1705038 (Refugee)

1705038 (Refugee) [2018] AATA 3054 (2 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705038
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Saxon Rice
DATE:2 February 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 February 2018 at 3:30pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Shia – No religious freedom – Threats from the Islamic department – Lack of knowledge of the Shia religion –Inconsistences between the written application and oral evidence – Credibility issues – No well-founded fear of persecution – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 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 25 October 2016. The delegate refused to grant the visa on 10 March 2017.
This is therefore, an application for a review of that decision.
The applicant was given an opportunity to appear before the Tribunal on 30 January 2018 to give evidence and present arguments. The hearing was conducted in the Malay and English languages and the applicant is not represented in this matter.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
CLAIMS AND EVIDENCE
Evidence
The evidence before the Tribunal includes the following relevant material:
·The completed protection visa form, lodged on 25 October 2016.
·A photocopy of the applicant’s Malaysian passport.
·The delegate’s protection visa assessment record (‘delegate’s decision record’) of 10 March 2017.
·The applicant’s online application for review on 16 March 2017.
·The applicant gave oral evidence at a Tribunal hearing on 30 January 2018.
The applicant provided no additional submissions to the department and no further written submissions or documentation in support of his claims were provided prior to or during the Tribunal hearing.
Background
When lodging the application to the Department, the applicant stated that he was born in Terengganu, Malaysia. He stated on the application form that he can speak, read and write Malay and English. He indicated that his religion was Muslim and he identifies as ethnic Malay.
The applicant stated that he completed high school in December [year] and indicated that he owned his own [business] from January to August 2016.
The applicant holds a Malaysian passport issued on [date] 2016. According to details provided in his protection visa application, the applicant first arrived in Australia on a [temporary] visa on 21 August 2016 and he stated that he has not previously travelled to any other countries.
Claims
The applicant’s claims, as set out in his protection visa application are reproduced in full below (errors in original):
I left my country because I have been in accordance with the teachings of the Shia. At my country I can’t practice Shia because the Malaysian government declare that Shia is illegal to be practised.
I hunted down by the authorities Islamic department and police, and will be brought before the courts and will be jailed.
I’ve been given a warning by the enforcement officer Islamic department to abandon the Shia ideology and belief and I also received a death threat from the Wahabi faction.
Malaysia government only accept people who practice Ahli Sunni and it against my beliefs. I have no place to complain in my country so I was forced to flee.
No place for me to flee in my country because in my country does not accept my belief. Majority of them are Ahli Sunni and Wahabi. Islamic Department (Government) has issued order to arrest people who practise Shia like me.
Yess, I will probbaly get caught by the government and sentenced guilty for practising Shia and even get fill threat by Wahabi.
Shia ideology is not in adoption in my country and those who practice it will be found in the sentencing guilty.
As I will be threatened by the Wahabi faction, I will be in jailed. Malaysian it no longer safe for me. Took refuge because majority of people reject Shia ideology and I will get imprisone if practicing it.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that he is a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Tribunal hearing
At the Tribunal hearing, the applicant told the Tribunal that he did not remember filling out his protection visa application because a friend helped him. The Tribunal asked the applicant about his friend. The applicant said that his friend was someone from [Country 1]. He said his friend’s name was ‘[Mr A]’ and he met him when [Mr A] was working on the applicant’s [family business] in Malaysia. The applicant told the Tribunal that [Mr A] left Malaysia and came to Australia ‘by boat’ as a refugee.
The applicant told the Tribunal that [Mr A] helped him fill out his protection visa application form because they were ‘on the same boat’. The Tribunal asked the applicant what he meant when he said that he and [Mr A] were ‘on the same boat’. The applicant said that they both have the same religion. The Tribunal also asked the applicant whether he had his protection visa application interpreted back to him and if he was satisfied with what was contained in his protection visa application. The applicant told the Tribunal that [Mr A] interpreted the protection visa application to him in Malay but he did not remember. The applicant also told the Tribunal that it was stated in his protection visa application that he did not receive any assistance in completing his application because [Mr A] completed it for him.
The Tribunal noted that it might have difficulty in accepting that the applicant allowed someone else to complete something as significant as a protection visa application for him and that he did not know or remember what information it contained and invited the applicant to comment. The applicant said that it was because [Mr A] was the person who suggested he come to Australia and ask for protection and that [Mr A] told him that he could help do everything for him.
The Tribunal asked the applicant about his family. The applicant told the Tribunal that his parents still live in the family home and that he has an [sister] in [Country 2] and [brothers] who are married and have their own families also living in Malaysia. The applicant told the Tribunal that when he first arrived in Australia he spoke to his family weekly but now it is not that often because they are always busy and there is a time difference.
The Tribunal asked the applicant about his education and employment. The applicant told the Tribunal that he completed high school in 2012 and he pursued a qualification in architecture but did not complete it. The applicant said that following school, he worked on his [family business] and at night he worked on a [another business]. The applicant said that he has been supporting himself in Australia by working [in a certain role] since November 2016.
The Tribunal asked the applicant about his travel to Australia. The applicant confirmed that he arrived in Australia in August 2016. The applicant told the Tribunal that he arrived on a ‘holiday visa’ with the intention or ‘original plan’ to sightsee with friends because he had a friend studying in [Australian city 1]. The applicant said that he came to Australia to visit [Mr A] and a friend in [Australian city 1] and said that at the same time, [Mr A] asked him to apply for protection. The Tribunal asked the applicant when [Mr A] asked him to apply for protection. The applicant said that [Mr A] asked him when they were in Malaysia before he came to Australia.
The Tribunal noted that the applicant had said that he intended to come to Australia to sightsee and visit friends but that he had also said that he was told to apply for protection in Australia before leaving Malaysia and asked the applicant if he could explain these two seemingly contradictory statements. The applicant told the Tribunal that [Mr A] was in Malaysia working for his father and then he came to Australia as a refugee because when he asked for protection in Malaysia, he wasn’t given it so he came to Australia. The applicant said that at the same time, he came to visit a friend.
The applicant told the Tribunal that he did not have any difficulties in obtaining a passport in Malaysia or departing Malaysia. The applicant also told the Tribunal that he travelled to Australia with his cousin but she has left Australia now as she was pregnant. The applicant said that his intention in coming to Australia with his cousin was to ask for protection.
The Tribunal asked the applicant about the claims he made in his protection visa application. The applicant confirmed that his claims for protection relate to his participation in the ‘BERSIH 4.0’ rally. The applicant said he remembered completing his protection visa application and a friend read it back to him in Malay so he was satisfied that his application contained the totality of the claims that he was making.
The Tribunal asked the applicant what his understanding is of why his protection visa application was refused by the department. The applicant stated that he does not know.
The Tribunal asked the applicant what he fears in returning to Malaysia. The applicant said that he cannot be in Malaysia. The Tribunal asked the applicant why he cannot be in Malaysia. The applicant said that it was because Malaysia only accepts Sunni and he is Shi’a (Muslim).
The Tribunal asked the applicant about his Shi’a faith. The applicant told the Tribunal that he was the only member of his family that was Shi’a because he liked Shi’a because it was more liberal and Sunni is more restrictive. The applicant said that he converted to Shi’a Islam in 2014 when he was studying.
The Tribunal asked the applicant how he converted to Shi’a Islam. The applicant said that he knew [Mr A]. The Tribunal asked the applicant why that meant he was able to convert to Shi’a. The applicant said that it was because [Mr A] told him that Shia is a free religion unlike Sunni. The Tribunal asked the applicant how he specifically converted to Shia. The applicant said that it was because [Mr A] told him about Shi’a and he was very interested so he followed him. The Tribunal asked the applicant again what process he went through to convert to Shi’a Islam. The applicant that he didn’t do anything, he just told his friend [Mr A] that he wanted to be Shi’a.
The Tribunal asked the applicant about his practice of Shi’a Islam. The applicant told the Tribunal that he only prays three times a day and Sunni’s pray five times a day. The Tribunal asked the applicant if his practice of Shi’a Islam involved anything else. The applicant said there are a lot of other things but he doesn’t practice them, he only prays. The applicant told the Tribunal said that there are a lot of other things he likes about Shi’a because Shi’a is free.
The Tribunal asked the applicant what attracted him to Shi’a Islam. The applicant said there are a lot of things you cannot do if you are Sunni but you can if you are Shi’a. The Tribunal asked the applicant if he could give examples of what you cannot do as a Sunni. The applicant said that Sunni’s have to pray five times a day and Shi’a only three.
The Tribunal asked the applicant what he fears about returning to Malaysia as a Shi’a Muslim. The applicant said that the government only accepts Sunni’s and if they know that he is here then maybe they will put him in jail. The Tribunal asked the applicant why he might be put in jail. The applicant said that it was because his religion is considered a cult.
The Tribunal noted that the applicant had said he lived with his parents until he travelled to Australia and asked the applicant about who knew of his conversion to Shi’a Islam. The applicant told the Tribunal that he did not tell his family of his conversion until he came to Australia because he was scared to tell them. The Tribunal asked the applicant why he was so persuaded by Shi’a Islam that he chose to convert his religion but he did not feel he could tell his parents. The applicant said that it was because his family would not have approved. He also told the Tribunal that nobody in Malaysia knew he had converted to Shi’a Islam because he kept it quiet as it was not allowed. However, he said that he has since told his family and they are angry that he changed his religion.
The Tribunal asked the applicant what harm he had suffered in Malaysia as a result of his religion if nobody knew of his conversion to Shi’a Islam. The applicant said that they think Shi’a is a cult. The Tribunal asked the applicant again whether he had experienced any harm in Malaysia as a result of practicing Shi’a Islam. The applicant said that he had not experienced any harm in Malaysia because nobody knew but if they knew, it would be different.
The Tribunal noted that the applicant had said in his protection visa application that he had received a death threat from the Wahabi faction and a warning from an enforcement officer from the Islamic Department and asked the applicant if he could explain these claims given he had also told the Tribunal that he had not experienced any harm in Malaysia due to his Shi’a faith as nobody knew about it. The applicant said that these claims were experienced by his friend. The Tribunal noted that the claims refer to the applicant personally and do not refer to having occurred to a friend. The applicant confirmed that these things did not happen to him because nobody knew about his religion but he said they happened to a friend and if people knew about him, they could happen to him too.
The Tribunal asked the applicant what his understanding was of the law in Malaysia in relation to Shi’a Islam. The applicant said that maybe if government knew about him, he would be put in jail.
In relation to harm in Malaysia if the applicant returns, the Tribunal discussed country information with the applicant that indicates that while there are limitations to religious freedom in Malaysia, DFAT reported in 206 that despite legal barriers to their worship, the majority of Shi’a Muslims ‘live free from discrimination or violence on a day-to-day basis’ and while a number of Shi’a Muslims have been arrested since the introduction of the 1996 fatwa outlawing Shi’a Islam, such incidents are infrequent, and rarely result in charges being laid. The Tribunal also noted that credible local non-government and religious authorities advised DFAT that enforcement efforts generally focused on conversions (to Shi’a Islam) and proselytisers, not assembly or worship.[1] The Tribunal noted that while the applicant claims to have converted to Shi’a, he has not said that he proselytises and he has not been the subject of harm in the past and asked the applicant why he could not return to Malaysia and continue his practice of Shi’a of praying three times a day. The applicant said that if ‘they’ see him as Shi’a, they will think that he is out of line.
[1] Department of Foreign Affairs and Trade, Country Information Report: Malaysia, 19 July 2016, p. 12.
The Tribunal asked the applicant if there was anything else he wanted to make the Tribunal aware of in relation to his claims for protection or any harm he has experienced in Malaysia. The applicant told the Tribunal that before he came to Australia, he didn’t receive any harm but if he goes back then he will because everyone will know he is Shi’a.
The Tribunal explained to the applicant that it was obliged to raise with him any concerns it might have about his application. The Tribunal explained that it was concerned that there were a number of significant inconsistencies in his evidence between his written application for protection and what he had told the Tribunal, including that he had converted to Shi’a Islam but that nobody knew of his conversion and that he had not experienced any harm in Malaysia but his application refers to death threats and warnings. The Tribunal also noted that the applicant’s evidence that he planned to come to Australia to sightsee and visit friends is inconsistent with his evidence that he came to Australia to claim protection. The Tribunal explained that these inconsistencies could cause the Tribunal to doubt the credibility of the claims he was making and invited the applicant to comment. The applicant said that before he had done everything secretly but if he goes back he will probably get punished and that is why he is scared to go back.

The Tribunal noted that it might have difficulty in accepting that the applicant had converted to Shi’a Islam because he had spoken so generally about the Shi’a religion, what attracted him to it, how he practices it and that the Tribunal might have difficulty in accepting that the applicant had converted to Shi’a Islam by telling a friend that he wanted to be Shi’a. The Tribunal noted that if this was its conclusion, then the Tribunal might doubt the applicant’s credibility generally and conclude that he is not at risk of serious or significant harm. The Tribunal invited the applicant to comment. The applicant said that he had no comment.
The Tribunal also noted that the applicant had told the Tribunal that one of the reasons he came to Australia was for protection but it was more than two months after his arrival before he made is application for protection. The Tribunal noted that the applicant’s evidence suggested that he was aware of protection visas and that Australia offered them but delays in applying for protection can cause the Tribunal to doubt the credibility of the claims being made. The Tribunal invited the applicant to comment on his delay in making a claim for protection. The applicant told the Tribunal that he needed to understand more about what was included in protection visas.
In accordance with s.424AA procedure, the Tribunal outlined to the applicant that in 2017, the Tribunal (previously constituted) had before it a protection visa application with almost word-for-word, identical claims to the claims the applicant has made.[2] The Tribunal also noted that the address provided by the applicant in the protection visa application considered by the Tribunal in 2017 was the same as the applicant’s residential address. The Tribunal explained that the relevance of this information is that the Tribunal may find that the identical claims cause it to conclude that the applicant’s claims are a pure fabrication and not genuine. The applicant was offered but did not seek additional time to respond and told the Tribunal that he came to Australia with his cousin and his cousin copied his claims.
[2] See AAT case number 1704453.
The Tribunal asked the applicant if there was any other information he wanted to make the Tribunal aware of in relation to his protection visa application. The applicant said, no.
FINDINGS AND REASONS
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
The Tribunal notes that the 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. 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, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. 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.
During the hearing, the Tribunal discussed with the applicant his family, his education, his employment, where he lived in Malaysia, his reasons for leaving Malaysia, his activities in Australia and why he fears returning to Malaysia. The Tribunal found his evidence to be lacking in detail, lacking in credibility, unconvincing and inconsistent with independent country information. There were also a number of inconsistencies in his evidence and his evidence appeared to evolve throughout the course of the Tribunal hearing which raised issues in relation to the veracity and genuineness of his claims. The Tribunal is of the view that he is not a reliable or credible witness for the reasons that follow.
The Tribunal does not accept that the applicant has converted to Shi’a Islam. Despite multiple questions regarding the applicant’s motivation to convert his religion and his process for doing so, the applicant was unable to convincingly outline why he was the only member of his family to convert to Shi’a Islam other than it is more ‘liberal’ than Sunni Islam. When the Tribunal asked the applicant to provide examples of what Shi’a Muslims could do that Sunni Muslim’s could not, he referred to the number of daily prayers Shi’a Muslims make which he said was less. The Tribunal considers these answers to be lacking in detail and credibility that would be expected from someone who had taken a significant decision to convert from the majority religion to a religion that the applicant claims is illegal and considered a cult.
The applicant’s protection visa application does not make any reference to the applicant having converted from Sunni Islam to Shi’a Islam. Instead, it refers more generally to the applicant’s beliefs and practice of his faith. The applicant’s claims in this regard are not consistent with the relevant country information. For example, as discussed with the applicant, while Shi’a Muslims ‘live free from discrimination or violence on a day-to-day basis’, there are limitations on religious freedoms in Malaysia and enforcement efforts generally focused on conversions (to Shi’a Islam) and proselytisers. On this basis, the Tribunal would expect that an applicant that had converted to Shi’a would specifically outline that conversion when making his original claims rather than imply that he held his religion from birth as appears to be the case in the applicant’s written claims for protection.
Similarly, the applicant’s written claims outline death threats and warnings from the Islamic Department. However, the applicant then told the Tribunal that nobody in Malaysia, other than his friend, [Mr A], knew of his conversion to Shi’a and as a result, he did not experience any harm in Malaysia. When the Tribunal raised his written claims of death threats and warnings, the applicant told the Tribunal that these events occurred to a friend and not himself.
Contributing to the Tribunal’s doubt regarding the applicant’s claims is that his claims are virtually identical to another application that came before the Tribunal in 2017. When put to the applicant, he said that the other application was his cousin who copied his claims. While it is possible that the applicant’s cousin copied his claims, when considered together with the Tribunal’s concerns about the applicant’s inability to convincingly discuss his claimed conversion to Islam or his reasons for doing so, overall, the Tribunal finds the applicant’s claims to be lacking in credibility.
Accordingly, and given the applicant provided no explanation for the numerous inconsistencies in his evidence or the concern the Tribunal raised with the applicant about his evidence as it relates to his experience and the Shi’a religion, the Tribunal finds that applicant’s claims regarding his conversion to or practice of the Shi’a religion to be completely lacking in credibility.
It follows, and in line with the applicant’s oral evidence, that the Tribunal does not accept that the applicant has been subject to any harm in Malaysia on account of his religion or for any other reason.
Given the Tribunal does not accept that the applicant has converted to Shi’a Islam, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm if he returns to Malaysia due to his religion or for any other reason.
In sum, the Tribunal finds that the applicant’s claims to have converted to Shi’a Islam and to have received any threats of harm or warnings, or that he would face any harm if he returns to Malaysia due to converting his religion to be completely lacking in credibility and not genuine. The applicant has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm if he returns to Malaysia in the reasonably foreseeable future.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). 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.
Saxon Rice
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.
…

[2018] AATA 3054

2 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction