1705396 (Refugee)

1705396 (Refugee) [2020] AATA 815 (4 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705396
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Tamara Hamilton-Noy
DATE:4 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 February 2020 at 11:39am
CATCHWORDS
REFUGEE – protection visa – Malaysia – real or imputed political opinion – member of Coalition for Clean and Fair Elections – fear of police, jail and death – three other similar applications before tribunal may cause doubt about truthfulness of claims – new claims raised at tribunal hearing – fear of harm from family and village elders because of extra-marital affair – fear of war between Malaysia and the Philippines – credibility – delay in applying for protection – unable to provide detailed evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 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 on 13 December 2016. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether she is 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 of such a person.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant is a [age] year old female who travelled to Australia on a Malaysian passport. She has at all times maintained that she is a citizen of Malaysia. The Tribunal accepts that the applicant is a Malaysian citizen and has assessed her claims against Malaysia as her country of nationality.
The Tribunal finds that the applicant does not have a right to enter and reside in any other country.
Claims for protection
The applicant arrived in Australia [in] June 2016 on an electronic travel authority visa. She lodged a written claim for protection on 13 December 2016.
In her written protection application, the applicant stated that she had left Malaysia because the government of Malaysia is tracking the group members of Bersih and she is a Bersih member (described in the written protection claim as ‘group the caution for clean and fair election’). The Minister for Home Affairs, Ahmad Zahid Hamidi, said Malaysians who are unhappy with the country’s political system should leave the country. This statement was after a series of street demonstrations led by opposition parties and many groups were imprisoned and the media had hidden this issue. She decided to seek refuge. She is concerned that if she returns to Malaysia the police will catch her and put her in jail, so her life is ‘of course in dangerous’ and she hopes the Australian government will help her. As to whether she believes she will be harmed or mistreated if she returns to Malaysia, in her written protection application the applicant stated that for a long time it will affect her and her family and that due to this political issue she will be questioned and most of the Bersih will be detained because of this sensitive political issue.
The applicant did not attend a Department interview. The delegate found that the applicant’s claims were vague and that she had provided no evidence to support her claim. The delegate found that as the applicant was able to obtain a passport she was not of interest to authorities in Malaysia. The delegate found that the applicant was not at risk of harm for her political activities or for any other reason.
The applicant was invited to attend a hearing at the Tribunal on 4 November 2019. Prior to the hearing, the Tribunal wrote to the applicant under s.424A inviting her to comment on particulars of information, namely that the Tribunal had before it three other protection applications on identical terms. The Tribunal’s letter noted that in the other applications, the other applicants had also claimed that: they left their country because the government of Malaysia is tracking the group members of Bersih; that they are one of the Bersih members (“group the caution for clean and fair election”); that their Minister of Home Affairs Ahmad Zahid Hamidi had said Malaysians who are unhappy with the country’s political system should leave the country; that this statement was after a series of street demonstrations led by opposition parties; that many groups were imprisoned; that the media has hidden this sensitive issue; that the applicants decided to seek refuge and safety and thanks to the Australian government; that if they return to Malaysia the police will catch them and put them in jail so their life is in a ‘dangerous matter’ and they hope the Australian government will help them; that for a long time it will affect them and their family; and that due to this political issue they will be questioned and most of the Bersih members will be detained because of this sensitive issue.
The Tribunal’s letter noted that that the similarities between the applicant’s claim and the other claims may lead the Tribunal to not accept that the applicant left Malaysia because of her involvement in the Bersih movement, that the police may catch her and detain her or put her in jail upon return, or that her life is in danger. The Tribunal noted that if it relied on this information, it may cause the Tribunal to doubt the truthfulness of the applicant’s claims and may cause the Tribunal to not accept that the applicant has a well-founded fear or persecution if she returns to Malaysia or that there is a real risk she will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia. The Tribunal noted that this would be the reason, or part of the reason, why the Tribunal would affirm the decision under review. The applicant was given 14 days to comment on the information.
No response was received in relation to this letter, however, the applicant responded to the Tribunal’s hearing invitation, stating she would attend the hearing.
The Tribunal hearing was conducted on 6 November 2019. The applicant gave evidence at the hearing on affirmation and the Tribunal was assisted at the hearing by a Malay interpreter. The applicant was not represented at the hearing
At the hearing the applicant told the Tribunal that she was born in Kota Kinabalu, Sabah, Malaysia. She has not travelled to any countries other than Australia. Her father and mother are in Malaysia. She has siblings who she thinks are in Malaysia but she is not in much contact with them. She has one cousin in Malaysia who she keeps in touch with.
The applicant stated that her parents are farmers. She was born in [Location 1], but her parents moved some time ago to [Location 2], about 10 kilometres away. She did not live there with them before she came to Australia, but stayed in Kota Kinabalu because of problems in the village. She had attended primary school and high school in Malaysia, up to Form [number]. After that she helped her family with farming work, planting rice, bananas and coconut.
The applicant told the Tribunal that she was married in 2002 to [Mr A] who is now living with her in Australia. They have two children, [one] who is [age] and [another] who is [age].
The applicant stated that she had asked someone to help her fill out her protection application. After receiving the Tribunal’s letter a friend read the letter and explained it to her and she realised that what the person had put in her application was not what she had told them to fill in. The Tribunal asked about the protection application and the applicant stated that a person she knows always helps people with visa applications. A friend introduced her to him. The Tribunal asked the applicant whether she had known what was put in the application form and she said that lately a friend of hers had explained the reasons there.
The Tribunal asked about the delay between the applicant arriving in Australia in June 2016 and the protection application being lodged in December 2016. The applicant stated that she had given her part of the visa application early to this person and he had delayed lodging the visa.
The Tribunal asked the applicant why she had come to Australia in June 2016 and she said that at that time she needed to run away because of pressure from her family. She was already married but was unfaithful to her husband and could not take the pressure from her family. [Mr A] told her to leave first and then he came later. The Tribunal asked the applicant what her family had done to make her leave Malaysia and she said that they were following conservative laws, according to their tradition. The punishment would be prison, or putting her in a cane basket and throwing her into the river.
The Tribunal asked the applicant about the affair she had had and she stated that it happened in December 2015 with a Malaysian man called [Mr B]. She was unable to recall [Mr B]’s family name. They had a Christmas festival in the village [Location 3] and were drinking and didn’t realise what they were doing.
The applicant stated she is Christian. Her parents are pagans and ‘follow their ancestors’. The applicant stated that she became a Christian when she was [age]. Her husband became Christian after they were married. They were married in her home by a village leader, [Mr C].
The Tribunal asked the applicant about the Christmas festival where she stated she had met [Mr B]. The applicant said that her husband was there also, but the people in the village live in long houses and she wasn’t aware where they were after becoming drunk. They just slept anywhere. She had an affair once and it was found out because they were too drunk and got up late, and people opened the doors and they were still there.
In response to further questions by the Tribunal the applicant stated that she had not had problems with her family prior to this. The Tribunal observed that the applicant had said earlier that she hadn’t moved with her family because of problems with her family and she stated in response that she thinks she misunderstood. She moved out from her family after this incident, and moved away from the family house, because the village people wanted to have a meeting and discuss her punishment.
The applicant stated that she had married in 2002 and lived around the same area but with her husband; the villages are all close by. Her parents were in the same village. The Tribunal asked about her earlier statement that she had ‘moved out from her family’ and she said that this was from her parents. The Tribunal asked why she had been living with her parents and she said that what she had meant was that she did not live with her parents but their houses were close by and she had left that village. She had gone to [Location 4], three and a half hours by car. After that the village elders still tried to find her and pushed her husband to find her because they wanted to have a meeting with her. They were also pagan and have no religion and follow their ancestors. The Tribunal observed that in Malaysia people are registered as Muslim unless they state they are not and the applicant stated in response no, ‘pagan is pagan’.
The Tribunal asked why the village elders would look for the applicant if she was three and a half hours away and she said it is because they follow pagan traditions and no matter where she is they will search for her. They told her that even if she went to the peninsula of Malaysia they would look for her there. This was because she was going against traditional law, where a woman sleeping with a man is forbidden; and that this had happened before. The Tribunal asked the applicant for examples of what had happened before and she stated she can’t remember when and to whom.
The Tribunal asked the applicant who she fears harm from if she returns and she stated she is afraid of the village leader who told all the village people if they see the applicant to report her whereabouts. The Tribunal observed that this incident had occurred some three years ago and the applicant stated in response that things won’t change as long as she’s alive. The Tribunal asked the applicant why she can’t live in another area of Malaysia and she said because the peninsula and Sabah are very close.
The Tribunal asked the applicant why she could not obtain protection from the police and authorities and she said because they have all the proof and the police can’t get involved, and will follow whatever proof the village leader gives them. There is nobody to support her or help prove the incident happened outside of her control.
The Tribunal asked about ‘[Mr B]’ and the applicant stated that he lives in a neighbouring village and during that time came for the party. The Tribunal asked about the festival and the applicant stated there were too many and she can’t count. The Tribunal asked about activities during the festival and the applicant said that there was traditional dance, drinking and eating. As to what was worn by the dancers she said she doesn’t know how to describe it, but it is ‘baju traditional’, with a sarong and a head dress for the women and boys in full pants, a coat and with beads. The local drink ‘tapai’ was made, and foods included rice and pork.
The Tribunal asked again about [Mr B] and the applicant said that when they were all drinking together her husband was in a different section to her. The Tribunal asked how the applicant had ended up in a house with [Mr B] and she said that she was drunk and didn’t know where she went to sleep; she woke up and he was beside her. The person who owns the house discovered them. During the festival she had gone to sleep and no one was disturbing them. As to how she didn’t know which house she was in because she was drunk but was able to remember that no one had disturbed her, she said that she didn’t know when [Mr B] had come in but woke up and he was there; if she goes back to the village she doesn’t know where to go. As to why she had fallen asleep in another house rather than her own home, she said that whenever there is a festival, after the festival people go to sleep anywhere.
The Tribunal observed that the applicant was saying that it is practice at the festivals to sleep anywhere but the society is so conservative that she would be accused of adultery, and she said in response that this has never happened before; [Mr B] is from a neighbouring village and came and took advantage of her.
The Tribunal asked how soon after the incident the applicant had moved three hours away. She said that a week after the incident there was a meeting to decide her punishment and they came to her house and told her. The leader of the village had told her father. She attended three meetings and they said it was impossible it could happen if both parties did not agree. She doesn’t know where [Mr B] is and doesn’t know whether he was punished over the incident. The decision that was made was to put her in a cage and throw her in the river. As to why she couldn’t stay in the location three hours away she said that they can still find her, because the village leader asked JKKA to find her. This is a body that helps village leaders that is part of the government, and she thinks the village leader is appointed by the government.
The Tribunal asked how the applicant knew people were looking for her and she said because she is in touch with her cousin and sometimes he tells her. She asks whether there is still an inquiry and he tells her there still is. She checks quite often with her cousin, once to twice a week, by telephone and on [communications app] messages. The Tribunal asked to see the applicant’s phone and her [communications app] messages reflecting her queries about ongoing interest in her and she stated that she usually asks on the phone and when she asks about her children she uses [communications app] texts. If she is going to ask about her case she calls her cousin, because sometimes he doesn’t understand what she is saying. Her children are in Malaysia with her parents and her cousin is helping financially.

The Tribunal observed that the applicant had given evidence that she had had a falling out with her parents but that they had been looking after her children for three years and she said in response that they don’t want her but are taking care of her children. There is no one else to take care of the children.
In relation to the written protection application the applicant stated that she didn’t understand what had been written in the document. The man had said to sign it and he would return everything. The Tribunal observed that it may have difficulty accepting the applicant could not live away from her village and she said they can still find her even if she is on the peninsula of Malaysia. She stated that she was born in [Location 1], her parents are in [Location 5] and the Christmas festival in question was in [Location 1], in the long houses.
The Tribunal sought to clarify with the applicant that her written claims were not correct and she was not a Bersih member. She stated that ‘before this’ she was a member but all her claims related to the peninsula of Malaysia. She was involved in demonstrations but can’t remember when. The Tribunal asked whether she was ever arrested or questioned by authorities and she said yes and was told if they demonstrate they will be caught.
The Tribunal noted the applicant had earlier said her written claim was wrong but now seemed to be saying it is correct. The applicant stated in response that if she was to read it by herself she would not understand, but what her friend translated back to her all related to the peninsula of Malaysia.
The Tribunal discussed relevant country information with the applicant during the hearing, including a Human Rights Watch World Report for 2018. Information in the most recent DFAT report was not relevant to the claims raised by the applicant.
The Human Rights Watch World Report for 2018 states that there has been a new government in Malaysia as of 2018, with an election platform to improve Malaysia’s human rights record and that no Bersih members have been investigated following the change of government, suggesting that the new government is not pursuing former protestors.[1] The applicant stated in response that the government is not looking for all people who demonstrated but now there is an internal war in Sabah. In 2013 people from the Philippines attacked Sabah and she doesn’t know how many people were killed but they have said they will attack again.
[1] Human Rights Watch, World Report 2018, Malaysia at
The Tribunal asked why the applicant had not raised concerns about the Philippines earlier and she said that the reasons she had left Malaysia were to get away from her family and because of the political attack by the Philippines, because her village is very close to the Philippines. The Tribunal asked the applicant to clarify that she had not left because of Bersih protests and she said that when she told him to fill in the form, the first thing he was supposed to write was the family matter and the second was political issues. The Tribunal asked what political issues and the applicant said ‘both of them’, the Bersih demonstrations and the threat from the Philippines.
Findings of the Tribunal
The Tribunal accepts that the applicant was born in Sabah, Malaysia. The Tribunal accepts that the applicant was married in 2002 and that she has two children of the marriage who are currently living with her parents in Sabah.
Claims regarding Bersih protests
The applicant’s written claims for protection were identical in nature to a number of other claims before the Tribunal. The applicant was asked at the Tribunal hearing why she had left Malaysia and told the Tribunal it was due to family pressure. It was only towards the end of the hearing that the applicant, when asked to clarify that her written claims for protection were not correct, gave evidence that she had also participated in Bersih protests. The applicant was unable to give any details of the demonstrations she states she attended and she did not give evidence of being of ongoing interest to authorities as a result of her participation in any Bersih demonstrations.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The closeness of the applicant’s claims to a number of other claims before the Tribunal and her inability to provide any details of the protests she states she was involved in leads the Tribunal to have significant doubts that the applicant left Malaysia because of any involvement in the Bersih movement. The Tribunal finds that the applicant was not a Bersih member and was not involved in Bersih protests in Malaysia. The Tribunal finds that the applicant would not participate in protests if she returns to Malaysia in the reasonably foreseeable future. The Tribunal finds that there is not a real chance the applicant would be at risk of imprisonment, detention, questioning, physical harm or mistreatment if she returns to Malaysia in the reasonably foreseeable future.
The Tribunal finds that there is no real chance the applicant faces serious harm for reasons of her political opinion or imputed political opinion if she returns to Malaysia in the reasonably foreseeable future.
Claims regarding an affair with ‘[Mr B]’
The applicant claims that she was unfaithful to her husband and fears harm from elders in her village because of this. She stated that she had left Malaysia because of pressure from her parents and that her parents don’t want her.
The applicant was unable to provide detailed evidence about the Christmas festival she states she attended. Her evidence of having lived in a conservative society was inconsistent with her evidence that it was common practice to hold Christmas parties where people drink alcohol and commonly sleep in other people’s houses. The Tribunal was not satisfied that the applicant attended a Christmas party in her local village where it was common practice to drink alcohol and sleep in other people’s houses.
The applicant stated to the Tribunal that she knows she is still wanted by village elders because she is in touch with her cousin by [communications app] and on the phone. When the Tribunal asked the applicant to show it [communications app] messages referencing ongoing interest by the village elders, she then stated that such discussions occur only over the telephone. The Tribunal does not accept the applicant’s cousin has informed her that there is an ongoing inquiry into her past activities.
The applicant raised the new claims relating to an affair with a man, ‘[Mr B]’, for the first time at the Tribunal hearing. She gave evidence of having given the person who completed the protection application information about her circumstances and was unable to explain why this information had not been included in her written protection application.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
The implausibility of the applicant’s claims about having had an affair with [Mr B] after drinking too much at a Christmas party, in combination with her failure to raise this claim earlier, lead the Tribunal to have significant doubts about the credibility of her evidence. The Tribunal is not satisfied that the applicant had an affair with a man ‘[Mr B]’ in her home village or that village elders are seeking to harm her as a result. The Tribunal is not satisfied that the applicant had left her village or that the village elders had tried to find her or had asked the JKKA to find her. The Tribunal is not satisfied that the applicant attended meetings to decide her punishment.
The Tribunal is not satisfied that the applicant had a falling out with her parents as a result or that she faces pressure from her family as a result of an affair.
The Tribunal finds that there is no real chance the applicant faces serious harm for reasons of a past affair with ‘[Mr B]’ if she returns to Malaysia in the reasonably foreseeable future.
War between the Philippines and Sabah
The applicant claims to fear harm due to living close to the border of the Philippines. As noted above, section 423A of the Act provides circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.
The Tribunal notes that, while there is some media attention around tensions between the Philippines and Malaysia over Sabah, the Tribunal has been unable to identify any information stating that tensions are set to increase in the foreseeable future.[2] The Tribunal finds that current tensions between the Philippines and Malaysia do not amount to serious harm. The Tribunal finds that there is not a real chance the applicant faces serious harm for reasons of tension between the Philippines and Malaysia if she returns to Malaysia in the reasonable foreseeable future.
[2] ‘Sabah’s legal fraternity tells Manila to drop baseless claim and to move on’, 12 September 2019, The Star Online at
Having considered the applicant’s claims cumulatively, the Tribunal is not satisfied that there is a real chance the applicant faces serious harm if she returns to Malaysia now or in the reasonably foreseeable future, for any reason.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
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.
Based on the findings above, the Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm upon her return to Malaysia at the hands of the authorities because of her political views, from village elders, from her parents or her family, or because of any conflict between the Philippines and Malaysia. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm as defined in subsection 36(2A).
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.
Tamara Hamilton-Noy
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 815

4 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice