1700374 (Refugee)

[2019] AATA 5831

1700374 (Refugee) [2019] AATA 5831 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700374

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE:4 June 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 June 2019 at 2:04pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – Stateless – parents’ migration history – nature of the applicant’s parents’ relationship status – bigamous relationship – returnee to Malaysia – denied Malaysian birth registration – difficulties in registering birth – tribunal does not accept applicant is stateless – older sister able to obtain passport – marriage made with knowledge and consent of both parties – mother’s evidence was illogical and inconsistent – credibility of father – decision under review affirmed    

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65 424A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia(1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs, [1997] FCA 1198
Iyer v MIMA [2000] FCA 1788
Iyer v MIMA [2000] FCA 52
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SAAD v MIMIA [2003] FCAFC 65
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is an infant child of [number] years at the time of this decision.  She was born in Australia to Malaysian citizen parents, each of whom are, separately, applicants for protection visas of the same subclass as that which applicant is seeking.  It appears from available evidence that the marriage of the applicant’s parents was invalid because the applicant’s father has a living former spouse in Malaysia and he did not obtain a divorce prior to his marriage in Australia.  These facts were known to the applicant’s mother at the time of the marriage.  The applicant claims to be stateless and claims to fear harm in Malaysia due to her parents’ migration history; their formal relationship status; her birth registration status; and, as a returnee. 

3. The applicant was invited to appear before the Tribunal on 26 June 2018, 24 October 2018, 21 March 2019 and again on 16 May 2019, to give evidence and present arguments.  The applicant was represented in this application by a registered migration agent.  The applicant’s father appeared as the applicant’s advocate at the first two hearings and the applicant’s mother appeared as the applicant’s advocate at the final two hearings.  The Tribunal was assisted in this review by the services of an interpreter fluent in both the Mandarin and English languages.

4. The applicant, who claims to be stateless, was born in Australia on [date] to a Malaysian citizen father and a Malaysian citizen mother, both of whom are at the time of this decision, applicants for the same subclass of visa as the applicant. The applicant applied for protection on 31 August 2016.  As noted above, on 7 December 2016, a delegate of the Minister for Immigration refused to grant the applicant a Protection visa.

5. The delegate refused to grant the visa on the basis that the applicant did not hold a well-founded fear of persecution in Malaysia now, or in the reasonably foreseeable future for the essential and significant reason of her being born into a bigamous relationship, being unable to register her birth with Malaysian authorities, having a father with a long migration history in Australia, being stateless or for any other reason.  The applicant applied to this Tribunal for a review of that decision.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.  

10. 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.

    Findings relating to applicant credibility

11. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. 

    [1]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

12. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[2] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[3]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 

    [2](1996) 40 ALD 445.

    [3]At 482.

13. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[4] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[5]

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    [4](1996) 185 CLR 259.

    [5]At [25].

14. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[6]  Nevertheless, as Burchett J counselled,[7] it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    [6][1997] FCA 1198 ( accessed 15 February 2017).

    [7]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

15. The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[8]  On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[9]  Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.  However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[10]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[11]  The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[12]

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    [8]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 15 February 2017).

    [9]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

    [10]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [11]MIMA v Rajalingam (1999) 93 FCR 220.

    [12](1999) 197 CLR 510 at [191].

16. The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

17. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.  The Tribunal notes that in Iyer[13] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant's fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[14]

    [13]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

    [14]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

18. The Tribunal also notes that if it makes findings that an applicant's claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm.  Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims. 

19. On the other hand, if the decision-maker finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is a subjective fear.[15] 

    [15]SAAD v MIMIA [2003] FCAFC 65 (Cooper, Carr and Finkelstein JJ, 11 April 2003) at [38]; Selliah v MIMIA [1999] FCA 615 at [40].

    Mandatory considerations

20. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in this case is whether the applicant holds a well-founded fear of persecution in Malaysia now, or in the reasonably foreseeable future for the essential and significant reason of her being born into a bigamous relationship, being unable to register her birth with Malaysian authorities, having a father with a long migration history in Australia, being stateless or for any other reason.  

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

    IDENTITY

23. The applicant claims to have been born in Australia on [date] to a Malaysian citizen father and a Malaysian citizen mother, both of whom are also applicants seeking protection under separate applications.  The Tribunal has viewed the applicant’s Australian birth certificate and finds these claims to be established.

24. The applicant, through her representative, claims to be stateless on the basis that her parents’ attempts to register her birth through the Malaysian Consulate in Australia have been unsuccessful.  This is stated to be because of the bigamous nature of the applicant’s parents’ relationship.  The Tribunal has received copies of the relevant correspondence between the Malaysian Consulate and the applicant’s parents and accepts that there is some administrative difficulty in registering the applicant’s birth with Malaysian authorities in Australia.

25. The Tribunal wrote to the applicant on 15 February 2019 pursuant to s.424A of the Act in the following terms:

    In addition to the Country Information surveyed in the delegate’s decision record refusing your original application for protection, the Tribunal draws your attention to the following relevant country information:

    1.     In addition to the procedures whereby the birth of a child may be registered with Malaysian authorities in Malaysia, the Website of the Malaysian Consulate General in Australia[16] advises that registration in Australia is also possible.

    [16]Accessed 30 October 2018.

    2. The Tribunal also notes that Part III of the Federal Constitution of Malaysia (the Constitution) concerns citizenship. In particular, Article 31 of that Constitution provides that the Second Schedule to the Constitution has application regarding citizenship.

    Relevantly, Part III of the Second Schedule, at section 17, provides as follows:

    For the purposes of Part III of this Constitution references to a person‘s father or to his parent, or to one of his parents, are in relation to a person who is illegitimate to be construed as references to his mother,

    …

    The Tribunal further notes that Part II of the Second Schedule, at section 1, provides as follows:

    Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

    (a)   every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; and

    (b)   every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State; and

    (c)   every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang di- Pertuan Agong, registered with the Federal Government; and

    (d)   every person born in Singapore of whose parents one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph; and

    (e)   every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.

    The foregoing information is information, which if accepted, would be the reason or a part of the reason, for affirming the decision that is under review.  This is because your claims for protection infer that you are potentially rendered stateless as a consequence of the apparently bigamous Australian marriage of your Malaysian citizen biological father to your biological mother (also a Malaysian citizen). The foregoing information suggests that you are, and would continue to be, entitled to register for Malaysian citizenship, either within Australia or on return to Malaysia–and that this right can be exercised by your behalf by your biological mother.

    The Tribunal notes the submission made on behalf of your biological parents, dated 21 November 2018 suggesting that an application for birth registration has been made on your behalf to the Malaysian Consulate in Australia.

    The Tribunal requests that a certified copy of your Malaysian Birth Registration document be provided to the Tribunal by 1 March 2019.

1. On 1 March 2019, the following relevant written submission in response to the foregoing country information provided by the Tribunal was received from the applicant’s representative relating to the question of the applicant’s claimed statelessness:

   We refer to your invitation to comment on dated 15 Feb 2019.

   The applicant responds that Malaysia has not yet permitted her birth to be registered, and is not recognised as being Malaysian (even assuming the AAT is correct in relation to whether [the Applicant] is a Malaysian citizen).

   The registration certificate for [the Applicant] cannot be produced because Malaysia has not yet decided the application that has been made.

   The applicant has provided the evidence of the registration application having been made for [the Applicant], and it is requested that the AAT wait for a decision.

   If [the Applicant] is not stateless, the applicant is entitled to Protection because she is being refused recognition of her citizenship status and therefore her rights as a Malaysian.

2. At the hearing on 21 March 2019, the Tribunal pointed out to the applicant’s mother and representative that, while the above response addressed the difficulties that were being experienced in registering the applicant’s birth in Australia with Malaysian authorities, it confused registration with the legal question of citizenship.  Accordingly these submissions had failed to answer the Tribunal’s specific concerns about the applicant’s underlying claim to be stateless.

3. The question of birth registration is separate and distinct from the legal question of statelessness.  Accordingly, the suggestion above, that the Tribunal await the outcome of the birth registration application is noted, but is not dispositive of the question of the applicant’s citizenship.  Accordingly, no further adjournment of this application on the basis of the administrative process surrounding the registration of the applicant’s birth with Malaysian authorities is warranted.

4. On 5 April 2019, a further written submission was received from the applicant’s representative relating to the question of the applicant’s claimed statelessness:

   1.     The Country Information regarding Malaysian Citizenship

   Assuming the Malaysian Constitution information is correct regarding [the Applicant] being a legal citizen, she would nevertheless be denied the right to be registered.

   [The Applicant’s] registration application was submitted on 16th November 2018, and no response has yet been received due to the 8-month time frame needed. The email from the Malaysian Consulate shows that [the Applicant’s] older sister [was] similarly born in Australia to the same parents, was denied Malaysian birth registration as follows:

   If parents unable [sic] to provide official Malaysia marriage certificate, the child cannot be registered under Malaysia birth registration even with registration under [name deleted] (Child’s mother)

   It is impossible to provide a Malaysian marriage certificate of [the Applicant’s] parents. Thus, in spite of what the Constitution says, [the Applicant] would be denied her rights to be recognized as a citizen.

   We refer to the following information from the Australian Parliamentary Library regarding complementary protection:

   1989 Convention on the Rights of the Child

   In the context of determining eligibility for international protection, article 3 of the CRC is of paramount importance.[55] It provides that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration (emphasis added)’. It has been argued that in the refugee determination context, the best interests principle should therefore apply not only when a child claims asylum in their own right, but also when a child is impacted by a parent’s application.[56]

   […]

   By intentionally making the best interests of the child ‘a’ rather than ‘the’ primary consideration, the CRC envisages that other considerations may be of relevance though the Committee on the Rights of the Child has noted that other policy considerations, such as those relating to migration control, can not override the best interests of the child

   [the Applicant’s]  best interests should therefore be taken into account regarding the impact of her parent’s circumstances on her application, none of which were within her control.  The consequence is that she is being denied her rights by Malaysia.

5. As discussed with the applicant’s mother and representative in person at the hearing held on 21 March 2019, the foregoing submission does not address the applicant’s prima facie constitutional status as a Malaysian citizen in any meaningful way.  Rather, the submission merely re-asserts earlier submissions that were made regarding the administrative difficulties experienced by the family when attempting to register the applicant’s birth in Australia. 

6. Accordingly, while the Tribunal accepts that the applicant has experienced difficulties in registering her birth with Malaysian authorities in Australia, the Tribunal nevertheless finds that the applicant (being a person born outside of Malaysia to Malaysian citizen parents), is prima facie a Malaysian citizen by virtue of Article 31 of Federal Constitution of Malaysia, in particular the Second Schedule at Part II s.1(b).

7. Having found that the applicant is a citizen of Malaysia, the Tribunal further finds that Malaysia is her receiving country for the purposes of the refugee and complementary protection assessment.  There is no evidence before the Tribunal to suggest the applicant has a right to enter and reside in any third country for the purposes of s.36(3) of the Act. 

   APPLICANT CLAIMS

8. In the letter to the applicant referred to above and dated 15 February 2019, the Tribunal wrote as follows:

   In light of the foregoing, the Tribunal requests a statement clarifying what your current claims for protection are (if any).  The Tribunal requests that this statement be provided to the Tribunal by 1 March 2019. Where this statement is made by one or both of your parents on your behalf, the Tribunal requests that it be made in the form of a Statutory Declaration.

9. In response to this request, the Tribunal did not receive a Statutory Declaration, but rather a statement, signed by the applicant’s mother and acknowledged by her in a subsequent hearing, written in the following terms:

   1.     I am stateless and dependent on my parent’s applications.  Should my parents’ review application to be successful in the Department of home affairs subsequently grants their visas, I will let out without a Visa.  I do not have the right of entry to Malaysian as I was born in Australia.  I will be submitting a letter from the Malaysian Consulate in Perth confirming my refusal of my passport application.

   2.     Polygamy is recognised in Malaysia.  My father’s understanding was that he did not think that his marriage in Malaysia is relevant to getting married in Australia.  My father did not know was not aware of the fact that his marriage would be deemed as invalid in Australia.

   Parents’ visa status

10. The Tribunal notes that in the first instance the applicant’s application for protection was stated to be reliant on the extended visa history of her father and his potential criminal liability in Malaysia as a bigamist, on the basis that he was married to a woman still alive in Malaysia when he married the applicant’s mother in Australia.

11. At the second hearing of this application on 24 October 2018, the Tribunal expressed concern that the applicant was being represented in this matter by her father.  The Tribunal’s concerns in this respect were based on the applicant’s father having a personal interest in the outcome of the applicant’s application for protection given that he was, separately, an applicant for protection in his own right, having applied for a visa of the same class as that of the applicant (being his daughter).  The Tribunal further expressed concerns that, as a self-acknowledged bigamist in Malaysia (and potentially in Australia), the credibility of his personal testimony was open to some question. 

12. Having raised the foregoing concerns directly with the applicant’s father, the Tribunal adjourned proceedings to allow the applicant’s parents to consider who might be best placed to represent the applicant in proceedings before the Tribunal.  Following this adjournment, it was decided between the applicant’s parents that the applicant would henceforth be represented in this application by her mother.  Having advised the applicant’s parents of its credibility concerns regarding further advocacy by the applicant’s father on behalf of the applicant, the Tribunal accepted their joint decision as to future advocacy and the Tribunal proceeded to hear the matter on this basis.

13. The Tribunal received no further submissions from the applicant’s father in connection with the applicant’s application for protection.

14. There is no information before the Tribunal to suggest that it is the intention of either the mother or the father of the applicant for the applicant to be separated from them at any time now or in the reasonably foreseeable future.  The Tribunal also notes the following provisions of s.36 of the Act (emphasis added):

    (2)  A criterion for a protection visa is that the applicant for the visa is:

    …

    (b)  a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)   is mentioned in paragraph (a) [refugee criterion]; and

    (ii)   holds a protection visa of the same class as that applied for by the applicant; or

    (c)  a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)   is mentioned in paragraph (aa) [complementary protection criterion]; and

    (ii)   holds a protection visa of the same class as that applied for by the applicant.

15. Accordingly the Tribunal finds that there is nothing before it to suggest that the applicant would be separated from her parents as a necessary or foreseeable outcome of any of their visa applications in Australia.  Given that all persons in question are members of the same family unit and all members are currently applicants for review seeking a visa of the same subclass as the applicant, if any of the family members who are currently applying for a valid Australian visa are successful, the applicant can reasonably be expected to remain in Australia with them.  Should all of the family members be unsuccessful in their applications for a valid Australian visa, there is no information before the Tribunal to suggest that the necessary and foreseeable consequence of such an outcome would be that the applicant would be left alone.

16. As per the Tribunal’s findings above, the Tribunal does not accept the applicant is stateless and indeed has found for the purposes of this application that the applicant is, prima facie, a Malaysian citizen.

17. Accordingly the Tribunal finds that the applicant does not hold a well-founded fear of persecution in Malaysia now, or in the reasonably foreseeable future for the essential and significant reason of her parents’ visa status in Australia.

    Parents’ marital status and consequent applicant ‘illegitimacy’

18. So far as it can be determined, the Tribunal notes the applicant claims to hold a well-founded fear of persecution in Malaysia now or in the reasonably foreseeable future for the essential and significant reason of the parents’ marital status.

19. The Tribunal notes that bigamy is contrary to Malaysian law, as it is in fact contrary to Australian law.

20. The Tribunal wrote to the applicant on 19 February 2019 pursuant to s.424A of the Act and invited the applicant to respond in writing to certain information:

    The particulars of the information are:

    ·     At a previous hearing of the Tribunal, your biological father was warned about the difficulties presented by his role as your primary advocate, given his acknowledged liability to allegations of bigamy.  At that point, it was determined that your biological Mother should be your primary advocate for the purposes of your application.

    In addition to the Country Information surveyed in the delegate’s decision record refusing your original application for protection, the Tribunal draws your attention to the following information which is before the Tribunal:

    1.   In your application for protection and in subsequent submissions made by your representative, reference is made to the claims made by your father in a separate application for protection being the same as your claims for protection.  The Tribunal notes that a decision has been made by your biological parents not to include you as a secondary applicant in any either of their applications for protection.  Accordingly, it is not clear to what extent your own application for protection should properly be connected to the claims made separately by your biological parents

    2.   The Tribunal notes that your biological father has raised claims relating to his multiple marriages as they relate to the offence of bigamy in his application for protection.  The Tribunal also notes that your biological mother has subsequently raised claims relating to being in a polygamous marriage in her application for protection.  The Tribunal notes that these claims for protection by your biological parents are materially inconsistent on this point.  The acknowledgement of your biological father to have mistakenly married your biological mother while having a living married spouse appears to be inconsistent with the implied claim by your biological mother that his subsequent marriage to her was made with the type of knowledge and consent of all the parties that would constitute a polygamous marital arrangement.  Accordingly, the apparently inconsistent claims of your biological parents raises the possibility that one or both of your biological parents has made applications for protection on grounds that they do not genuinely hold to be true.

    The foregoing information is information, which if accepted, would be the reason or a part of the reason, for affirming the decision that is under review. This is because your claims for protection expressly rely on the circumstances surrounding the Australian status of your Malaysian citizen parents’ relationship. The foregoing information suggests that those claims to hold a well-founded fear of persecution may not be genuinely held by either or both of them.

21. At a hearing on this application, the Tribunal addressed these questions directly to the applicant’s mother in her capacity as the applicant’s advocate. 

22. The applicant’s mother gave sworn evidence that, at the time that she and the applicant’s father married in Australia, she knew that the applicant’s father was still married to a woman living in Malaysia.  The applicant’s mother further gave sworn evidence at this hearing that the lawful living wife of the applicant’s father in Malaysia had no knowledge of the marriage in Australia of the applicant’s parents.  The Tribunal pointed out that this evidence contradicted the applicant’s mother’s own claims for protection made separately, but repeated in a statement to the Tribunal in relation to this application signed by the applicant’s mother to the effect that she was in a polygamous marriage for the purposes of Malaysian customary law.  The Tribunal pointed out that, on the basis of this evidence, it appeared that both of the applicant’s parents were potentially criminally liable for the offence of bigamy in both Malaysia and Australia.

23. At this point in the hearing the Tribunal advised the applicant’s mother that her evidence at the hearing was illogical, inconsistent, and her declaration made repeatedly and in numerous contexts that she was in a polygamous relationship for the purposes of Malaysian customary law was of late invention and therefore lacked credibility. The Tribunal invited the applicant’s representative at this hearing to make further submissions on this matter before the hearing was adjourned.  The applicant’s representative was given until 5 April 2019 to provide further written submissions.

24. On 25 March 2019, the Tribunal wrote to the applicant pursuant to s.424A inviting her to respond to certain information:

    2.     The Tribunal notes that at the hearing with the Tribunal on 21 March 2019, sworn evidence given by your mother suggested that she knowingly entered into a bigamous relationship in Australia, contrary to both Australian and Malaysian law.  This evidence is not consistent with information the Tribunal provided to you on 19 February 2019 regarding the claims for protection made recently by your mother to be party to a polygamous relationship in Malaysia.  This inconsistency was put to your mother and your Representative in person at the hearing with the Tribunal on 21 March 2019, and to date, no satisfactory explanation for this inconsistency has been received.  For reasons related to this matter, as put to your Representative and your mother at that hearing, the Tribunal has difficulty in giving any weight to the evidence given by your mother in support of your own claims for protection.

    3.     Country information was put to your Representative at the hearing with the Tribunal on 21 March 2019 suggests that as many as 10% of all registered births in Malaysia may be registered as “illegitimate” to use the terminology employed in that country for children born outside of wedlock.  Attached to this letter, please find an extract of the relevant source for this proposition.  Accordingly, while having one’s birth registered in Malaysia as “illegitimate” may result in a degree of societal discrimination in that country, there is currently no evidence before the Tribunal to suggest that such discrimination rises to the level of Persecution for the purposes of a Protection visa in Australia.

    The foregoing information is information, which if accepted, would be the reason or a part of the reason, for affirming the decision that is under review.  This is because your claims for protection rely substantially on claims made by you relating to your citizenship status; derivatively on claims made separately by your Parents in their own applications for protection; and; the treatment of children born out of wedlock in Malaysia.  The foregoing information suggests that these claims may not be genuinely well-founded.

25. On 5 April 2019, the applicant’s representative responded to the foregoing information as follows:

    2. Inconsistencies of the parents claims

    We note the inconsistency in [the Applicant’s] mother’s account.  However, for the purposes of [the Applicant’s] application, the fact remains that she is an illegitimate child.   [The Applicant’s] parents do not have a registered marriage in Malaysia and she would be denied her right to birth registration on this basis.

    3. Country information

    The extract of the country information attached to the invitation appears that it may not be applicable to [the Applicant], as she was born outside of Malaysia, and the 10% statistic specifically refers to children born in Malaysia.  Additionally, the extract does not discuss refusal of registration, and may not be relevant to such circumstances.

    Furthermore, it should be noted that the extract focuses on unwed young mothers.  However, [the Applicant’s] illegitimacy arose on a different basis, of her father having one registered marriage in Malaysia and one in Australia.  The email we have provided regarding [the Applicant’s] sister [states] that registration is impossible in the children’s circumstances ‘even with registration under [name deleted] (Child’s mother)’.

26. The Tribunal notes the re-assertion of the representative’s previous submissions relating to the difficulties associated with registering the birth of the applicant while in Australia.  However, there is nothing before the Tribunal to suggest that the applicant would be unable to obtain a Malaysian birth registration in Malaysia.  Indeed, the Tribunal notes country information advice indicating that:[17]

    … no information was found to indicate that a birth certificate validly issued in Australia, as in this case, would not be an acceptable document for the purposes of establishing that the applicant is the child of his Malaysian citizen parents.

    [17]RRT Country Advice 2013, Country Advice MYS42194, 8 May 2013, p4.

1. The Tribunal finds, therefore, that while the applicant’s birth status may be regarded for legal purposes within Malaysia as being “illegitimate”, there is no reasonable basis for believing that her birth cannot be registered in Malaysia.

2. Indeed, this point was raised directly with the mother of the applicant at the applicant’s hearing with the Tribunal on 16 May 2019.  The Tribunal noted that, while the applicant’s older sister [was] born in Malaysia to the same parents following their apparently bigamous marriage in Australia, her birth was registered by Malaysian authorities in that country.  The applicant’s older sister was subsequently able to obtain a Malaysian passport and has travelled between Malaysia and Australia on four previous occasions. This raises the presumption that it is possible for other children of the relationship to obtain birth registration in that country.

3. At this final hearing, the Tribunal addressed the fresh claims introduced by the applicant’s mother that the applicant would face persecution in Malaysia due to being the child of a single mother.  The Tribunal asked the applicant’s mother if she had any intention of leaving her husband, the child’s father.  The applicant’s mother stated that she did not.  On the basis that the applicant’s parents have been and remain mutually committed to each other and to the children of their relationship and do not express any intention of separation, the Tribunal finds that there is no evidence to support the late claim that the applicant would face persecution in Malaysia now or in the reasonably foreseeable future for the essential and significant reason of being the child of a single mother.

4. With respect to the applicant’s residual claims relating to the legal consequences of illegitimacy in Malaysia, the country information provided to the applicant in writing on 25 March 2019 (and referred to above) supports the proposition that while having one’s birth registered in Malaysia as “illegitimate” may result in a degree of societal discrimination in that country, there is currently no evidence before the Tribunal to suggest that such discrimination rises to the level of Persecution for the purposes of a Protection visa in Australia.  The Tribunal notes that the submissions in response made on the applicant’s behalf by her representative does not meaningfully engage with this point.  Instead, the applicant’s representative links the underlying issue back to the registration of birth issue addressed by the Tribunal above.

5. Neither does the Tribunal appreciate what distinction of significance there might be to be drawn between Malaysian citizens who are born with an “illegitimate” birth status for legal purposes depending on whether they are born in Malaysia or outside of Malaysia.  The applicant’s representative makes this point without adducing any relevant evidence to suggest that such a distinction is legally or socially distinguishing for the purposes of assessing either the real chance of serious harm or the real risk of significant harm to the applicant in Malaysia now, or in the reasonably foreseeable future. 

6. Accordingly, on the basis of the foregoing country information the Tribunal accepts that the circumstances of the applicant’s birth might reasonably be described as being administratively inconvenient and may even lead to a certain amount of societal and official discrimination in Malaysia.  However, the Tribunal finds that there is nothing to suggest that such inconvenience or discrimination would rise to the level of either serious harm to the applicant under s.36(2)(a) (the refugee criterion) or significant harm s.36(2)(aa), now or in the reasonably foreseeable future if the applicant was returned to Malaysia.

7. Accordingly the Tribunal finds that the applicant does not hold a well-founded fear of persecution in Malaysia now, or in the reasonably foreseeable future for the essential and significant reason of her parents’ marital status and her consequent illegitimacy.

   Parents marital status under the bigamy laws of Australia and Malaysia

8. Both the applicant’s parents have given sworn evidence to this Tribunal that they knowingly and voluntarily entered into an Australian marriage which, for the applicant’s father, was bigamous.  The applicant’s mother has given misleading sworn statements about the nature of this marriage to the Tribunal.  At hearings with the Tribunal and within her own claims for protection, the applicant’s mother claims that she is or would be perceived to be in a polygamous relationship with the applicant’s father.  The Tribunal rejects this assertion on the part of the applicant’s mother for two reasons.  These are firstly logical and, second, customary.

9. A polygamous marital relationship is one which is knowingly entered into with the mutual consent of all the marital parties.  That is not what the applicant’s parents have suggested has occurred.  The applicant’s father’s pre-existing marital relationship in Malaysia did not in any sense expand to include the applicant’s mother by consent of the marital participants.  Rather, as the applicant’s mother has sworn before this Tribunal, the applicant’s father and his lawful wife separated for some years before the applicant’s mother met the applicant’s father.  She married the applicant’s father in Australia in full knowledge of his existing marital status but without the knowledge and consent of the lawful wife of the applicant’s father and before those two persons was lawfully divorced.  In common parlance, therefore, the applicant’s mother was knowingly involved and participant in a marriage in Australia which contravened the anti-bigamy laws of both countries.  These circumstances are capable of multiple adjectives, but polygamy is not one of those adjectives. 

10. The cultural phenomenon of polygamy within the Malaysian federation is adequately summarised in the delegates record of decision in the first instance, but it is unnecessary for the Tribunal to go as far as to survey this in the present review, given that the Tribunal finds, on the basis of the foregoing evidence, that this claim by the applicant’s mother is not credible.

11. The Tribunal notes that the bigamy laws in both Australia and Malaysia are laws of general application.  It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of refugee assessment, for the reason that enforcement of such a law does not ordinarily constitute discrimination.  As Brennan CJ stated in Applicant A:

    … the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories.  This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application.  Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.

12. Consistently with Australian law, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) states:

    56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice.

13. The Tribunal does not accept that the bigamy laws of either Australia or Malaysia are, in the relevant sense, either discriminatory or persecutory.  Accordingly, the marital status of the applicant’s parents as a consequence of the bigamy laws of both Australia and Malaysia does not form the basis of an objectively well-founded fear of persecution of the applicant in Malaysia now or in the reasonably foreseeable future.

14. Similarly, as there is nothing before the Tribunal to suggest that the lawful sanctions inherent in or incidental to the bigamy laws of Malaysia are inherently “inconsistent with the Articles of the Covenant” for the purposes of the assessment at s.36(2)(aa) of the Act.

    Returnees

15. The Tribunal has had regard to the DFAT country information report on Malaysia, dated 19 April 2018.  In particular, the Tribunal notes that this publication provides, at [5.22], as follows:

    Many thousands of Malaysians enter and leave the country every day.  People who return to Malaysia after several years absence are unlikely to face adverse attention when they return on account of their absence.  Authorities pay little attention to Malaysians who over-stay their work or tourist visas or breach visa conditions in other countries upon their return to Malaysia.  Likewise, failed asylum seekers would be unlikey to face adverse attention as the Malaysian Government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed, particularly if their passport has expired while abroad.

16. The Tribunal accepts that the applicant has experienced administrative difficulties in obtaining a valid Malaysian travel document in Australia.  However, given that the applicant can be issued a travel document to return to Malaysia with her parents and noting the finding above that the applicant is prima facie a Malaysian citizen by decent under the Federal Constitution of that country, the Tribunal therefore finds that any related administrative complications arising in this respect when in Malaysia, would not rise to the level of persecution for the essential and significant reason of her arrival in that country.

17. The Tribunal also notes the foregoing country information which states that; “Authorities pay little attention to Malaysians who over-stay their work or tourist visas or breach visa conditions in other countries upon their return to Malaysia”; and, “it is possible that some individuals might be questioned upon entry or have their entry delayed, particularly if their passport has expired while abroad.”  This suggests that the visa history of the applicant’s father may result in the applicant’s father experiencing some administrative complications on his return to that Country.  However, the Tribunal does not accept that such administrative complications (assuming that the applicant’s father experienced such complications on return) would, for this applicant, rise to the level of serious harm for the purposes of s.36(2)(a) of the Act or significant harm for the purposes of s.36(2)(aa) of the Act.

18. As the child of Malaysian citizens entering Malaysia for the first time, it is acknowledged, however, that the applicant may experience administrative complications in registering her birth in that country on arrival.  However, there is no evidence before the Tribunal to suggest that the applicant would face discrimination amounting to persecution for the purposes of the refugee assessment at s.36(2)(a) of the Act for the essential and significant reason of her arrival in that country.

19. Accordingly the Tribunal finds that the applicant does not hold a well-founded fear of persecution in Malaysia now, or in the reasonably foreseeable future for the essential and significant reason of her arrival in Malaysia for the purposes of s.36(2)(a) of the Act.

20. Further, the Tribunal is satisfied from the available evidence and country information discussed above that the applicant does not face a real risk of significant harm if she is returned to Malaysia now, or in the reasonably foreseeable future from any person or agent of harm for the purposes of s.36(2)(aa) of the Act. 

    Summary

21. The Tribunal has carefully considered each of the integers of the applicant’s claims for protection individually and has found that none of these give rise to an objectively well-founded fear of persecution in Malaysia now, or in the reasonably foreseeable future for the purposes of either the refugee assessment at s.36(2)(a) or, in the alternative, the complementary protection assessment at s.36(2)(aa) of the Act.

22. For the reasons discussed above, the Tribunal is satisfied that there is less than a real risk of significant harm to the applicant if she was removed from Australia to the receiving country, such that Australia’s non-refoulement obligations would be engaged.  The Tribunal is, therefore, not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. 

23. The Tribunal notes that s.36(2)(aa) of the Act refers to a real risk of the applicant suffering significant harm.  The Tribunal notes that the real risk test imposes the same standard as that adopted in the real chance test for the purposes of assessing a well-founded fear.  Having concluded the applicant does not meet the refugee criterion, the Tribunal has considered the alternative criterion.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

24. There is no suggestion the applicant is a member of the same family unit as a person who meets either of these criteria.  Accordingly, the applicant does not satisfy the criteria in s.36(2) of the Act. 

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Dr Colin Huntly
    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.

    …