1704246 (Refugee)

1704246 (Refugee) [2017] AATA 2076 (8 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704246
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Frances Simmons
DATE:8 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 August 2017 at 2:46pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Harm from former employer – Accused of theft – Ordered to repay money – Credibility – Discrepancies between oral evidence and written claims – Evidence vague and unconvincing – Fabricated for protection visa application
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1) -(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36 (2A) and (2B), 65, 499
Migration Regulations 1994, Schedule 2
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] March 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] November 2016. The delegate refused to grant the visa [in] March 2017 on the basis that he is not a person in respect of whom Australia has protection obligations.
The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.
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
Nationality
The applicant claims to be a citizen of Malaysia and provided copies of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant's receiving country for the purposes of the refugee and complementary protection assessment.
There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act
Background
The applicant is a Malaysian citizen who was born on [date] in Kotta Kinabalu in Sabah. He declares that he speaks, reads, and writes English and Malay. He is of the Malay ethnicity and Muslim faith.
The applicant was issued a passport [in] 2013. He arrived in Australia [in] August 2016 holding a [temporary] visa.
He has previously travelled to [Country 1].[1] The stamps on the applicant’s passport indicate he travelled to [Country 1] [in] December 2015 and he returned to Malaysia [in] January 2016.
[1] Departmental file, folio 16.
The applicant states that his last address in Malaysia was [district]. No further details are provided.
Protection visa application
In his protection visa application form the applicant states that he left Malaysia because his life was in danger. He states that if he returns to Malaysia he will be killed. In response to the question did you experience harm in that country, he ticked no. He declares he was not able to move to another part of the country.
The applicant provided a statutory declaration which provides more details about his claims. He claims that he worked as a [occupation] for a company that delivered [items] to other branches of the company in different parts of the country. He was asked to deliver [items] to another branch of the company that was almost two days away. He drove the [vehicle] for one day and decided to rest at night. He parked in the middle of the jungle and slept. He claims:
During the night people came and tie me and threw [me] out from the [vehicle]. I was injured. In the morning time other people came and helped me to untie me. I called the police and I informed company what happened to me in the night time. There were expensive [items] in the stolen [vehicle]. I called police and I informed company what happened to me in the night time. There were expensive [items] in the stolen [vehicle].
Police investigated the matter but did not arrest the people who stole the [vehicle] from me. But police already knew that there is an active group which [is] involved in this kind of stealing. Police also told my company owner that there is a group who are robbing people in this area. My company owner was not believing but he was blaming for this stealing. He told me that I have [pay] money the value of the stolen [items] which is around AUD$[amount]. I was in fear for my life so I came to Australia.
No additional information was provided to the Department in support of the applicant’s application for a protection visa.
Additional evidence to the Tribunal
The applicant appeared before the Tribunal via video link from [town] on 7 August 2017. The Tribunal explained the refugee and complementary protection criteria. The applicant confirmed the information he provided in his application was true and correct. He said he prepared his application himself. The additional information he provided to the Tribunal is summarised below.
The applicant told the Tribunal before he travelled to Australia he was living in Johor Bahru. He did not have a permanent job: he did different types of work: [occupations]. He is unmarried and does not have any family living in Malaysia.
The applicant told the Tribunal he had lived in Johor Bahru for more than twelve years. He provided his last residential address in Malaysia. Asked how long he lived at this address before he moved to Australia, he then said that before he travelled to Australia he stayed a friend’s house for a short time in Kuala Lumpur (around a month).
The applicant told the Tribunal that before he came to Australia he was depressed (he said he took [medication]). Now he feels a bit better (he takes [medication]). He does not have a permanent job in Australia but he is doing some farm work.
The applicant told the Tribunal that before he travelled to Australia he had been to [Country 1], [Country 2] and Malaysia. He confirmed he travelled to [Country 1] in December 2015 and returned to Malaysia in January 2016. He thought he obtained the visa to travel to Australia about a month before he left Malaysia.
The applicant told the Tribunal he went to [Country 2] in 2016. He stated he went to [Country 2] from [date] April 2016 to [date] July 2016. He held up his passport and showed the Tribunal the passport stamps evidencing this travel. The Tribunal noted he did not provide these pages of his passport to the Department with his application.
The applicant told the Tribunal that he went to [Country 2] because he was experiencing tension for the reasons he gave in his protection visa application so he went to [Country 2] to see his friends and relatives. He went to [Country 1] to visit with his friend as he wanted to see some business products. He went to [another country] a long time ago, perhaps a year before he came to Australia.
Asked why he would be harmed if he returned to Malaysia now, he reiterated his claims that his former employer thought he was involved with the [vehicle] being stolen. He told them he was not involved but they still believed he was involved. They threatened him and he was afraid. Because of this problem he was afraid his depression would escalate. As a result of his depression whenever he left home in Malaysia, he always forgot the way home. He was afraid his depression would increase and his problem would increase.
The Tribunal put to the applicant that he managed to find his way to [Country 2] and back to Malaysia. The applicant said he went to [Country 2] for three months and they did not give him an extension to stay.
The applicant told the Tribunal the incident with the [vehicle] happened before he travelled to [Country 1]. Later in the hearing, he stated the incident with the [vehicle] happened about one year before he travelled to [Country 1].
Asked why he would face harm because of this incident now, the applicant said he was driving a [vehicle] loaded with [items] and he had a rest on the way and some people came and tied him up and took the key of the [vehicle] and took the [vehicle]. After that he contacted his boss and manager and then they reported the matter.
The Tribunal asked the applicant if he contacted the police. He said he did not contact the police; the boss did. The Tribunal asked if he was injured when the [items] were stolen. He said no.
The applicant told the Tribunal after the incident with the [vehicle] he stayed in Johor Bahru for a while but then he started living in Kuala Lumpur and then he moved again and kept moving from place to place.
The Tribunal asked who was threatening him. The applicant said the threat was coming from the manager and the workers (not the boss) but the manager told him the order to threaten him was given by the boss. He told the Tribunal he was threatened because they believed he was the one who planned to steal the [items]. However, he had informed the police he was not involved and the police told the company he was not involved. His employers denied threatening him.
The applicant told the Tribunal that the company asked him to pay them money but he did not do so. He told the Tribunal he did not pay them. He said they wanted him to pay more than [amount] Malaysian ringgit. The applicant estimated this was more than $AUD[amount].
The Tribunal asked whether he was ever actually harmed. He said they tried a few times but there were other people at his home so they could not harm him because they never found him alone. The applicant said if he went anywhere in Johor Bahru they would know him.
The Tribunal observed it needed to consider whether he could relocate to another part of Malaysia and avoid the harm he feared. Asked why he couldn’t avoid the harm he feared in Johor Bahru by moving to Kuala Lumpur, he said with this friend yes, he trusted his friend; his friend would not cause him any risks. He said he could go to other safer places but his depression was haunting him; it was not leaving him alone. The Tribunal observed he had medication for depression in Malaysia in Australia and Malaysia. The Tribunal explained it needed to consider whether there was a real chance he would face serious harm or significant harm.
The Tribunal discussed with the applicant its concerns about the credibility of his claims. Where relevant the applicant’s evidence in response to the Tribunal’s concerns is discussed further bellowing in the Findings and reasons. Towards the close of the hearing he was asked whether there was anything further he wanted to tell the Tribunal. There was not.
Findings and reasons
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if the Tribunal 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.[2] 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.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220
[3] 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
The Tribunal has carefully considered the evidence the applicant presented to the Department and the additional evidence that he gave to this Tribunal. For the reasons that follow the Tribunal has serious concerns about the credibility of the applicant’s claims.
The applicant’s evidence to the Tribunal about the incident in which the [vehicle] was stolen (‘the stolen [vehicle] incident’) was, in a number of respects, inconsistent with his written claims. As the Tribunal put to the applicant in his brief written claims he claimed that he was injured when the [items] were stolen, people had to help untie him and then he called the police. However, he told the Tribunal he was not injured in the stolen [vehicle] incident and he did not call the police; he told the Tribunal it was the company owner called the police. Also of concern: in his written claims, the applicant stated the company owner told him that he owed the value of the stolen [items], which was around $AUD[amount] (at the hearing the Tribunal noted this was equivalent to around [amount] ringgit). However, the applicant told the Tribunal that he had been told by the company that he owed them $[amount] ringgit or around $AUD[amount].
When the Tribunal invited the applicant to comment on these discrepancies he said that there may be some differences but because he was depressed sometimes he forgot some details. As the Tribunal put to the applicant, there is no medical evidence before the Tribunal which indicates that he is depressed or that his depression would have this impact on his memory. The applicant said he had seen a doctor in Australia and received treatment in Malaysia and he could see that his memory decreased because of his depression. The Tribunal notes that earlier in the hearing the applicant had complained that, because of his depression, whenever he left his home in Malaysia he always forgot his way home and yet his evidence indicates that he travelled to [Country 1] (for business) and to [Country 2] and returned to Malaysia. The Tribunal found his evidence about the impact of his depression unconvincing and it does not accept he has adequately explained the discrepancies between his oral evidence and his written claims. Over all, the Tribunal found the applicant’s evidence about his claims to be brief and his evidence about the threats he claims to have received after the stolen [vehicle] incident was vague – for example, he claimed they tried to harm him a couple of times but there were always people at home - and unconvincing.
The Tribunal considers the timing of the applicant’s departure from Malaysia casts doubts upon his claims that he left Malaysia because his life was in danger. The applicant’s evidence was that the stolen [vehicle] incident occurred about a year before he travelled to [Country 1] in December 2015. However, he did not travel to Australia until [date] August 2016 and, according to his own evidence, he remained living in Johor Bahru until December 2015, around a year after the incident when the [vehicle] was stolen. The Tribunal put to the applicant that it appeared that he lived in Johor Bahru for around a year after the stolen [vehicle] incident occurred and that he did not appear to have been harmed. The applicant said he was staying for a year in the place but in the beginning they were not that harsh to him but after four or five months they started threatening him more harshly. The Tribunal put to the applicant he didn’t travel to [Country 1] until December 2015 and then he went back to Malaysia before travelling to [Country 2] and back to Malaysia again. The Tribunal put to the applicant that it did not appear that he had ever been required to pay back to money the company believed he owed. The applicant said after five months they were not harsh to him but then they said he owed [amount] ringgit. He told them they did not have money but they did not look like they were satisfied.
However, the Tribunal considers the fact that the applicant’s evidence indicates that he left Malaysia and travelled to Australia well over a year and half after the stolen [vehicle] incident undermines his claims that he left Malaysia because he was in danger. In his written claims the applicant indicated he had not experienced harm in Malaysia. Before the Tribunal he testified that they tried to harm him but there were other people at his home so they could never harm him because they never found him alone. The applicant did not claim to have been forced to repay the money he was said to owe to the company owner or to have been physically harmed. The Tribunal considers that the fact that the applicant was able to remain living in Malaysia for a significant period of time after the claimed incident suggests that his claims to fear harm from a company owner or those acting on his behalf have been fabricated. These concerns are deepened by the fact that the applicant travelled in and out of Malaysia during this period (including to [Country 1] and [Country 2]) and voluntarily returned to Malaysia. The applicant stated he could only stay in these countries on a temporary basis but there was no practice of seeking protection so he had to come back and when he did he didn’t stay in one place.

However, the Tribunal considers that the applicant’s evidence indicates he stayed in Johor Bahru for around a year after the incident with the truck occurred and this suggests to the Tribunal that he did not fear harm in this area. Furthermore, while the Tribunal has considered the applicant’s evidence that he was threatened ‘more harshly’ over time and they couldn’t find him alone, the Tribunal finds this explanation vague and unconvincing, as the Tribunal considers that if the applicant’s former employers wanted to harm or kill him they had a significant period of time after the stolen [vehicle] incident and before he left Malaysia in which to do so. The Tribunal does not accept that the applicant travelled to [Country 1] or [Country 2] because he was in need of protection or that he moved around in Malaysia to avoid being harmed. The Tribunal notes that the applicant told the Tribunal he was granted a [temporary] visa about month before he left Malaysia. Questioned about why he didn’t leave Malaysia as soon as he could, the applicant said after he got the [temporary] visa he didn’t have enough money so he had to go different places within Malaysia. While the applicant may well have delayed leaving Malaysia for Australia for financial reasons, the Tribunal does not accept that he left Malaysia and travelled to Australia because he was in need of protection.
The Tribunal finds that the applicant is not a credible witness. The Tribunal does not accept that he left Malaysia and travelled to Australia because he was need in of protection. While the applicant may well have worked as a [vehicle] driver in the past, the Tribunal finds that his claims to be of adverse interest to his former employers have been fabricated for the purpose of making an application for a protection visa. The Tribunal does not accept that the applicant was ever assaulted by people who stole the [vehicle] (and its cargo of [items]) or that he was accused by the company he worked for of being involved in the theft of [vehicle] or that he was ever threatened or harmed or that he was told he had to repay money to the company in relation to this theft or that he suffered depression because of these events. The Tribunal does not accept that the company owner ever accused the applicant of stealing, or that he had to move to different places to avoid being harmed, or that he has been threatened, or that people working for the company threatened him, or tried to kill him or harm him or that the applicant travelled to [Country 2] or any other place because he feared harm in Malaysia. Because the Tribunal does not accept the applicant’s claims are credible, the Tribunal finds that there is no real chance that the applicant will face serious harm or significant harm for the reasons he has claimed if he returns to Malaysia.
Having considered the applicant's claims, the Tribunal is not satisfied that there is a real chance that the applicant will be subject to serious harm or significant harm by his former employers in Malaysia (including the company owner and people acting on his behalf) or from any other person or group. The applicant has not raised any other claims to fear serious harm or significant harm in Malaysia from the Malaysian authorities or any other persons or groups. The Tribunal considers the only profile he has in Malaysia is that of an ordinary Malaysian citizen.
On the evidence before it, the Tribunal finds that there is not a real chance that the applicant would be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion) if he was to return to Malaysia. His fear of persecution is not well-founded as required by s.5J of the Act. Therefore he is not a refugee within the meaning of s.5H.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the complementary protection criteria in s.36(2)(aa). The Tribunal has found the applicant’s claims are not credible. Having regard to its findings of fact, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm from his former employers or from any other persons or groups in Malaysia.
Having considered all the evidence before it, the Tribunal finds that there are not 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 he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
CONCLUSION
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). 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.
Frances Simmons
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 2076

8 August 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction