1701870 (Refugee)

1701870 (Refugee) [2019] AATA 5832 (17 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701870
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Joseph Lindsay
DATE:17 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 May 2019 at 1:13pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – sexual harassment – adopted brother – inappropriate sexual advances – former boyfriend – blackmail for sex – parents may force applicant into arranged marriage – effective state protection – Royal Malaysia Police – adverse comments made about applicant's character – emotional pain of being separated from current partner – threats of self-harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 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 on 2 August 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. 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) of the Act. 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) of the Act, 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 of the Act, 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 (the Department) – 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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Protection claims
The applicant’s handwritten claims contained her 866 Form stated as follows:
Q89: I am seeking protection in Australia so that I do not have to return to:
A. Malaysia.
Q90: Why did you leave that country?
A. I’m seeking protection from Australian government is because of I’ve been thru a lot of sexual harassment from my adopted brother in family. But, my parents do not believe what I have told them. Because they really trust him and he is the only son in the family and have a good looks. I’ve tried to convince my parents but they assume that I’m just making stories because of the jealousy. Due to can’t cope with the harassment I’ve been thru, I’m deciding to run to Australia.
Q91: What do you think will happen to you if you return to that country(s)?
A. I’m scared that I will face the same harassment I’ve been thru before.
Q92: Did you experience harm in that country(s)?
A. Yes. I will face the same harassment from my adopted brother and my parents harm me because of I’m running away.
Q93: Did you seek help within the country(s) after the harm?
A. No. I’m tried to convince my parents but, they never tale serious of this matter.
Q94: Did you move or try to move to another part of that country(s) to seek safety?
A. No. Because if I’m running to other part country, my family still can find me.
Q95: Do you think you will be harmed or mistreated if you return to that country(s)?
A. Yes. I will face the same harassment from my adopted brother and my parents harm me because of that I’m running away.
Q96: Do you think the authorities of that country(s) can and will protect you if you go back?
A. No. Because is family issue, the authorities would not interrupt.
Q97. Do you think you will be able to relocate within that country(s)?
A. No. Because if I’m running to other part country, my family still can find me.
The applicant provided no other documentary information in support of her application to the Department.
On 11 January 2017, the delegate decided not to grant the applicant protection.
The Hearing
At the hearing on 15 February 2018, the Tribunal spoke to the applicant. The applicant was not represented. The applicant was assisted by an interpreter.
The applicant told the Tribunal she had experienced ‘sexual torture’ in Malaysia.
When asked for further detail, the applicant indicated, in summary, that her adopted brother behaved inappropriately towards her and, as well, her former boyfriend pressured her to have sex with her.
In respect to her adopted brother, the applicant said he was her grandmother’s sister’s grandson, whose parents divorced when he was about [age] years old. The applicant said:
·her parents thought it might be nice to have a boy in the house so they took him in.
·her adopted brother’s mother had formed a relationship with someone else and so his grandparents looked after him and then he came to live with the applicant and her sister when he was [age].
·at the time her adopted brother came to live with her she was [age] years old.
·when her adopted brother was [age] or [age] years old he started ‘being funny’ to her.
·her adopted brother’s name is [Mr A].
·she was [age] or [age] years old when [Mr A] began ‘being funny’ to her.
·when her parents went to work, and he was alone with her, he started to take ‘liberties’ with her.
·when she was studying form [number], she got pregnant to her boyfriend [Mr B] but she had an abortion.
·no-one but ‘a close friend knew’ about her getting pregnant to her boyfriend [Mr B] and having an abortion.
·[Mr A] told her that [Mr B] had been talking about her to everyone and bad mouthing her as ‘loose woman’ but that he, [Mr A], still wanted her.
·[Mr B]’s friend told [Mr A] about her getting pregnant to her boyfriend, [Mr B], and having an abortion.
·after the abortion she had tried to contact [Mr B] (but he had changed his phone) and then a year later she got a call from a new number of his.
·four or five months after the abortion, [Mr A] told her he knew she got pregnant to her boyfriend [Mr B] but she had an abortion.
·[Mr A] told the applicant he wanted her to sleep with him.
·[Mr A] was trying to use the information about the applicant getting pregnant to her boyfriend [Mr B] and having an abortion in order to blackmail the applicant into sleeping with him where he threatened to tell her parents – but she did not sleep with him.
·the applicant moved out of the family home and went to live with her aunt, where she stayed for about two or three years.
·[Mr B] contacted her and wanted to have a relationship with her again.
·she was still in love with [Mr B] but her parents did not like him.
·she moved back home with her mum and dad.
·[Mr B] would always demand money or sex from her or he would threaten to end relationship if she did not give it to him.
·[Mr B] had another girlfriend, who tortured the applicant by saying to her ‘you don’t really love him’ and she talked to the applicant like she was a slut.
·[Mr B] dumped the applicant and said ‘we can’t get married anyway - we are from different castes.’
·she told her mum that the adopted brother behaved inappropriately, but her mother didn’t believe her.
·fine to six months later she got a job in an office, but then she felt that everyone knew about her life story and questionable character.
·her boss found out and thought she was ‘easily available’.
·she then went to work for another company.
·her adopted brother continued his adverse behaviour toward her.
·her parents arranged for someone to propose marriage to her, but she did not want to marry that person because he wasn’t nice.
·she felt she wasn’t getting affection from anyone and, as a result, she hated herself.
·she never told anyone what [Mr A] did to her because it would be shameful and scandalous.
·she never went to the police because she ‘just didn’t.’
When asked what she thought would happen to her if she went back to Malaysia, she said she said she was afraid her parents would force an arranged marriage on her, and that she had fallen in love with someone in Australia and wanted to get married here.
When asked whether she sought help in Malaysia after the harm, she responded that she didn’t know about the (protection) visa, and overstayed but then a Malaysian boy in Australia wanted to sleep with her and was trying to blackmail her for sex saying that ‘if you don’t sleep with me it will be known that you are staying unlawfully here.’ The applicant confirmed that she had been blackmailed for sex when she was in Australia from another Malaysian person, but that she did not go to the police about that because she did not ‘know what one does’. When the Tribunal put to the applicant that she can go to police in Australia about that sort of behaviour she said ‘these people went away as well. I stayed in that contract house by myself without work or anything.’
When asked whether she moved to another part of Malaysia to seek safety, she responded that she never thought of that.
When asked whether she thought she will be harmed or mistreated if she returned to Malaysia, she responded that she came here the year before last, that she had met a man in Australia that she wanted to marry and she wanted to settle in Australia and if she went back to Malaysia she would not be able ‘to do that.’
When asked whether she thought that the Malaysian authorities can and will protect her if she went back to Malaysia, she responded that she can’t see any protection from anyone because her family have to accept her and that was important, and ‘this boy’ is there and he is not going to change, and expressed concern that she might be arranged to be married and whether that would work out.
When asked whether she thought that she will be able to relocate within Malaysia she responded ‘if they are determined to find me they can find me’ and ‘living alone will never be an easy thing for me as a girl.’ The applicant indicated she had had gone through enough bad relationships and associated fears.
When asked what she would do if she went back to Malaysia, the applicant said ‘I won’t go.’ When asked what she meant that she would not go, she said she wanted to get married in Australia and live in Australia. The applicant expressed her concern that she cannot go back to Malaysia to find ‘a new relationship or new husband or anything.’
When the Tribunal asked whether she could marry her new partner and then go back to Malaysia, she responded that she could not do that. The applicant again indicated that if she went back to Malaysia she would be by herself and under pressure to enter an arranged marriage, because he (her current boyfriend) was not willing to come with her right now because he ([Mr C]) wanted a protection visa as well and his application was with the Federal Court.
When asked whether there was anything else she wanted to say, the applicant said that she wanted to live in Australia and get married in Australia, because Australia was very peaceful and not like Malaysia where people are gossiping and badmouthing.
The applicant made clear that she was not currently subject to any sexual misconduct from anyone.
The Tribunal had a further hearing with the applicant on 16 May 2019. The applicant made clear that her claims had not changed and that she had no further claims. The Tribunal discussed the applicant’s claims and evidence she gave at the previous hearing, as detailed above, and she agreed that the Tribunal’s account of her claims and evidence was accurate and correct.
The Tribunal discussed the term ‘torture’ with the applicant and what her interpretation was of the term ‘torture’. In response, the applicant indicated that she interpreted [Mr A]’s actions of sexual harassment to her to constitute ‘torture’ and also [Mr B]’s actions to her, of taking her money and demanding sex, was also ‘torture.’ The Tribunal accepts that the applicant’s interpretation of both [Mr A]’s actions and [Mr B]’s action towards her were, in her mind, ‘torture.’
When asked why she did not go to the Malaysian police, she said that it was a family issue, she did not have any evidence and she didn’t know how to converse with the family about these issues.
The Tribunal asked about her claim that she would be forced to have an arranged marriage if she returned to Malaysia. Despite the passing of some 15 months since making this statement, she had not married her current partner in Australia because, she said, she did not know what was happening in regard to her visa. She indicated that she is still with her current partner, [Mr C]. He was not in attendance at the Tribunal because he had to go to work.
The Tribunal put to the applicant that at the last hearing she said she had been the subject of inappropriate sexual advances in Australia but did not go to the police. The applicant said that because she has her boyfriend now, there are no more problems.
The Tribunal spoke to the applicant about what she previously said would happen to her if she went back to Malaysia. She said she was afraid her parents would force an arranged marriage on her, and that she had fallen in love with someone in Australia and wanted to get married here. She agreed this was still the case.
The Tribunal spoke to the applicant about what she previously said when asked what she would do if she went back to Malaysia, and the applicant had responded, ‘I won’t go.’ She re-affirmed that she would not return to Malaysia.
The Tribunal spoke to the applicant about what she previously said when the Tribunal asked whether she could marry her new partner and then go back to Malaysia. She confirmed that her partner still wanted a protection visa, and so she would have to stay in Australia to be with him.
The Tribunal discussed with the applicant the relevant country information from the 2018 DFAT Country Information Report – Malaysia, that states:
Royal Malaysia Police (RMP)
5.5 The RMP employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs.
Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Police Integrity and Accountability). The RMP is 80 – 85 per cent Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
The Tribunal put to the applicant that it had to consider what assistance would be available to her in Malaysia and whether she would have reasonable access to effective protection. The Tribunal put to the applicant that the country information indicated that the RMP is a professional and effective police force, in spite of a number of difficulties. The Tribunal put to the applicant that it was open to her to go to the RMP to get their assistance to stop adverse behaviour. The Tribunal put to the applicant that even if she felt that she did not want to go to the RMP, the RMP was still there to be able to provide her assistance should she require it. In response, she said she can go to Malaysia, but after living ‘this kind of life’ in Australia, if she went back to Malaysia, and her family get her to marry another person, all the life she lived here in Australia would come to light in Malaysia – and she indicated she could not live like that.
The Tribunal put to the applicant that if someone was forcing her into an arranged marriage in Malaysia, country information indicated she could go to the RMP, and if someone was sexually harassing her she can go to the RMP – that appeared to be effective state protection. In response, she indicated she can go to the police, but she simply could not leave her current partner [Mr C], who is living in Australia.
The Tribunal asked the applicant how leaving her loved one in Australia and going back to Malaysia, as emotionally painful as that may be, amounted to serious harm and made her a refugee. In response, she indicated that she would not go back to Malaysia.
The Tribunal put to the applicant that the Tribunal also needed to consider complementary protection – which is a different test. The Tribunal explained the definition: whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. The Tribunal put to the applicant that it was considering what the capacity was of the RMP to help her, or someone like her, in her circumstances, and according to country information, the RMP can help her, and that the RMP is a professional and effective police force and she could access it if she so chose to. The Tribunal put to the applicant that whether it be inappropriate sexual advances from anybody in Malaysia, including [Mr A] and [Mr B] and her former boss, or whether it be her family trying to force her to marry someone, that she could go the RMP and request their help. The Tribunal put to the applicant that, because she had access to the RMP and the country information indicates the RMP will assist her if she asked them to, that may lead the Tribunal to decide that there is not a real risk of significant harm to her if she returned to Malaysia. In response she indicated that she could go to Malaysia, but then there would be this shame on her and people would talk about it in a disrespectful way and the shame would come on her – and she could not go to the police about all the incidents of talking. The Tribunal put to the applicant that she indicated that her biggest concern was that people would speak badly about her. In response she indicated that’s how life in Malaysia is. She indicated she could not go and face this situation. She indicated that she may consider suicide if she returned to Malaysia. She indicated she did not want to live in Malaysia with her old lifestyle. When asked where she would go and live, she said she would go to her parents. When asked why she would go to her parents, she said ‘who else is there.’ When asked why she could not live by herself, she indicated it was not possible for her to live alone after living such a ‘lovable’ lifestyle. She indicated it would be emotionally difficult for her to be separated from [Mr C].
ASSESSMENT OF EVIDENCE AND CLAIMS
Identity

The applicant [was] born on [date], and she is a citizen of Malaysia.
Receiving country
The Tribunal has found that the applicant is a citizen of Malaysia and accordingly, the Tribunal finds that Malaysia is her receiving country.
Protection in another country
The applicant has indicated that she does not have a current right to enter and reside in a country other than Malaysia. There is no information to suggest that the applicant has a right to enter and reside in another country other than Malaysia. The Tribunal finds that the applicant does not have a current right to enter and reside in a country other than Malaysia and, accordingly, the Tribunal finds that s.36(3) of the Act does not apply to the applicant.
Assessment of Evidence and Findings
In summary, the Tribunal makes the following findings.
The Tribunal accepts that the applicant gave consistent and credible information with respect to her claims. The Tribunal accepts:
·her parents thought it might be nice to have a boy in the house so they took him in.
·her adopted brother’s mother had formed a relationship with someone else and so his grandparents looked after him and then he came to live with the applicant and her sister when he was [age].
·at the time her adopted brother came to live with her she was [age] years old.
·when her adopted brother was [age] or [age] years old he started ‘being funny’ to her.
·her adopted brother’s name is [Mr A].
·she was [age] or [age] years old when [Mr A] began ‘being funny’ to her.
·when her parents went to work, and he was alone with her, he started to take ‘liberties’ with her.
·when she was studying form [number], she got pregnant to her boyfriend [Mr B] but she had an abortion.
·no-one but ‘a close friend knew’ about her getting pregnant to her boyfriend [Mr B] and having an abortion.
·[Mr A] told her that [Mr B] had been talking about her to everyone and bad mouthing her as ‘loose woman’ but that he, [Mr A], still wanted her.
·[Mr B]’s friend told [Mr A] about her getting pregnant to her boyfriend [Mr B] and having an abortion.
·after the abortion she had tried to contact [Mr B] (but he had changed his phone) and then a year later she got a call from a new number of his.
·four or five months after the abortion, [Mr A] told her he knew she got pregnant to her boyfriend [Mr B] but she had an abortion.
·[Mr A] told the applicant he wanted her to sleep with him.
·[Mr A] was trying to use the information about the applicant getting pregnant to her boyfriend [Mr B] and having an abortion in order to blackmail the applicant into sleeping with him where he threatened to tell her parents – but she did not sleep with him.
·the applicant moved out of the family home and went to live with her aunt, where she stayed for about two or three years.
·[Mr B] contacted her and wanted to have a relationship with her again.
·she was still in love with [Mr B] but her parents did not like him.
·she moved back home with her mum and dad.
·[Mr B] would always demand money or sex from her or he would threaten to end relationship if she did not give it to him.
·[Mr B] had another girlfriend, who tortured the applicant by saying to her ‘you don’t really love him’ and she talked to the applicant like she was a slut.
·[Mr B] dumped the applicant and said ‘we can’t get married anyway - we are from different castes.’
·she told her mum that the adopted brother behaved inappropriately, but her mother didn’t believe her.
·five to six months later she got a job in an office, but then she felt that everyone knew about her life story and questionable character.
·her boss found out and thought she was ‘easily available’.
·she then went to work for another company.
·her adopted brother continued his adverse behaviour toward her.
·her parents arranged for someone to propose marriage to her, but she did not want to marry that person because he wasn’t nice.
·she felt she wasn’t getting affection from anyone and, as a result, she hated herself.
·she never told anyone what [Mr A] did to her because it would be shameful and scandalous.
·she never went to the police because she ‘just didn’t.’
The applicant’s response that she would go back and live with her parents, the very people who she said would force her to marry someone, causes the Tribunal to find that the applicant does not have a genuine fear that her parents will actually force her to marry someone. Accordingly, the Tribunal does not accept if the applicant returned to Malaysia, her parents may try to marry her to someone else. The Tribunal accepts that she wants to stay with her current Malaysian partner (who is also seeking a protection visa) in Australia, and that separating from him would be emotionally painful for her. The Tribunal accepts that if she returned to Malaysia she would be concerned about adverse comments made about her character.
However, taking into account the country information, the Tribunal finds that effective protection from the RMP is available to the applicant. The applicant readily indicated she did not ask for assistance from the RMP. The Tribunal finds that effective protection from the RMP is available to the applicant on her return to Malaysia.
Refugee criterion assessment – s.36(2)(a)
The Tribunal considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act.
For the reasons given above, the Tribunal finds that:
a.the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b.the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to Malaysia, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c.the Tribunal is not satisfied there is a real chance of persecution that relates to all areas of Malaysia;
d.the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;
e.the Tribunal is not satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act;
f.the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.
Complementary Protection Criterion Assessment – s.36(2)(aa)
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding, but the decision maker is not required to make the applicant's case for him or her. Nor is Tribunal required to accept uncritically any and all the allegations made by an applicant.
In respect of the Tribunal’s consideration as to whether complementary protection applies to the applicant, the Tribunal accepts the findings above. As indicated above, the Tribunal discussed complementary protection with the applicant. In consideration of the applicant’s evidence and country information, the applicant made clear to the Tribunal that the most significant concern for her was not that she would be forced to marry someone or that she would be sexually harassed. The applicant made clear to the Tribunal that her biggest concern was the emotional pain of being separated from her current partner and people talking about her disrespectfully – and in any event she would not go to the RMP for assistance. The applicant’s response that she would go back and live with her parents, the very people who she said would force her to marry someone, causes the Tribunal to find that the applicant does not have a genuine fear that her parents will actually force her to marry someone. Accordingly, the Tribunal find that there is not a real risk that the applicant will suffer significant harm if she returned to Malaysia.
For the reasons set out above, the Tribunal finds that it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm, including that the applicant will suffer harm by way of being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment, as required by s.36(2)(aa).
Threats of self-harm
The Tribunal notes that during the hearing the applicant indicated that she may harm herself if she went back to Malaysia.
It does not appear that s.36(2)(aa) is intended to include harm inflicted by a person upon themselves. The descriptions of the types of significant harm in s.36(2A) are passively worded, referring to the non-citizen being arbitrarily deprived of his or her life, the death penalty being carried out on the non-citizen, and harm that the non-citizen will be subjected to. Each of these phrases suggests harm being inflicted by a third party on the non-citizen.
Accordingly, the Tribunal does not accept that s.36(2)(aa) is enlivened by the applicant’s threats of self-harm or suicide should she be required to return to Malaysia.
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in 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). 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.
Joseph Lindsay
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.
…

[2019] AATA 5832

17 May 2019

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice