1621336 (Refugee)

1621336 (Refugee) [2017] AATA 1151 (3 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621336
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Christopher Smolicz
DATE:3 July 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 July 2017 at 8:59am
CATCHWORDS
Refugee – Protection visa – Malaysia – Political opinion – Participated in one protest – “Yellow shirt” movement – No harm suffered – Credibility – Evidence vague – Significant inconsistencies
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Legislation 1994, 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 [in] December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa [in] August 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 issue in this case is whether the applicant meets the refugee or complementary protection criteria because of his actual or imputed political opinion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant is a [age] year old male born in Sabah, Malaysia. He arrived in Australia [in] June 2016 as the holder of an [temporary] visa.
The applicant made the following written claims in support of is application.
Malaysia’s economic situation is severe enough. The pressure of living is increasing, all the people are beginning to find way out because the existing government has been unable to change the current situation and the situation is becomes worse from day to day. The Malaysian Ringgit is worsening compared to other countries
He and several friends made an open protest to the government of Malaysia (GoM). Because of this there were orders that they should be arrested and imprisoned. Many “Yellow Shirt” protestors were not given a chance to get up and protest. The situation is not quite peaceful and safe.
He came to Australia for protection and to live in a more secure and peaceful life with a more democratic government.
The GoM has identified those involved in the assembly, participants were blacklisted and if he returns to Malaysia he will be arrested.
The GoM authorities will find him anywhere and it would not be safe. He will not have any protection or justice.
He did not attempt to relocate because the police are everywhere and he thinks Australia is the best place to get protections and live in peace.
The applicant said that he completed the claims with the assistance of a friend and they were true and correct.
The Tribunal invited the applicant to provide further detailed evidence about his claims for protection.
The applicant said that he participated in protests against the government of Malaysia in April 2016. He protested in support of the independence of Sabah from Malaysia. He protested because he does not want the Malaysian government to take revenue from oil and timber produced in Sabah. The applicant said he arranged for about [number] people to come to the protest from his village. The applicant said a permit was issued authorising the protest and there were about [number] people. Pro-government people attacked them. He does not know the people who attacked them.
The Tribunal asked the applicant to explain what happened to him at the protest. The applicant said nothing happened to him but he felt threatened. A friend of his who was a leader was attacked and his car was damaged. He made a complaint to the police. He subsequently feared for his life and escaped to Australia.
The Tribunal asked if the applicant had any evidence to support his claim that the protest took place. The applicant said there was no evidence about the protest activity.
The Tribunal asked the applicant if he had suffered harm in Malaysia because of his activities. The applicant said that he was threatened on the messaging service “WhatsApp”.
The Tribunal asked the applicant to explain who sent the message and what did it say. The applicant could not answer the question. After further questioning the applicant said that his friend got the message from pro-government people claiming they would be attacked. The Tribunal asked the applicant why his friend would be communicating with pro-government people. The applicant said he did not know how his friend was included in the discussion. The Tribunal found the applicant’s evidence vague and lacking in credibility.
The Tribunal again asked the applicant to clarify how the message was relevant to him and his fear of persecution. The applicant was unable to answer the question.
The Tribunal again asked the applicant if anything else happened to him before he left Sabah. The applicant said he was followed. On one occasion his car was flagged down. The applicant could not expand on his evidence.
The Tribunal asked the applicant why he fears returning to Malaysia. The applicant said that he wants the issues to settle down before he returns. The Tribunal noted that according to his evidence he took part in a protest in April 2016 and over 12 months had passed since the incident. The applicant said that his family told him the situation had not settled and in December last year a friend of his was arrested. The applicant did not provide evidence who his friend was or why he was arrested.
The Tribunal referred the applicant to the delegate’s decision and told the applicant that the delegate raised concerns about the credibility of his claims. For example the delegate noted that his claims were identical to [number] other Malaysian applicants who had applied for protection in Australia. The applicant suggested that they might also be from Sabah.
The Tribunal told the applicant it was concerned that his written claims made no reference to Sabah and were different from his evidence at the hearing. For example the Tribunal notes that in his written claims the applicant did not mention that he was protesting for the independence of Sabah. The Tribunal notes that at the hearing the applicant did not give any evidence that orders were made to arrest and imprison him.
In response the applicant said we were the “yellow shirts” and the others were “black shirts”. The Tribunal noted that focus of the “yellow shirt” movement was not the independence of Sabah/ Sarawak.
The applicant claimed that his friend helped him complete the form and there may be interpreting errors.
Country Information
In assessing the applicant’s claims, the Tribunal has had regard to the following country information prepared by the DFAT regarding political opposition and protest activity in Malaysia:
Political Rallies
3.60 The constitution states that all citizens have ‘the right to assemble peaceably and without arms’, however, in practice the government closely administers political assemblies and rallies under the Peaceful Assembly Act (PAA) and the Criminal Code. Permits can be difficult to obtain and can be restrictive in their application. The PAA requires organisers to submit notice of a rally to authorities ten days in advance.
3.61 Individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds. Bersih, a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4). The rallies attracted thousands of protesters and were supported by opposition parties.
3.62 The Bersih 4 rallies on 29 to 30 August 2015 saw approximately 100,000 people, mostly opposition parties and their supporters, civil society activists and Chinese Malaysians, take to the streets in Kuala Lumpur to call for the resignation of Prime Minister Najib in light of 1MDB corruption claims. The protest was peaceful and no violence was reported, despite the government declaring the protest illegal and banning the yellow t-shirts with ‘Bersih’ print that were worn by the protestors. Smaller rallies were also held in Melacca, Penang, Kuching, Kota Kinabalu with a small number of arrests. This was an improvement on the July 2011 Bersih 2 protest where the police used tear gas and water cannons to break up the protest and made approximately 1,500 arrests.
3.63 In response to Bersih 4. UMNO-linked NGOs, known as the ‘red shirts’, held a government approved rally in Kuala Lumpur on 16 September 2015. The protest messages were pro-Najib, pro-Malay and slogans and banners were ethnically charged. There were a few arrests and police used water cannons to disperse the crowd when it attempted to enter the Chinatown district.
3.64 In May 2013, the opposition PKR organised nationwide demonstrations known as the ‘Black 505’ rallies, disputing the results of the May 2013 general elections. The rallies attracted thousands of people and took place with little interference from authorities. However, police subsequently arrested and charged a number of alleged organisers under the PAA for failing to provide the required ten days’ notice for public assemblies. Reports on the number of organisers arrested range from between six to forty individuals.
3.65 DFAT assesses that protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest. High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code.
The Tribunal was also able to locate the following information about Sabah Sarawak Keluar Malaysia (SSKM):
SSKM’s Facebook page provides the following background information:
Sabah Sarawak Keluar Malaysia (SSKM) group was established on 2011 August, 9 approximately at 3.25pm, Tuesday, on Facebook. The Founder of this group is Doris Jones, a Sabahan-born Para Legal UK-based. The group started off with a small number of supporters, eventually gained more than a 10,000 online supporters and followers within a few months after its establishment.
[…]
In 2013, SSKM has been officially registered under a new Non-Government Organization based in the United Kingdom of Great Britain and Northern Ireland (UK) by the name of Sabah Sarawak Union – UK (SSU-UK).[1]
[1] ‘Sabah Sarawak Keluar Malaysia – SSKM’, Facebook, 6 June 2017, CISEDB50AD4418; Also see ‘Sabah Sarawak Keluar Malaysia – Sabah Sarawak Union’, SSKM – SSU(UK), 6 June 2017, CISEDB50AD4419
Sabah Sarawak Keluar Malaysia – Sabah Sarawak Union (SSKM-SSU(UK)) outlines that its ‘mission, vision & objectives’ are intrinsically tied to the secession of Sabah and Sarawak from the Federation of Malaysia.[2]
[2] ‘Mission, Vision & Objectives’, SSKM-SSU(UK), 6 June 2017, CISEDB50AD4421
The organization’s objective is to submit a petition to the United Nations that includes signatures of 300,000 people from Sabah and Sarawak who support secession from Malaysia:
MISSION
To receive an Official Declaration from The United Kingdom of Great Britain and Northen Ireland (UK) & the United Nations (UN) that Sabah (formerly known as North Borneo) and Sarawak (formerly known as The Kingdom of Sarawak) are no longer interested to continue and to be a part of The Federation of Malaysia, thus becoming true Independent and Sovereign Countries in South East Asia which shall be known by the name of "The Republic of North Borneo" and "Republic of Sarawak".
VISION
To revilitise the status of Independence for Sabah and Sarawak which was granted by The British before the formation of Malaysia in 1963. Thus will be able to truly develop these countries to become among the well established countries in South East Asia.
OBEJCTIVE
1. To educate the people of Sabah and Sarawak about the truth behind the history of the FORMATION OF MALAYSIA 1963, and THE RIGHTS OF SABAHAN AND SARAWAKIAN ACCORDING TO 18/20 POINTS MEMORANDUM.
2. To rise awareness and the sense of patriotism among Sabahans and Sarawakians towards their countries (Sabah and Sarawak). Thus, sparking the spirit of Nationalism towards their Countries that has been long been [sic] under the oppression and manipulation of the Malayan Government and corrupted local leaders.
3. To collect 300,000 signature of Sabahan and Sarawakian to be forwarded to the United Kingdom of Great Britain and Northen Ireland (UK) & United Nation (UN) that Sabah and Sarawak are no longer interested to continue being on a part of the Federation of Malaysia with Malaya.[3]
[3] ‘Mission, Vision & Objectives’, SSKM-SSU(UK), 6 June 2017, CISEDB50AD4421
Media reports confirms that on 1 February 2015, Free Malaysia Today reported that SSKM ‘volunteers’ were apprehended ‘handing out petitions for signature’.[4] The Malay Mail Online reported that four individuals distributed SSKM pamphlets promoting the rights of North Borneo people in an effort to collect 100,000 signatures for a petition to be forwarded to the United Nations.[5] On 28 September 2016, Malay Mail Online reported that the Sessions Court dropped sedition charges against SSKM volunteers who were charged in 2015 for distributing seditious pamphlets at the Tuaran open market.[6]
[4] ‘SSKM volunteers detained at Tuaran police station’, Free Malaysia Today, 1 February 2015, CXBD6A0DE19393
[5] ‘Sabah secessionist group volunteers charged with sedition’, Malay Mail Online, 16 March 2015, CXBD6A0DE19395
[6] ‘Court drops sedition charges against four Sabah secessionists’, Malay Mail Online, 28 September 2016, CX6A26A6E16672
According to the same report, ‘the Sabah Sarawak Keluar Malaysia movement’ was gazetted as unlawful by the Registrar of Societies.[7]
Findings
[7] ‘All ‘Sabah, Sarawak Keluar Malaysia’ NGOs banned’, Free Malaysia Today, 27 November 2014, CX1B9ECAB12825
The Tribunal has had regard to the applicant’s Malaysian passport and is satisfied that he is a citizen of Malaysia who travelled to Australia on a [temporary] visa. The Tribunal has assessed the applicant’s claims against Malaysia as his country of nationality and the receiving country for the purpose of the complementary protection criteria.
The Tribunal is satisfied on the evidence before it, that the applicant does not have a right to enter and reside in any other country, therefore the Tribunal finds he is not excluded from Australia’s protection obligations under s.36(3).
Credibility
The Tribunal did not find the applicant to be a credible witness. The Tribunal finds the applicant’s evidence about his political activity in Malaysia to be vague and inconsistent with his written claims.
For example, at the hearing the applicant claims he took part in one protest in April 2016 regarding economic independence for Sabah. He did not provide any evidence about being a member of any political party associated with independence in Sarawak. He claims he recruited about [number] members to the protest. The protest came under attack from pro-government people. He did not suffer any harm and reported the pro-government protestors to the police.
In his written claims the applicant said he and several friends made an open protest to the government of Malaysia and as a consequence orders were made that they should be arrested and imprisoned. His written claims suggest he was part of the “yellow shirt” movement and came to the adverse attention of the authorities. At the hearing he made no claims that he was threatened with arrest and imprisonment by the authorities. The applicant only referred to the “yellow shirt” movement when prompted by the Tribunal.
The Tribunal finds the inconsistencies in the applicant’s evidence significant and does not accept they are due to translating or interpreting errors associated with his original claim.
The Tribunal does not accept any of the claims made by the applicant or that he genuinely holds fear of any harm should he return to Malaysia. The Tribunal has had regard to the applicant’s evidence at the hearing and does not accept the applicant took part in any political protest activity in Malaysia. The Tribunal finds the applicant is not a member of any political party. He has never been arrested, detained or come to the adverse attention of the Malaysian authorities. He has not suffered any significant harm or serious harm in Malaysia because of his actual or imputed political opinion. He was issued a Malaysian passport in [month] 2016 and was able to freely leave Malaysia and travel to Australia.

The Tribunal is satisfied that the applicant does not face a risk of coming to adverse attention of the police or authorities because he attended a political rally in the past.
The Tribunal finds that an ordinary protestor with the applicant’s profile will be free to take part in protests in the future in Malaysia.
The Tribunal has had regard to country information and finds that Malaysia has a function Royal Malaysian Police (RMP) forced and the applicant has not claimed he would be denied police protection because of his political opinion. DFAT reports that credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. (para 5.5)
Having regard to the applicant’s profile, the Tribunal is satisfied that the applicant will not be denied access to police protection for any of the grounds set out set out in s.5J(1)(a) of the Act in the reasonable foreseeable future.
In conclusion, the Tribunal has had regard to the applicant’s evidence and country information and is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Malaysia in the foreseeable future because he took part in or organised anti-government protests activity in Malaysia. The Tribunal finds that the applicant’s fear of persecution because of his actual or imputed political opinion is not well-founded.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). In MIAC v SQRB[8] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition. It follows that the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from any person for reasons his political opinion as a necessary and foreseeable consequence of him being removed from Australia to Malaysia.
[8] MIAC v SZQRB [2013] FCAFC 33 (Landeer, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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 1151

3 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction