1701647 (Refugee)

1701647 (Refugee) [2017] AATA 3029 (15 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701647
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Paul Windsor
DATE:15 December 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 December 2017 at 4:07pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Victims of criminal gangs – Threats of physical violence – Protection money – Internal relocation – Effective protection measures

LEGISLATION
Migration Act 1958, ss 5(1), 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES
Kopalapillai v MIMA (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
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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] January 2017 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] October 2016. The delegate refused to grant the visa on the basis that the applicant had not claimed to fear harm, and there is no information before the delegate to suggest, the applicant would be targeted on their return to Malaysia for one or more of the reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion, the delegate, noting relevant country information regarding police operations against gangs in Malaysia; law enforcement in Malaysia; corruption; and the judicial system, found that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that he would suffer significant harm.
The applicant applied to the Tribunal for review of this decision on 31 January 2017. The applicant provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 13 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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
In his Protection visa application[1] the applicant claims to be a citizen of Malaysia who was born in Johor in Johor state Malaysia on [date]. He did not state his ethnicity or religion. He indicated that he speaks, reads and writes Malay and speaks English. He indicated he has never married or been in a de facto relationship. He did not provide any details of his education, employment history or previous addresses outside of Australia. He did not provide details of his departure from Malaysia and arrival in Australia.
[1] See folios 75-90 of Departmental file [Number].
Claims from the Protection visa application
The applicant’s claims as set out in Part C of his Protection visa application[2] are summarised as follows:
·He left Malaysia as he has received many threats. He fears for his life. He thinks he may be harmed by ‘group of gang’.
·He has not experienced any harm in Malaysia.
[2] See folios 79-83 of Departmental file [Number]
Evidence from the hearing of 13 December 2017
At the start of the hearing when asked if he could confirm that everything in his Protection visa application was true and correct as far as he knew and believed, the applicant replied ‘maybe’. When asked why this was the case, he said initially he went to a layer/migration agent and told this person about his problems and that he wanted to apply for a visa but he does not know what was written down. He indicated he paid about AUD2,000 for the application. When queried he said he did not ask this person to read back to him what he had written and was simply told to wait for a call. He indicated that he did not continue to use this agent when his application was refused.
The applicant indicated that he was born in Johor Bahru and that he grew up and lived there. He indicated that he completed his ‘SPM’ (to Year 11 of schooling). He said he was self-employed in Malaysia, helping someone in their businesses selling [products]. He said he did that for 4-5 years.
The applicant indicated he just has his father and [a sibling] in Malaysia and that they live in Johor too. He said his [sibling] is married and his father is retired and stays at home. He said his father also was a self-employed trader previously.
The applicant indicated that he came to Australia three years ago and that he came by himself. He said he came to Australia to run from a gang that was threatening him. He said that before he came to Australia he joined an organisation called [Group 1]. He indicated this is a group that will back you up if you have problems and back you up if you are in trouble. When queried he said he joined the group because where he lived in Malaysia as a youngster there were gangsters around so you needed these people around as backup in case of trouble.
The Tribunal asked the applicant what the group does. He said from the outside they are viewed as a charitable organisation helping people in need but from within they are actually gangsters. When asked why they are viewed as a charitable organisation, the applicant replied that when he joined them he saw they were helping the poor, giving food to homeless people. When queried that he had said he joined them because they provided backup if he got in trouble he said it is like that and they also do charity and he joined them in their charitable activities.
When asked why he came to Australia he said that when he initially joined [Group 1] he was not aware of their illegal activities. He said to join they demanded protection money be paid monthly and indicated that he did this regularly. He said there were various ranks within the groups: some are called ‘father’, some ‘brother’ and there are various other designations. He said he paid his monthly contribution until such time as he came to know a ‘brother’ called [Mr A] who told him he had to increase his monthly contribution. He said he refused to do that and wanted to leave the group, but he wasn’t able to. He said [Mr A] considered that he was in debt to them. When asked why that was the case, the applicant replied he did not know but that is what this person ([Mr A]) said. When asked if they had done anything for him the applicant said they had not but he was threatened that if he did not pay they would beat him up.
When asked what happened after that the applicant said he did not pay but ran away from them. When asked where he ran away to he said to Australia.
The Tribunal asked the applicant how he has been supporting himself in Australia. He said sometimes he looks for work through [social media] and that he [does one specified job] and does various odd jobs.
The Tribunal also spoke with the applicant regarding the country information referred to in the delegate’s decision record (which he had provided to the Tribunal) regarding the Royal Malaysian Police; police operations against gangs in Malaysia; and the Malaysian judicial system. The Tribunal commented that the delegate had concluded that she was satisfied that the Malaysian authorities could provide protection to the applicant such that there would not be a real risk that he would suffer significant harm from gangs if he returned to Malaysia. The applicant indicated that he had not looked at the decision record or had it explained to him. When asked if he had any comments to make regarding the delegate’s finding that he could obtain protection such that there is not a real risk that he would suffer significant harm if he returned to Malaysia he said ‘no’ but then commented that when he joined the group he was given a sticker to put on his car which would allow him to go through any police roadblocks without problems. He indicated that the police take bribes and that the police and the gang members are ‘like buddies’. The applicant asked that he be able to remain in Australia for a considerable amount of time to enable the gangs to forget about him.
Findings and reasons
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
On the basis of the copy of the applicant’s Malaysian passport provided to the Department[3], the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as he claims it to be. The Tribunal accepts that Malaysia is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Credibility
[3] See folio 109 of Departmental file [Number].
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…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.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not 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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
Assessment of claims
The Tribunal finds that the applicant is not a credible witness. The delegate’s decision record, a copy of which was provided to the Tribunal by the applicant, indicates that the applicant first sought to lodge a Protection visa application [in] May 2016, nearly 20 months after he arrived in Australia [in] September 2014 and nearly 17 months after his [temporary] visa ceased and he became unlawful in Australia. The first Protection visa application he sought to lodge was deemed to be invalid [in] September 2016 and a second (valid) application was lodged [in] October 2016. Despite this delay and the earlier invalid application, the applicant’s Protection visa application contained very little information and no detail regarding his claims. As noted above, when asked at the hearing if the content of the applicant was true and correct, the applicant replied ‘maybe’, and indicated that he did not know what his previous migration agent had put in the application and that he had ceased to use this agent because he thought the agent had cheated him. However, at the hearing the applicant indicated that he had not looked at the delegates’ decision record or had it explained to him. He also did not seek to make any submissions to the Tribunal when he lodged his review application or before the hearing to address the delegate’s findings and/or any shortcomings in his claims as set out in his application. As discussed below, the Tribunal found that the applicant’s evidence at the hearing introduced matters that had not been raised in the Protection visa application, and was vague, inconsistent and generally unconvincing.
The key issues raised at the hearing were that the applicant claimed to have become a member of a group called [Group 1] which he claimed was a gangster group. He claimed he had to pay monthly protection money to this group and when he refused a demand to pay a higher amount and sought to leave the group, he was threatened that if he failed to pay he would be beaten-up. He claimed he managed to avoid these people by going from Johor state to Klang and Shah Alam in Selangor state for seven months before he came to Australia.
The applicant did not mention the [Group 1] group at all in his application let alone that he joined them and paid protection money or that they threatened him because he sought to leave when he was asked to pay a higher amount of protection money. He also did not indicate that he sought to relocate within Malaysia to avoid this group. When these matters where put to the applicant for comment he indicated that he trusted his migration agent, whom he said he paid AUD2,000 to prepare his application, but was cheated. As discussed with the applicant at the hearing, given the long delay in him making a valid protection visa application, including a lengthy period where he was in Australia unlawfully, the Tribunal considers that if he faced genuine threats to his safety from a gang should he be returned to Malaysia, he would be highly motivated to ensure that his Protection visa application was comprehensive and accurate, rather than contain the scant information provided. The applicant indicated that he was cheated and that he ceased using this agent. He indicated, however, that he did not seek to check the information in the application. Given the applicant signed the application (the signature matches the signature on his passport), the Tribunal considers that he could have readily seen that it contained almost no information and no detail regarding his claims.
The Tribunal also found the applicant’s comments at the hearing regarding why he allegedly joined [Group 1] to be inconsistent, contradictory and unconvincing. Initially he said he joined because where he lived in Malaysia there were gangsters around so you needed these people as backup in case of trouble. He commented that this group will back you up if you have problems and help you out if you are in trouble. However, when asked what they do he indicated that from the outside they are viewed as a charitable organisation helping people in need but from within they are actually gangsters. He said that when he joined them he saw they were helping the poor and giving food to homeless people. When queried that he had said he joined them because they provided backup if he got in trouble, he said it is like that and they also do charity and he joined them in their charitable activities. He subsequently commented that when he joined them he was not aware of their illegal activities. The Tribunal does not accept this. Initially the applicant clearly claimed that his motivation for joining the group was for protection in the event of trouble from gangs. The Tribunal considers that this indicates that he viewed this organisation as an extrajudicial group that could confront gangs, that is, as involved in illegal activities. He made no mention of joining them because he saw they were involved in charitable activities and/or because he was motivated by a desire to assist in any charity activities.

The Tribunal also found the applicant’s evidence in relation to being threatened that he would be beaten and therefore coming to Australia to be vague, inconsistent and unconvincing. As noted above, when the Tribunal asked the applicant what happened when he refused to pay a higher amount of monthly protection money he said he did not pay but ran away from them. When asked where he ran away to he said to Australia. It was not until the Tribunal queried the applicant that he had said that the incident where he claimed he was threatened that he would be beaten-up if he did not pay a higher monthly amount of protection money and sought to leave the group happened about seven months before he came to Australia that he said he tried to live in various parts of Malaysia and that he moved around. When asked where he tried to live he said he went Klang and to Shah Alam (in Selangor state). The Tribunal queried the applicant that earlier in the hearing he had indicated that he grew up and lived in Johor state. He replied that he did not stay in those places for a long time so did not regard that as being permanent. The Tribunal did not find this explanation convincing. The applicant’s initial response was that he came to Australia in response to the claimed threats. He did not indicate either in his application or at the hearing that he was ever actually harmed or that he sought to relocate to other areas of Malaysia to avoid harm. The Tribunal finds that the applicant invented the claim to have tried to live in Klang and Shah Alam and to have moved around in response to the Tribunal pointing out the inconsistency in his account.
At the hearing the Tribunal discussed with the applicant that the copy of the delegate’s decision record that he had provided to the Tribunal indicates that his [temporary] visa ceased three months after he arrived in Australia [in] September 2014 and he became unlawful in Australia but he did not seek to apply for a Protection visa until [May] 2016. The Tribunal put to the applicant that the initial application was deemed to be invalid, and when he made a valid application in October 2016, there was very little information in it. The Tribunal commented that there was no mention of the [Group 1] organisation; or that this organisation comprised ‘brothers’ and ‘fathers’; or that he had to pay protection money; or that he came to know a ‘brother’ named [Mr A] who demanded he pay a higher contribution. The Tribunal put to the applicant that these omissions and the delay in him applying for a Protection visa causes the Tribunal to have concerns regarding the genuineness of his evidence at the hearing and may cause the Tribunal to find that he not a credible witness. The applicant commented that he did not give much detail to the migration agency because they merely asked him to pay and said they would arrange everything. He said it took time for him to submit an application because to that point he hadn’t been able to find a migration agent like this. As discussed with the applicant, the Tribunal considers that if the applicant fled Malaysia because he was fearful for his safety there, it seems reasonable to expect that he would be highly motivated to find out how he could remain in Australia legally. The Tribunal put to the applicant that in such circumstances he might have talked with people in the large Malaysian community in Australia, or organisations that provide assistance to people seeking protection in Australia, or looked on the internet, including on the Department of Immigration and Border Protection website which provides information regarding visa options, including Protection visas. The Tribunal indicated to the applicant that he would have found out that he could have applied for a Protection visa for $35, rather than becoming unlawful. The Tribunal also put to the applicant that after such a long delay in making an application, the Tribunal would expect the applicant would be highly motivated to ensure the application captured his full story comprehensively and accurately rather than include the scant information that was actually provided, particularly given he indicated he paid AUD2000 for the service. The applicant replied that at first he knew nothing, thought he could come here to live and would be safe because they could not find him. When queried why he thought he could remain in Australia given he came on [a temporary] visa valid for a stay of only 3 months, he replied that at first he was planning to apply, but many people told him they had been cheated so it took time to find the right agent, but this one cheated him too. He said that at first he trusted the lawyer and when he told him his story he said it would be okay but when the application was refused the agent demanded a further AUD3,000 so he stopped using him as it became clear the agent had cheated him. While the Tribunal accepts that the applicant has been poorly served by the migration agent he used, the Tribunal finds that the applicant was in part complicit in this given the delays in him making an application and his failure to undertake any measures to ensure that the application contained any material of substance. Given the poor quality of the totality of the applicant’s evidence, the Tribunal concludes that the delay in the applicant making a Protection visa application and the poor quality of the application reflects the fact that he has concocted his claims and does not have any genuine claims.
Considering cumulatively the vague, poor quality, inconsistent and unconvincing nature of the applicant’s evidence, as discussed above, the Tribunal concludes that the applicant has concocted his claims. The Tribunal finds that the applicant did not join an organisation called [Group 1]. The Tribunal finds that the applicant was not threatened by a ‘brother’ of this organisation called [Mr A] that he would be beaten-up or otherwise harmed if he did not pay protection money or a larger amount of protection money to this organisation. The Tribunal finds that the applicant did not try to relocate to Klang or Shah Alam in Selangor state to avoid this group. The Tribunal concludes that the applicant was not given a car sticker by [Group 1] which would allow him to go through any police roadblocks. The Tribunal concludes therefore, that the applicant does not face a real chance of serious harm or a real risk of significant harm from a ‘brother’ of [Group 1] called [Mr A], or any other members of this organisation or their agents, for any reason, should he return to Malaysia now or in the foreseeable future.
As the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from a ‘brother’ of [Group 1] called [Mr A], or any other members of this organisation or their agents should he return to Malaysia in the foreseeable future, the Tribunal does not consider that the applicant would require the protection of the Malaysia authorities.
Conclusions
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). Having regard to the findings of fact set out above, the Tribunal also is not satisfied that there is a real risk that the applicant would suffer significant harm from a ‘brother’ of [Group 1] called [Mr A], or any other members of this organisation or their agents, or anyone else, for any reason, as a necessary and foreseeable consequence of being removed from Australia to Malaysia. It follows therefore that 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.
Paul Windsor
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 3029

15 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction