1705689 (Refugee)

[2018] AATA 1744

1705689 (Refugee) [2018] AATA 1744 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705689

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE:19 April 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 April 2018 at 2:02pm

CATCHWORDS

Refugee – Protection Visa – Malaysia – Ethnicity – Shia Muslims – Fearing physical and mental harm from Sunni Muslims and the authorities – Substantially identical claim as other Malaysian asylum seekers residing at the same address – Failed to address Tribunal's concerns – Claims and evidence lack credibility

LEGISLATION

Migration Act 1958, ss 5H, 5J , 5K-LA 36, 65, 98,101, 424A, 424C, 499

Migration Regulations 1994, Schedule 2

CASES

Emiantor v MIMA (1998) 98 ALD 635

Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
SDAQ v MIMIA (2003) 129 FCR 137
SZQNO v MIAC [2012] FCA 326

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. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 7 November 2016. 

   APPLICANT IDENTITY

3. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 7 November 2016, and the delegate refused to grant that visa on 21 March 2017. 

4. The applicant arrived in Australia on 12 August 2016 as the holder of a [temporary] visa.  The Tribunal has had regard to the Departmental files and the information on which the decision of the delegate, relating to identity, was based.    

5. Accordingly, on the basis of the foregoing evidence, the Tribunal finds that the applicant is a national of Malaysia, and was born on [date].  Having established the applicant’s identity to the Tribunal’s satisfaction, the Tribunal finds that the receiving country with respect to the applicant is Malaysia.  The Tribunal also finds that the applicant does not have a current right to enter and reside in any other country other than Malaysia.  Accordingly, section 36(3) of the Act does not apply to him.

   BACKGROUND

6. The delegate refused to grant the visa on the basis that country information suggested that any discrimination or harassment experienced by Shia Muslims in Malaysia for the essential and significant reason of their Shia Muslim beliefs does not rise to the level that would give rise to an objectively well-founded fear of persecution if the applicant were to be returned to Malaysia now or in the reasonably foreseeable future, and that the Malaysian state would be willing and able to provide adequate protection to the applicant in his particular circumstances.  The delegate further found that the applicant outlines his situation in minimal detail and with no supporting evidence.

7. The Tribunal has had regard to relevant portions of DFAT “Country Information Report: Malaysia”, 19 April 2018.  On the basis of the foregoing, the Tribunal finds that the delegate’s summary of country information relevant to the applicant’s claims for protection is pertinent and appropriate to the applicant’s claims for protection, and accurately summarises the available country information.

8. The Tribunal wrote to the applicant on 23 March 2018, pursuant to s.424A of the Act, in the following terms:

   In assessing your Application for a Protection visa (Form 866C) the Tribunal notes that you have signed the form and declared that the information supplied is complete and correct and up-to-date in every detail.

   In assessing your claims the Tribunal has become aware that your answers to question 89 to 96 are worded in a manner that is essentially identical to the answers provided by other Malaysian asylum seekers residing at the same address and whose claims are also currently before the Tribunal.

   The Tribunal also notes that, you did not answer the question on your application form which asked; “Did you receive any assistance in completing this form?”

   This information is relevant because, given that the answers you have provided are substantially identical other Malaysian protection visa applications lodged by applicants residing at the same address, it raises the question of whether your claims for protection are genuinely held by you. This would, subject to any comments that you wish to make in response, lead the Tribunal to conclude that your claims for protection are not genuinely held by you.

   If the Tribunal finds that your claims are not genuinely held by you, then, on the current information before it, the Tribunal would find that you do not meet the criteria for grant of the protection visa and affirm the decision under review.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 9 April 2018.  If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by 9 April 2018, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 9 April 2018 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

9. On 13 April 2018 the Tribunal received an email from the applicant in the following terms:

   Hi

   I'm just read this email because I'm just recover again my email for this one. What should I do to settle about this problem.  I'm really appreciate if you can do something About this.

10. On 16 April 2018 the Tribunal contacted the applicant by email and advised as follows:

    Thank you for your email.

    Please refer to the letter dated 23 March 2018.  As no response has been received to the information we provided to you by the deadline of 6 April 2018, the Tribunal is currently considering your application for review on the basis of the information before it. If you wish to respond to the information provided to you in the letter of 23 March 2018, you are advised to provide a written response by close of business on Tuesday, 17 April 2018.

11. As at the date of this decision, the applicant has not responded to the foregoing extended invitation to respond.  Accordingly, pursuant to s.424C(2), the Tribunal has proceeded to determine the applicant’s application for protection without taking any further action to obtain the applicant's views on the information.

    RELEVANT LAW

12. The law relevant to this application for review is discussed at Appendix A to this Decision and the Attachment-  Extract from Migration Act 1958.

    CRITERIA FOR A PROTECTION VISA

13. The criteria for a protection visa are set out in Appendix A to this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The Tribunal notes the following extract of the Delegate’s decision record to the applicant, where the Delegate had summarized his claims for protection.  These were as follows:

    ·He is a practicing Shia Muslim and the government is banning Shia activities in the country.

    ·He can’t practice his religion.

    ·He will face trial under Sharia law.

    ·He fears physical and mental harm from Sunni Muslims and the authorities.

15. The Tribunal finds that the delegate’s summary of the applicant’s claims for protection was a fair and accurate summary of the claims for protection notified by the applicant in his original application form, when seeking protection.

16. The Tribunal notes that that the applicant signed his original application form and declared that the information supplied was complete and correct and up-to-date in every detail.  Notwithstanding this, the Tribunal also notes that s.101 of the Act provides as follows:

    A non-citizen must fill in or complete his or her application form in such a way that:

    a)all questions on it are answered; and

    b)no incorrect answers are given or provided.

17. The Tribunal also notes that s.98 of the Act provides as follows:

    A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

18. The Tribunal notified the applicant that his answers to question 89 to 96 are worded in a manner that is essentially identical to the answers provided by other Malaysian asylum seekers residing at the same address as the applicant and whose claims were also currently before the Tribunal.

19. This information was relevant to the Tribunal’s review because, given that the answers the applicant provided are substantially identical other Malaysian protection visa applications lodged by applicants residing at the same address as the applicant, it raises the question of whether his claims for protection are genuinely held by him.  This would, subject to any comments that the applicant might wish to make in response, lead the Tribunal to conclude that his claims for protection are not genuinely held by the applicant.

20. The Tribunal notes that, if it makes findings that an applicant’s claims are not credible, that may lead to the conclusion that the Tribunal does not believe the applicant had a genuinely subjective fear of harm.[1]  Judicial authority provides that, in such cases, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.[2] 

    [1]Emiantor v MIMA (1998) 98 ALD 635. In that case, the Court concluded that the Tribunal had assumed that the applicants had a subjective fear and therefore did not err. On appeal, the Full Federal Court (Emiantor v MIMA, unreported, Federal Court of Australia, Olney, Sundberg and Marshall JJ, 20 July 1998) found that although there was no express finding, in disbelieving the applicants’ evidence, the Tribunal must have concluded that they did not have a subjective fear.

    [2]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim.  On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case.

21. The Tribunal further notes that the applicant has failed to respond to the foregoing information and the concerns put to the applicant in the Tribunal’s letter of 23 March 2018.  This failure by the applicant to address the concerns raised by the Tribunal about the genuineness of the applicant’s claims for protection reflects adversely on the applicant’s claims for protection. 

22. The Tribunal also concurs with the finding of the delegate that the applicant’s application lacks adequate explanation and details regarding his claims and lacks appropriate supporting evidence.  This further reflects poorly on the credibility of the applicant’s claims

23. The Tribunal, therefore, finds that the applicant does not subjectively hold a genuinely well-founded fear of persecution in Malaysia, now or in the reasonably foreseeable future for the essential and significant reason of his Shia Muslim beliefs, or for any other reason, if the applicant were to be returned to Malaysia now or in the reasonably foreseeable future. 

24. The Tribunal further finds, on the basis of available country information, including that which was surveyed by the delegate in their record of decision, that the Malaysian state would be willing and able to provide adequate protection to the applicant in his particular circumstances. 

25. In light of these considerations, the Tribunal has considered each of the integers of the applicant’s claims for protection individually and then cumulatively.  On the basis of these considerations, the Tribunal finds that, taken at its highest, the applicant’s claims and evidence lack credibility, are vague, incomplete and lack an appropriate level of corroboration as discussed above, and do not reach a level that demonstrates the applicant faces either a real chance of serious harm, or a real risk of significant harm, now or for the foreseeable future, if he were returned to Malaysia.

    Findings as to claims considered in this review

    Refugee Criteria

26. The Tribunal's finding on the refugee criterion at s.36(2)(a) of the Act with respect to the applicant, based on the foregoing, is that the Tribunal is not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act.

27. Accordingly, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as outlined at s.36(2)(a) of the Act. As the Tribunal has found that the applicant is not a refugee as defined by s.5H(1) of the Act, no further assessment is required in that regard.

    Complimentary Protection Criteria

28. The Tribunal has considered the applicant's eligibility for protection under s.36(2)(aa) of the Act, which applies where a decision-maker is satisfied that an applicant is a non-citizen in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there is a real risk that the non-citizen will suffer significant harm. 

29. As discussed above in this decision, the Tribunal finds that the applicant does not subjectively hold a genuinely  well-founded fear of persecution if he were to return to Malaysia now, or in the reasonable foreseeable future.  The Tribunal notes that s.36(2)(aa) of the Act refers to a real risk of the applicant suffering significant harm.  The Tribunal notes that the real risk test imposes the same standard as that adopted in the real chance test for the purposes of assessing a well-founded fear.

30. The Tribunal has found above that the applicant does not hold a well-founded fear of persecution if he were to return to Malaysia now, or in the reasonable foreseeable future.  Having considered the applicant's particular protection claims individually and then cumulatively; the Tribunal’s findings relating to the lack of credibility of those claims and the fact that those claims are inconsistent with country information including that surveyed by the delegate in their record of decision, the Tribunal finds that the applicant can obtain protection from the Malaysian authorities such that there would not be a real risk he would suffer significant harm for the purposes of s.36(2)(aa) of the Act. 

31. After considering all of these matters, the Tribunal, therefore, finds that there is less than a real risk the applicant would suffer significant harm as provided s.36(2B)(b) of the Act.  Accordingly, there is taken not to be a real risk that the applicant would suffer significant harm, and the applicant is not a person in respect to whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.

32. For these reasons, the Tribunal finds, that with respect to the applicant, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia that there is a real risk he will suffer significant harm now, or in the reasonably foreseeable future.  Therefore, the applicant is not a person in respect of whom Australia has protection obligations as provided at s.36(2)(aa) of the Act. 

    CONCLUSIONS

33. For the reasons given above the Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations by virtue of s.36(2)(a) of the Act.

34. Having concluded that the applicant is not a person in respect of whom Australia has protection obligations by virtue of s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion at s.36(2)(aa) of the Act.  The Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations, by virtue of s.36(2)(aa) of the Act

35. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act, and who holds a Protection visa.  Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

    The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Dr Colin Huntly
    Member

    
    

    APPENDIX A – RELEVANT LAW

    36.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, the applicant 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.

    Refugee criterion

    37.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.

    38.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.

    39.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).

    40.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 below.

    41.The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[3]

    [3]Chan Yee Kin v MIEA (1989) 169 CLR 379.

    42.If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

    Complementary protection criterion

    43.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’).

    44.‘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.

    45.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

    46.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.

    Applicant credibility

    47.The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[4]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. 

    [4]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

    48.In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[5] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[6]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 

    [5](1996) 40 ALD 445.

    [6]At 482.

    49.The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[7] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[8]

    [7](1996) 185 CLR 259.

    [8]At [25].

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    50.The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it 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, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[9]  Nevertheless, as Burchett J counselled,[10] it is necessary to:

    [9][1997] FCA 1198 ( accessed 15 March 2018).

    [10]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    51.The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[11]  On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[12]  Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.  However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[13]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[14]  The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[15]

    [11]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 15 March 2018).

    [12]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

    [13]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [14]MIMA v Rajalingam (1999) 93 FCR 220.

    [15](1999) 197 CLR 510 at [191].

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    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.

    …