I don’t know.” The Tribunal raised with her that by not so including these claims in her written application for protection their credibility might be undermined, inviting her comment. [Applicant 2] replied that there might be a problem for her husband and for that reason she didn’t want to return to work in the same District. The Tribunal provided her with another opportunity to comment on the delay in raising this claim, however [Applicant 2] had nothing further to add. She subsequently confirmed to the Tribunal that she was still employed by the Malaysian [government]Department. When asked by the Tribunal if there were any problems for her family in Malaysia she replied that her [family member] was ill but that was all. When asked by the Tribunal if she was making claims for protection in her own right she stated that she was not and was only seeking to rely upon those of her husband. She advised that she did not want to remain in Australia permanently, rather she wanted temporary protection. [Applicant 2] indicated that she intends returning to Government employment in Malaysia, and that she wanted another one or two years in Australia before doing so. The Tribunal raised with [Applicant 2] that her evidence advising she is intending to return to Malaysia might undermine the claims that they cannot return at all, inviting her comment. She replied that when they arrived in Australia they were in a “bad place” but she is “not sure what is happening now.”
The Tribunal raised the provisions of s.423A of the Act, regarding new claims and evidence, with [Applicant 2] and provided her with the opportunity to comment upon why the delay in raising her new claims and evidence at the review hearing should not undermine their credibility. She replied that she didn’t raise her claim that she couldn’t return to the same District for employment due to her husband’s problems in the written application for protection because she was “not thinking”, her husband wrote the claims, and she just followed him. The Tribunal raised with her that in earlier oral evidence she advised she was aware of the written claims, which were accurate and complete. [Applicant 2] responded that she was following her husband. [Applicant 2] then stated her “job is not a problem”, she just wanted to change District for her husband’s sake. She said she “doesn’t fear for herself, just for her husband and child.” [Applicant 2] indicated that her [child] was under threat of kidnapping due to her husband’s predicament. The Tribunal asked [Applicant 2] why she delayed in raising this claim, with her responding that she is worried about that situation. The Tribunal raised with her that it did not appear there was a reasonable explanation for the delay in raising that claim and invited her comment. She replied that if she returns to Malaysia this is what will happen. The Tribunal raised with [Applicant 2] that by retaining her employment with the Malaysian [government] Department, holding her employer provided accommodation for a lengthy period, and departing Malaysia legally through the Airport, these matters might suggest she was of no interest to the authorities. She replied that she had no comment. [Applicant 1] stated that “she didn’t understand but now does”, adding he had no further comment. The Tribunal had the benefit of observing [Applicant 2] give her oral evidence in person. Her oral evidence and new claims were delivered in a disjointed and confusing fashion, containing much vagary and an opaque quality. Her demeanour was at times evasive. Following careful consideration, the Tribunal finds that [Applicant 2] was not a witness of candour in relation to her evidence in support of the claims for protection.
Pursuant to the provisions of s.424AA of the Act, the Tribunal drew to the attention of [Applicant 1] information provided by [Applicant 2] in her oral evidence. She told the Tribunal that the family were all coming to Australia for a three month holiday and applied for protection after speaking to the Pastor. She also advised she retained her position in the Malaysian [government] Department and only recently relinquished her employer provided accommodation in Malaysia. Further, she indicated there have been no problems for either her family or [Applicant 1]’s in Malaysia, she does not want to remain in Australia permanently, she intends returning to work in the Government sector in Malaysia, and she wants another one or two years in Australia. [Applicant 2] also raised late claims regarding not wanting to return to work in the same District and that their [child] might be kidnapped if they returned to Malaysia. The Tribunal advised the aforementioned information was relevant as it tends to undermine the genuineness of [Applicant 2]’s claims for protection. [Applicant 1] was offered an adjournment before commenting on or responding to this information. He responded immediately, indicating [Applicant 2] and he spoke about only wanting temporary protection, he cited the three incidents from January to May 2016 noting they just wanted some time in Australia, his wife was accurate in advising they just wanted temporary protection, he wants to return to Malaysia but is not sure if it is the right time to do so, and he referred to The Guardian article as evidence justifying his fears. The Tribunal has carefully considered the response of [Applicant 1] in its decision making process.
The Tribunal raised with the applicants’ that it had the following concerns with the credibility of their claims for protection, although it had not formed a concluded view. [Applicant 1] did not raise that he was beaten in his written claims, although he indicated that his written claims were accurate and complete. Further, the instructions for the protection visa application note that it is important to raise all matters in the written claims. Additionally, [Applicant 1] gave evidence that he was beaten, yet there was no bruising and in regard to May 2016 he went to a medical clinic and there were no medical problems detected. Also, his account of his purported three detentions was lacking in detail. [Applicant 1] was invited to comment on the aforementioned matters but declined to do so.
The Tribunal raised with [Applicant 1] that his evidence was that he was involved in a secret Baptism for [Ms A] in 2015, yet it was conducted in a condominium [facility]. His description of the associated security arrangements was vague and lacked detail. The Tribunal raised that it might have difficulty accepting this event took place in such a public area when [Applicant 1] asserted there were high risks for being involved. [Applicant 1] was invited to comment on the aforementioned matters but declined to do so. The Tribunal raised with [Applicant 1] that his evidence was that he experienced difficulties from the religious authorities yet he and his wife physically occupied accommodation provided by the Malaysian [government] Department until they departed for Australia (notwithstanding his subsequent evidence that he moved residences), [Applicant 2] retained her employment with the [government] Department, his father visited this accommodation without incident since they have been in Australia and it was only recently relinquished, his protection application indicated he resided there in the three years prior to coming to Australia yet he provided inconsistent oral evidence concerning his time at that residence in the six months prior to travelling to Australia, and he departed Malaysia legally through the Airport using his own passport, and that these matters tended to undermine the credibility of his claims for protection. [Applicant 1] was invited to comment on the aforementioned matters but declined to do so.
The Tribunal raised with [Applicant 1] that his evidence was that there has been no problem for his parents in Malaysia but he indicated they were present at the Baptism of [Ms A], and that he advised at one point his father had been involved in approaching people regarding their religion. [Applicant 1] was invited to comment on the aforementioned matters but declined to do so. The Tribunal raised with [Applicant 1] that his evidence was that [Ms A] openly discussed her conversion to Christianity but no harm came to her, that he gave inconsistent oral evidence concerning when he last saw her with one version being it was in Malaysia and another that it was in Australia, and that this evidence might tend to undermine the genuineness of his claims. [Applicant 1] was invited to comment on the aforementioned matters and he responded that [Ms A] did come to Australia, he was not sure of the reason but believed it was just for a visit.
The Tribunal raised with [Applicant 1] that [Applicant 2]’s evidence (referred to previously pursuant to s.424AA of the Act) was that she still retained her employment with the Malaysian [government] Department and only recently relinquished her accommodation provided by them, and she indicated she did not want to remain in Australia permanently but only for one to two years. She also raised late claims regarding needing to work in another District in Malaysia and that their [child] might be kidnapped. [Applicant 1] was invited to comment on the aforementioned matters and responded that [Applicant 2] did not claim she wanted to work in a different place, and that the Religious Department can do anything to his wife and [child]. He added that she fears returning to the same place in Malaysia, and she wished to go to a new place to avoid difficulties. The Tribunal raised with [Applicant 1] that it might have some difficulty accepting the explanation provided for the delay in raising [Applicant 2’s] new claims and evidence (referred to previously pursuant to s.424AA of the Act), that being [Applicant 1] filled in the application for protection, and invited his comment. [Applicant 1] replied that [Applicant 2] was not raising new claims, rather she just wants to go to a different place so nobody knows they have returned. Prior to the conclusion of the review hearing, the Tribunal offered both [Applicant 1] and [Applicant 2] two further opportunities to provide any additional evidence. They both declined to do so.
Analysis
The Tribunal has very carefully considered all of the applicants’ claims, individually and cumulatively, and the evidence before it. The Tribunal is prepared to accept that both [Applicant 1] and [Applicant 2] are members of the [Church 1]. However, the Tribunal does not accept the veracity of the applicants’ claims that they have been threatened with any harm, or have been harmed in any manner, by any religious authority (or Government instrumentality) due to the serious credibility concerns with their evidence that developed during the review hearing. As previously outlined, [Applicant 1]’s evidence concerning his religious teachings, interaction with [Ms A], purported harm at the hands of the religious authorities, the alleged Baptism of [Ms A] and when he last saw [Ms A], was delivered in a disjointed and inconsistent fashion, often permeated by lengthy pauses, and containing much vagary. As noted previously, the Tribunal finds that [Applicant 1] was not a witness of candour in relation to the aforementioned matters. Following careful consideration, the Tribunal does not accept that [Applicant 1] ever gave Bible or religious instruction to others including [Ms A], or that he participated in a Baptism regarding [Ms A], or that he was persecuted or otherwise harmed in any fashion by religious authorities within Malaysia, or that he was sought assistance from his Church, or that he sought assistance from the police, or that he moved residences to avoid harm, or that any other claim for protection he has made is genuine.
As noted above, the Tribunal has found that [Applicant 2] was not a witness of candour in relation to her evidence in support of the claims for protection, including her new claims, due to its disjointed, confusing, vague and opaque quality, in addition to her at times evasive demeanour. Following careful consideration, the Tribunal does not accept that she genuinely supports her husband’s claims for protection, or that she fears in any respect either for herself or her husband or [child] that harm has or will come to them from the religious authorities. The Tribunal does not accept her new claims that she needs to relocate employment Districts to avoid harm or that her [child] is at risk of kidnapping if they return to Malaysia. The Tribunal does not accept any claim for protection that she has made, nor does it accept she genuinely believes she requires protection in relation to her husband’s claims for protection. It is worth pausing to reflect that [Applicant 2] is still employed by the Malaysian [government] Department, a situation simply incongruous with her or any member of her family being of adverse interest to the religious authorities, or any other Government instrumentality, in Malaysia.
For completeness, the Tribunal has further considered the country information relating to Malaysian Christians and finds the applicants’ would not be of any adverse interest to the Malaysian authorities on account of being members of the [Church 1]. Further, the Tribunal has considered the country information relating to conversion from Islam to Christianity and finds it incongruent with the narrative presented by the applicants’ regarding [Ms A] adopting Christianity yet facing no issue with her employment or coming to any adverse attention of the Malaysian authorities. Additionally, the Tribunal has considered the country information regarding Exit and Entry procedures in Malaysia, finding that the ability of the applicants’ to depart lawfully through the Kuala Lumpur International Airport indicates they are of no adverse interest to the Malaysian authorities.
For the reasons outlined above, the Tribunal does not accept that either [Applicant 1] or [Applicant 2] has ever faced, or would face, harm in Malaysia from the religious authorities or any other instrumentality of the Malaysian Government. It follows that the Tribunal does not accept the applicants’ [child] has faced, or would face, any such harm. Accordingly, the Tribunal is not satisfied that Australia’s protection obligations are invoked on the basis of any of the claims that have been raised by any of the applicants.
CONCLUSION
Following careful consideration of the evidence, the Tribunal is not satisfied that any of the applicants has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of them being removed from Australia to Malaysia, there is a real risk that any of them will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that any 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.
K. Chapman
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2221

11 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice