1704739 (Refugee)

[2017] AATA 2541

1704739 (Refugee) [2017] AATA 2541 (14 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704739

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jane Marquard

DATE:14 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 September 2017 at 10:03am

CATCHWORDS

Refugee – Protection Visa – Malaysia – Fear of violence – Business debts – Witness credibility

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R(2), 424A, 499

Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
Chan v MIEA (1989) 169 CLR 379

MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The first-named applicant is a man from Malaysia. He arrived in Australia [in] November 2016 on a [temporary] visa.

2. The other applicants are his wife and five children.

3. The applicants applied for protection visas under s.65 of the Migration Act 1958 (the Act) [in] November 2016. A delegate of the Minister for Immigration (the Department) refused the visas [in] March 2017.

4. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

5. The applicants provided the following evidence to the Department:

   ·The first-named applicant is from the Melayu ethnic group and his religion is Islam. The family lived in [Pahang], prior to coming to Australia, and he was unemployed;

   ·He left the country because of “various problems and huge risk”. He was worried about his family’s safety;

   ·Two years prior to coming to Australia, he and a partner decided to start a business. His partner borrowed money and was to pay the investor each month. They applied for a loan from the bank but were unsuccessful because “of the other’s problem. We decided to pay that monthly instalment back along with the interest profit after the business expansion was successful”;

   ·The business was running very well until one day the investor told them he had not received any cash payment or transfer from them. The applicant was shocked because he thought that his partner had been paying monthly;

   ·He became very stressed as the business slowed as they had to cover the investor money. The investor sent a [gang] to ask them about the loan. They were attacked and threatened that they must pay the money, even though the investor knew what had happened in the company;

   ·The investor sent the [gang] to ask for the full amount, with interest, which had increased each month. This led to an agreement between the parties. After this the [gang] started a horrible fight and [a number of] of his friends stepped in to protect the applicants. [His friends] were injured and one of the [gang] died;

   ·The [gang] are looking for him, particularly as one of their members died. There is a real possibility that they would kill the applicant;

   ·He has received anonymous death threats which he believes come from the [gang]. He was also followed by strangers. They also hit his wife to show they are serious; and

   ·He did not try and get help from police, as he was warned not to do so.

6. The applicants appeared before the Tribunal to give evidence and provide arguments on 22 August 2017. At the request of the applicants, the hearing was conducted by video from [another city]. The applicants provided the following additional evidence to the Tribunal:

   ·The second to sixth-named applicants would rely on the claims made by the first-named applicant, as members of the family unit of the first-named applicant;

   ·All information provided to the Department was true and accurate, and would be relied on by them;

   ·His father, who was a [Occupation 1], has passed away, and his mother is living with his siblings as she needs [medical care]. He has [a number of brothers] and [a number of] sisters. Some of his siblings live in Kuala Lumpur and some in Pahang. He also has a stepbrother and stepsister. [Details of family]. His [stepsister] has a business in Kuala Lumpur. His next stepsister is a [Occupation 2]. His [stepbrothers] are businessmen. His [sister] also has a business in Kuala Lumpur;

   ·When he finished high school, he helped his father in his [business] for four to five years. In 2004 his father passed away. So the first-named applicant decided to start a business buying and selling [goods]. At the same time he worked with his [brother], selling [other goods] until 2008. He registered [his business] in 2008, and he conducted the business until 2014. It was moderately successful. Annual turnover was MYR [amount], which equates to about A$ [amount]. He employed [a number of] workers and conducted business in his own state and a neighbouring state;

   ·He lived in his late father’s house but it was owned by his mother. Sometimes his mother lives there now, and sometimes it is vacant. He owned a car but sold it before he came to Australia. He did not own any other assets;

   ·He was married in 2004. His wife has never worked. Her family comes from the same region. Her parents are still alive, and she has [a number of] siblings;

   ·In November 2014, he attended the [a business related event]. He met a man called [Mr A]. He knew him before the [event] but they were not close. He and [Mr A] had discussions about ways to expand his business. About two to three months later, they decided to try and grow his company. Their plan was to import [goods] from Australia to be sold in the Malaysian market;

   ·Asked why he decided to go into business with [Mr A] if he did not know him well, he said that this was the biggest mistake he has ever made. At the time, he only thought about the near future, how to get more money “in a big way”. Asked if [Mr A] had experience in this area, he said that he did not, but he had money, and the applicant had experience. Asked how he knew that he had money, he said that [Mr A] told him that he had many contacts in [a country] and [Country 1], and lots of funds to be invested in Malaysian agriculture. He was asked if he did any due diligence on him, such as checking out references. He said that he did not. This was his mistake, he did not check his background;

   ·He said the agreement was made between them and they discussed how to get more funds. They went to the bank to ask for money, but the bank rejected them, suggesting the venture was too high risk. [Mr A] said that he had a friend in [Country 1], [Mr B], and that he had a lot of money to invest. They agreed that the applicant would have a share of [percentage] and [Mr A] and his friend, [Mr B] would get [the remainder]. [Mr B]’s name could not be included in the registration of the company as he did not have a visa;

   ·The first-named applicant did not invest any money, but he used his land as collateral. He had [land] which belonged to his father. [Mr B] invested [amount] MYR, which equates to about A$[amount]. [Mr A] did not invest any money, however his share was based on the introduction to [Mr B], and also the registration under his name;

   ·They planned to import [goods] from Australia, and by the end of 2016, pay back half the investment funds, plus the profits to [Mr B]. There was no agreement to pay a monthly amount to [Mr B]. Every three months they would have a meeting and see if there were other profits to divide;

   ·There were no written agreements between him and his partners as they trusted each other. There may have been an agreement between [Mr B] and [Mr A] but he does not know. They used [Mr B]’s money to buy [goods] in Australia in about July 2015, but half of it came through another importer. This was because they did not have the import licence. Later they obtained an import licence. They then on-sold the [goods]. After that, they decided to buy [goods] from [Country 2]. They drew wages of [amount] MYR for him and [Mr A], but left the profit in the company. He knew a supplier from [Country 2] called [Mr C]. The three of them talked about buying [goods]. [Mr C] gave them a cheap market price, which was an attraction for [Mr A]. They ordered [a quantity of goods]. They needed to advance a [deposit]. [Mr A] said that he would come up with the deposit. But the applicant was a little worried. They deposited the money to [Mr C]’s account, and they were supposed to receive the [goods] two weeks later. He opened two bank accounts in Malaysia (copies of documents provided), but only [Mr A] had authority to sign cheques, and all expenses were approved by him. The sale of the [goods] was a fraud. [Mr C] just disappeared, and he was a [Country 2] national. They did not receive any [goods]. At the same time, in the beginning of 2015, [Mr B] and [Mr A] discussed [undertaking an additional business venture], without his knowledge. He only found out about it when the money went missing. So he was only told in June 2016 that they made a loss of USD [amount] in [that venture]. This money came from their account;

   ·There was a loss of MYR [amount] from the failed [Country 2] transaction. [Mr B] invested another MYR [amount] to buy [goods] in Malaysia to be transported to his farm, but the first-named applicant did not know about this. Half of this money was used as capital, and half to be used for the [goods];

   ·The first-named applicant kept asking his partners about these matters, but they would not tell him anything. After that there was a great deal of arguing between them all. His partners accused him of working with [Mr C] to defraud them, but he had no authority to sign checks. They kept forcing him to meet with the supplier, [Mr C] many times to ask for money back. He did not know where [Mr C] was. In approximately November 2015, they had to sell the [goods] they had for a [event], but did not make their targets and they suffered a loss of between [amount] MYR and [amount] MYR. They kept arguing amongst themselves and it became very complicated. The other partners calculated that the first-named applicant needed to pay [amount] MYR to [amount] MYR to the company. At the beginning of 2016, they telephoned him daily asking him for the money. He became stressed and scared. This continued until mid-2016. Then they brought someone to his house. He does not know who this man was but he believes he belongs to a [gang] and was paid by them. [Mr B] said that the money he invested had not belonged to him, only [amount] % of it did, and the rest came from black money, or money laundered in [Country 1]. He was being threatened by the [gang] so [Mr B] threatened the first-named applicant. [Mr B] had his passport confiscated by the gang and could not leave [Country 1]. The gang also threatened his family;

   ·This was the reason he left the country. There was nothing else that happened that made him leave the country. [Mr A] was calling him daily, and he was traumatised. Before the third party came to the house, he asked his family to leave the house. This third party came to the house two or three times, and said that he must pay, or his life or his family’s lives would be in danger;

   ·In the end, he had to tell his wife about the threats.  They knew that they would be found anywhere in Malaysia as their partners had detailed information about them, so they could not move elsewhere in Malaysia. They knew his personal particulars and had photographs of his family;

   ·Asked if he considered asking the police for assistance, he said that he did not, because his partners were smart, and the threats were verbal so that he had no evidence of them. He was asked if he considered making a financial settlement with his partners, by asking his family for help, or selling his land or looking for any other solutions. He said that he did not own any land, as the land was owned by his mother. He knew that his siblings did not have savings to resolve the problem;

   ·He was asked if he had any contact with [Mr A] or the third party after he received the two or three threats. He said that they contacted him every day, and he did not tell them about his plan to leave. They decided to leave to go to Australia to ask for protection, as humanitarian principles are high in Australia. He received a text from his partner two days after he arrived in Australia stating that his partner would find him in Australia and would publish his photograph in Malaysia and Australia. He said that his sister had also been contacted twice by a member of the [gang] who asked where the applicant was located;

   ·The Tribunal put to him that, according to country sources, the police force in Malaysia is regarded as reasonably effective, so why did he not ask them for protection, given that he had not done anything wrong. He said that he believed that the police would not be able to assist, and there are many killings and kidnappings; and

   ·The second-named applicant said that they are very scared to return if these threats continued. They came to Australia because it values humanitarian ideals. There are many children being kidnapped and killed. They would like to stay a little longer in Australia.

7. The applicants provided the following documents:

   ·A document titled “Bank Details” with the name of the bank and the account number, and a number of Malay language documents attached;

   ·Company registration certificate (in Malay);

   ·Company form “Notice of Situation of Registered Office and of Office Hours” for [the business];

   ·Form 24 indicating allocation of shares between [Mr A] and the applicant;

   ·Register of Directors for the [the business];

   ·Notice of Resolution for increase in authorised capital;

   ·Other company forms;

   ·Copy of emails allegedly from [Mr A];

   ·Copies of media articles about abduction of children for organs and murders in Malaysia;

   ·Copies of media articles about access to personal information in Malaysia;

   ·Copies of media articles about [gangs] in Malaysia; and

   ·Copies of media articles about corruption in Malaysian police.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In coming to a decision, the Tribunal has taken into account evidence on the Department file, evidence before this Tribunal, and independent country information about Malaysia.

9. A summary of the relevant law is set out at Attachment A, along with an extract of the legislation.

   Nationality

10. The applicants provided copies of passports and birth certificates, and the first-named applicant gave evidence that he is a citizen of, and born in, Malaysia. The Tribunal accepts on the basis of the passports and personal particulars provided, that the applicants are citizens of Malaysia, and that Malaysia is the receiving country for the purposes of the complementary protection provisions.

    Findings of fact

11. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

12. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, 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 of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

13. After considering all the oral and written evidence carefully, the Tribunal accepts that the first-named applicant entered into a business with partners to buy and sell [goods]. The applicant was able to provide extensive details about how he came to find these partners, and the type of business they wished to enter into, and has provided company documents relating to the company. The Tribunal accepts on his oral evidence that there were disputes between the partners, as supported by emails allegedly from [Mr A].

14. 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.)

15. The Tribunal is not satisfied that the first-named applicant or his wife or other family members, were threatened by his business partners or [gang] members because of the business disputes. As set out below, the evidence about these matters has been inconsistent in key aspects, and the explanation provided by the first-named applicant for these inconsistencies has been unconvincing. This has led the Tribunal to conclude that the applicants have fabricated evidence about threats of harm for the purpose of the protection visa application.

16. The inconsistencies in the evidence were as follows. The applicant told the Department that he and his business partner agreed to pay an investor each month. He said that the business was going well until he discovered that his business partner had not been paying the investor. He said that he was shocked because he thought that his partner had been paying monthly, and because of this he became stressed, and the business slowed as they had to pay the investor back. He went on to tell the Department that the investor sent a [gang] to ask he and his business partner about the loan. They were attacked and threatened. Then he formed an agreement with the investor. After this, the [gang] started a “horrible fight” with the applicants and two of his friends stepped in to assist the applicants. Both of them were injured, and a member of the [gang] died. He claimed that the [gang] were looking for him, particularly as one of their members had died. He also claimed to have received anonymous death threats and to have been followed by strangers. He said that the [gang] members hit his wife to show that they were serious.

1. A very different account was provided to the Tribunal. The first-named applicant said that he entered into a partnership with two men, one of whom was an investor. There were no monthly payments, but rather they agreed to repay half the amount at the end of 2016. After buying some [goods] from Australia and re-selling it, they entered into another deal to buy [goods] from [Country 2]. They paid money for the [goods], but the [goods] was never supplied by the supplier in [Country 2], which caused the business hardship. The investor and the other partner thought that the first-named applicant was working in cohorts with the [Country 2] supplier. The investor and other partner then used partnership money without the first-named applicant’s permission to enter into other deals. They claimed that the first-named applicant owed them money, and they sent a third party, whom he thought was associated with a [gang], to threaten him on many occasions. There were no attacks by the [gang] and his wife was not hit. Further, there was not a fight in which two of his friends were injured, and one [gang] member was killed.

2. When these inconsistencies were put to the applicant at the Tribunal hearing pursuant to section 424A of the Act, he said that he would like to apologise for the Department application as a friend wrote his application, and he only read it afterwards. At another point in the Tribunal hearing he said that he wrote the application “wrongly, because he was only thinking of his family”. The Tribunal does not accept that the first-named applicant would bring his whole family to Australia, and then not carefully prepare, or at least, read, the application for protection which would have such an impact on his life. The Tribunal notes that he prepared extensive documentation for the Tribunal, and appeared therefore to be a well-prepared person. He has had business experience in Malaysia, and thus would be well aware of the importance of preparing accurate documents, particularly if he was defrauded by his partner as claimed. The Tribunal notes that he has signed the document.

3. Furthermore, at the beginning of the Tribunal hearing the first-named applicant told the Tribunal that everything in his Departmental application was true and accurate. It was only when the Tribunal referred to the inconsistencies that he submitted that he had not read the Departmental application. Further, at one stage of the hearing he told the Tribunal that he prepared the application wrongly, but at another stage, he said that his friend had written it and he read it afterwards.

4. The accounts of what took place were highly different in key aspects. For example, the first-named applicant said to the Department that he had to pay the investor in monthly instalments, and that it was the other partner’s omission to pay which led to a dispute with the investor and threats against both partners. However the first-named applicant told the Tribunal that there were no monthly payments, and that he had a dispute with the other partner and the investor. This is a fundamental part of his claim in that he suggests that it led to threats from a [gang]. He also made serious allegations to the Department that people died and were injured in a fight, and that his wife was assaulted, but he told the Tribunal that these incidents did not occur. Additionally, when the inconsistency about the payment in instalments was put to the first-named applicant, he responded that initially there were payments to be made each month, but this was altered later when they realised they needed the funds. The Tribunal does not accept this explanation as it asked a specific question about monthly payments and was told there were none.

5. Given the unconvincing nature of his explanation for the inconsistencies, the Tribunal is not satisfied that his account of the harm he suffered is credible, because it is so inconsistent with the earlier account of the events leading to him leaving the country and travelling to Australia.

6. While the Tribunal accept that there may be minor inconsistencies in accounts of evidence due to memory problems, assistance with writing an application, and other issues, in this case the inconsistencies are so fundamental, and his explanation so varied, as to lead the Tribunal to conclude that the evidence has been fabricated for the purposes of setting up a protection claim.  

7. The Tribunal is not satisfied therefore that the first-named applicant or his wife or sister were threatened or harmed in any way, by a [gang], or other persons, because of conflict with his investor and partner. Given the inconsistencies in the evidence, the Tribunal is not satisfied that the partners made threats to him and his family, or that he fears serious harm from them.

   Well-founded fear of persecution

8. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears 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. The Tribunal has considered whether there is a real chance of persecution for one of the reasons set out in the legislation were the applicant to return to Malaysia in the reasonably foreseeable future.

9. The Tribunal is not satisfied that the first-named applicant or members of his family were threatened or harmed by members of a [gang], or his ex-partner, investor or their associates, prior to coming to Australia, for the reasons set out earlier in this decision.

10. The Tribunal is not satisfied that the first-named applicant or his family was threatened or harmed by anyone in the past. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility ( see Chan v MIEA (1989) 169 CLR 379). The Tribunal is not satisfied on the evidence provided that there is a real chance (anything more than a remote chance) that the applicants would suffer serious harm (of the kind indicated in section 91R(2) or harm at a similar level), by the investor or partner, [gang] members or their associates, if the applicants returned to Malaysia. As the Tribunal is not satisfied that the applicants were harmed or threatened in the past, the Tribunal is also not satisfied that the applicants would be targeted for serious harm in the future as the evidence does not indicate that there are any threats to them. The Tribunal is satisfied that there may have been disputes between the partners but not that the applicants would be threatened or harmed by them. The Tribunal notes that the applicants were able to travel to Australia with a large family, and have family members in Malaysia, such that they would be in a position to resolve financial disputes. In any event, the Tribunal does not accept the evidence that the business partners would harm them in the future, nor that the applicants would be killed or kidnapped. The Tribunal accepts that there is crime in Malaysia, including kidnappings of children and operation of [gangs], as set out in the articles provided by the applicant. However for the reasons given, the Tribunal is not satisfied on the evidence provided that the applicant’s partners or their associates would inflict this kind of serious harm on the applicants.

11. The Tribunal is not satisfied therefore that the applicants have a well-founded fear of persecution for one of the reasons set out in the legislation were they to return to Malaysia in the reasonably foreseeable future.

    Complementary Protection

12. 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 a protection 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 the applicant 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’).

13. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

14. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

15. As set out earlier in this decision, the Tribunal is not satisfied that the applicants were threatened or suffered any harm in the past from the first-named applicant’s business partner, investor, their associates or [gang] members. The Tribunal is not satisfied therefore that there is a real risk (anything more than a remote risk) of any of the kinds of significant harm set out in s.36(2A).

16. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk of significant harm.

    Members of the same family unit

17. The applicants provided birth certificates for all family members, and a marriage certificate for the first and second-named applicants. The Tribunal is satisfied, based on these documents, that the second-named applicant is the wife of the first-named applicant, and that  the third to seventh named applicants are children of the first-named applicant.

    CONCLUDING PARAGRAPHS

18. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants protection visas.

    Jane Marquard
    Member

    
    

    Attachment A

    RELEVANT LAW

    CRITERIA FOR A PROTECTION VISA

20. 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.

21. 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.

22. 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).

23. 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.

24. 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

25. 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.

    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.

    …