1705690 (Refugee)

1705690 (Refugee) [2021] AATA 381 (28 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705690
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Damian Creedon
DATE:28 January 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(b) of the Migration Act.

Statement made on 28 January 2021 at 2:53pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – interfaith marriage – Muslim marriage to Christian – conversion to Christianity not allowed – no interest for both parties to convert – applicant’s influential father – international human right to marry and maintain individual religion – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 21 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, a citizen of Malaysia, applied for the visa on 2 June 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk she would suffer significant harm..
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
Introduction
The issue in this case is whether the applicant has a well-founded fear of persecution on return to Malaysia or, if not, whether there is a real risk she will suffer significant harm if removed from Australia to Malaysia. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
Background
On 27 January 2021 the applicant’s representative made the following submissions to the Tribunal:
As you are also aware from the record of an associated AAT hearing held into this matter on 16/2/2018 her now husband [Mr A] [Your reference [deleted] strongly disputed that these claims were the instructions either of them gave the person who completed their individual applications. He was advised by the then presiding member to provide details and evidence of what his actual claims were, at least seven days prior to his new hearing which was then eventually set down for 24/4/2018. That hearing was postponed - and was held only very recently where his matter was decided and remitted to the department.
In the applicant’s husband’s ([Mr A])’s review was remitted on 19 January 2021. The Tribunal summarised the background to his case as follows:
a.On 16 February 2018 [Mr A] attended a hearing before the Tribunal, differently constituted. At that hearing [Mr A] made submissions concerning the nature of his claims and the Tribunal concluded the hearing to allow him to seek advice in relation to his application.
b.On 22 March 2018 [Mr A] filed a notice of change of representative with the Tribunal.
c.On 13 September 2018 [Mr A] signed a Form 1023 ‘Notification of incorrect answer(s)’; on that form the applicant claimed the following:
The information provided [in the protection visa application] was not recorded as per instructions to the previous migration agent.
d.The Form 1023 states that the correct information – [Mr A]’s ‘real protection claims’ – are as follows:
In Malaysia relationships and marriage between Muslims and non-Muslims are prohibited under Islamic Law. The visa applicant is currently married to a Muslim woman, [the applicant]. [She] is Muslim. If the couple go back to Malaysia, they will not be able to live as man and wife.
[Mr A]’s submissions to the Tribunal in connection with his case are relevant to the applicant’s case and they may be summarised as follows:
a.[Mr A] claims related to his long-term partner relationship with an ethnic Malay and Muslim, namely the applicant. She is also a Malaysian National. [Mr A] is an ethnic Chinese and Christian.
b.[Mr A] and the applicant came to Australia together as [Mr A] was threatened by the applicant’s father who objected to his daughter being romantically involved with a non-Muslim. The applicant’s father is a well-known [person] in Miri in the East Malaysian State of Sarawak.
c.The couple’s relationship is against Islamic law as practised in Malaysia for Muslims. ‘Khalwat’ in Malay or ‘close proximity’ is policed very strictly by the Malaysian religious police. In Islamic jurisprudence, ‘khalwat’ is a state in which two people, male and female, are alone and, if unmarried, it is a state from which they ought to remove themselves.
d.Religious Department enforcement officers can conduct "checks, surveillance and raids to curtail ‘khalwat’ cases.
e.It is important to note that a Muslim is deemed to have committed ‘khalwat’ even if he or she is in a room alone with a non-Muslim, who does not face any charges.
f.[Mr A] has been threatened with prosecution by the authorities via the applicant's father with the prospect of a gaol term for a breach of the Islamic law ‘khalwat’ if the couple’s relationship continues.
g.The couple have known each other for more than 16 years and were in fact directors of the same [business] in Miri in Sarawak. There we are instructed they carried on the relationship in a clandestine manner so as not to arouse suspicion.
h.After their arrival in Australia the couple have been able to live together freely and are now married - residing together in a suburb [in Australia]
[Mr A] adduced the following evidence in support of his case:
a.A copy of a Marriage Certificate issued by the Government of [State 1][1] certifying the marriage of [Mr A] and the applicant [in] 2018 (marriage certificate); and
b.A handwritten statement made by [Mr A] made on 5 January 2021 in which he states (reproduced as written):
I… came to Australia together with [the applicant] at [date]/12/2015 because we can nomore staying at out home town/Malaysia as I was threatened by her father. I am a christian and [the applicant] & her family are muslim. We knew and love each mother more than 16 years. [The applicant]’s father is a well-known, good reputation & famous [in] our city. He felt shame that if his daughter is going to marry a christian. He forced me to be a muslim otherwise he will call up several policeman and Islamic organisation officer to catch me up and put me to jail. I can’t do that because always remember that my Mum most happiest news is that I believe in jesus.
I and [the applicant] married in Australia since 2017. We can’t go back to Malaysia because the Islamic organisation and relevant department will take action to us as muslim can’t marry to christian in Malaysia law.
[1] Registration Number: [deleted]; Certificate Number: [deleted].
[Mr A]’s oral evidence at the hearing of his matter on 14 January 2021 broadly conformed with his written statement and may be summarised as follows:
a.He and the applicant had been in a romantic relationship for 16 years.
b.The couple had kept their relationship a secret as [Mr A] is a Christian and the applicant is a Muslim.
c.The couple were aware that Malaysian law forbids such a relationship between Muslims and non-Muslims.
d.The applicant’s father was a well-known, highly respected [person] in their hometown;[2] he had threatened [Mr A] with gaol if he ([Mr A]) did not either cease his relationship with the applicant or convert to Islam.
e.[Mr A] did not intend to cease his relationship with the applicant or convert to Islam.
f.In order to continue their relationship more openly [Mr A] and the applicant travelled to Australia in 2015 with the intention of making applications for protection visas.
g.The basis for their claims was not faithfully reproduced by their then migration agent. Upon discovering this they changed their migration agent sought to correct the record.
h.The couple were married in [State 1] [in] 2018.
i.Were they to return to Malaysia their marriage would not be recognised, and [Mr A] feared that he would be the subject of persecution for their relationship.
[2] The applicant provided the Tribunal with photographs [and evidence] in respect of [the applicant]’s father.
Analysis
The Tribunal found in [Mr A]’s case that if he were to return to Malaysia, the applicant would return with him. The Tribunal makes a corresponding finding in the applicant’s case, that if she were to return to Malaysia [Mr A] would accompany her. The Tribunal has carefully considered the evidence of their relationship and subsequent marriage. The Tribunal accepts that [Mr A] and the applicant are in a genuine relationship. Having regard to the evidence before it, the Tribunal also accepts that [Mr A] and the applicant were married for reasons other than solely to strengthen the applicant’s claims for protection.
The Tribunal accepts that [Mr A] is a Christian man of Chinese ethnicity on his testimony, his written claims and his name. On the basis of the copy of the marriage certificate the Tribunal accepts that [Mr A] married the applicant, who the Tribunal finds, on the basis of Tribunal and Department records, is a Muslim woman of Malay ethnicity whose family lives in Miri in the East Malaysian State of Sarawak.
The most recent assessment of Malaysia prepared by DFAT states:
Article 3(1) of Malaysia’s Constitution states Islam is the ’religion of the Federation; but that other religions may be practised in peace and harmony in any part of the Federation’. Article 11(1) states every person has the right to profess and practise her religion and, subject to clause (4), to propagate it.
The government automatically classes individuals born in Malaysia of Malay ethnicity as Muslim. Some indigenous persons have adopted Islam, but many choose to practice traditional spirituality or Christianity. Ethnic Chinese Malaysians are generally Buddhist, Christian, Taoist, practice traditional Chinese folk religion and ancestor worship, or do not follow a religion. The majority of the ethnic Indian Malaysian population practise Hinduism, although a significant minority practises Christianity.
According to the most recent census in 2010, Muslims comprise 61.3 per cent of the population, Buddhists 19.8 per cent, Christians 9.2 per cent, Hindus 6.3 per cent, and Confucianism, Taoism, and other traditional Chinese religions 1.3 per cent. Other minority religious groups include animists, Sikhs, and Baha’i. Rural areas, especially in the east coast of peninsular Malaysia, are predominantly Muslim, whereas the states of Sabah and Sarawak have relatively higher numbers of non-Muslims. Media estimates approximately 75 per cent of Malaysian Christians live in Sabah and Sarawak, around 65 per cent of whom are indigenous Orang Asli.
While the Constitution guarantees freedom of religion, the practice of religions other than Sunni Islam is subject to some constraints. Laws such as Selangor state’s Non-Islamic Religions (Control of Propagation amongst Muslims) Enactment (1988) control and restrict the propagation of other religions, including non-Sunni versions of Islam. The UN Special Rapporteur in the field of cultural rights raised concerns over a trend of growing religious intolerance in Malaysia in September 2017.The Malaysian Constitution specifies Islam as the religion of the Federation but states that other religions may be practiced in peace and harmony in any part of the Federation
…
The religious status of Muslims is recorded on their birth certificates and on their national identification cards. National identification cards do not distinguish between Sunni and Shi’a Muslims. Cards identify Muslims by religion on their surface. Other religious affiliations are not reflected on the surface of the card, but are encrypted on a smart chip instead. Married Muslims must carry a photo identification of themselves with their spouses as proof of marriage. This requirement has reportedly been enforced in practice, particularly in the northern states. Some vigilante groups have also attempted to enforce these and similar requirements, in accordance with Islam. According to media reporting in November 2018, a controversial Kedah-based anti-vice ‘Badar Squad’ had pressured Malaysian authorities to impose stricter controls over budget hotels and massage parlours after the Squad conducted raids in Sungai Petani, Kedah, to capture Muslim couples believed to be ‘engaged in sin.’
Malaysia has a two-track legal system: common law, administered at the federal level; and Syariah based law, administered at the state level, which varies by jurisdiction. In June 2019, however, the office of the Islamic Affairs Minister announced that the National Council for Islamic Affairs had agreed on a proposal to standardise syariah criminal laws in all states. Although the proposed changes had not yet come into effect at the time of publication, it is envisaged that a uniform set of syariah criminal laws would be made by making amendments to the existing provisions, as well as adding new provisions to the Syariah Criminal Offences (Federal Territories) Act.[3]
[3] DFAT Country Information Report Malaysia 13 December 2019, 3.23 – 3.29.
The assessment continues:
Several syariah-based laws apply to Muslims at the state level. State governments do not recognise marriages between Muslims and non-Muslims and children born of such marriages are considered illegitimate. DFAT is aware of cases where one spouse has (after marriage) converted to Islam, and subsequently claimed that non-Muslim family members have lost all rights to inheritance and custody of children. In January 2018, the Federal Court ruled that both parents had to consent to change a child’s religion (see Family Law). While it is relatively common for individuals to convert to Islam in order to marry a Muslim, families in some communities may view this negatively.[4]
[4] DFAT Country Information Report Malaysia 13 December 2019, 3.68.
And again:
The government does not recognise marriages between Muslims and non-Muslims and considers children born of such marriages illegitimate.[5]
[5] DFAT Country Information Report Malaysia 13 December 2019, 3.78.
A September 2015 Law Library of Congress report on interfaith marriage in countries with Islamic law systems states that sharia law in Malaysia prohibits marriage between a Muslim and non-Muslim, except in the instance of marriage with a Kitabiyah:
The marriage laws that govern Muslims in Malaysia largely prohibit Muslim-non-Muslim marriages. For example, section 10 of the Islamic Family Law (Federal Territories) Act 1984 states: “(1) [n]o man shall marry a non-Muslim except a Kitabiyah. (2) No woman shall marry a non-Muslim.” Kitabiyah essentially refers to a “person of the book.” In practice, the marriage of Muslim men to non-Muslim women is also highly restricted due to the definition of who constitutes a Kitabiyah in the legislation:
“Kitabiyah” means – (a) a woman whose ancestors were from the Bani Ya’qub; or
(b) a Christian woman whose ancestors were Christians before the prophethood of the Prophet Muhammad; or
(c) a Jewess whose ancestors were Jews before the prophethood of the Prophet Isa.
Most state Islamic family laws contain the same or similar wording regarding Muslim-non Muslim marriages as the federal statute. In addition, Malaysian state laws on apostasy make it an offense to convert out of the Muslim faith, and such conversion must be authorized or confirmed by a Syariah (Shari’a) Court, so conversion in order to marry a non-Muslim partner is generally not an option.[6]
[6] Prohibition of Interfaith Marriage’, The Law Library of Congress, September 2015, pp.13-14,
The report goes on to highlight that:
Muslims in Malaysia also cannot marry under the civil marriage law. Section 3 of Law Reform (Marriage and Divorce) Act 1976 clearly excludes marriages involving a Muslim party, stating that “[t]he Act shall not apply to a Muslim or to any person who is married under Muslim law and no marriage of one of the parties which professes the religion of Islam shall be solemnised or registered under this Act . . . .”
It appears that interfaith marriages, where they do not involve a Muslim party, are permitted under the 1976 Act. Marriages under the Act may be solemnized in the office of a registrar or “in a church or temple or at any place of marriage in accordance with section 24 at any such time as may be permitted by the religion, custom or usage which the parties to the marriage or either of them profess or practice.” Section 24 allows religious officiants to be appointed as assistant registrars and to solemnize marriages “if the parties to the marriage or either of them profess the religion to which the church or temple belong, in accordance with the rites and ceremonies of that religion.” The Malaysian courts have found, for example, that where there is no religious impediment to a marriage there can be a valid contract of betrothal and marriage.[7]
[7] Prohibition of Interfaith Marriage’, The Law Library of Congress, September 2015, pp.13-14,

The Tribunal has had regard to the relevant law in Sarawak, the couple’s home area. It states that if a man or woman are found in ‘[a]n act preparatory to sexual intercourse out of wedlock’ – that is, alone in a house or room where it is suspected they were engaged in immoral acts may be convicted and fined three thousand MYR or imprisoned for two years or both.[8] The Tribunal’s researches suggest that the law has been the subject of recent prosecutions in Sarawak: see Dayak Daily ‘Two couples detained for khalwat’.[9] The DFAT assessment notes that each state has similar Syariah enactments, though the penalties vary. Each state also has Syariah Family Law provisions which apply to Muslims but which can affect their relationship ‘status’ with non-Muslims.
[8] SYARIAH CRIMINAL OFFENCES (FEDERAL TERRITORIES) ACT 1997, s.24,
[9] (accessed 28 January 2021).
The Tribunal finds, on the basis of the DFAT assessment and the Law Library of Congress report, that [Mr A] and the applicant are unable to legally marry (because marriage between a non-Muslim man and a Muslim woman is prohibited under State Syariah laws)[10] or to register their Australian marriage in any State in Malaysia. Further, even if The applicant converted to Christianity (which the evidence is that she does not intend doing) her conversion from the Muslim faith would not in any event be recognised in Malaysia meaning the couple could never register their marriage under the law that applies to Christian citizens.
[10] As explained in Minority Rights Group International report “Ethnic and religious discrimination big challenge for Malaysia’s minorities, published 12 April 2011: “The stringent laws on religious conversion involving Islam have a major impact in cases of inter-marriage. Muslims cannot marry non-Muslims in practice. Although there is an exception for Muslim men to marry 'Kitabiyah' (people of the book), the definition of a 'Kitabiyah' in Malaysia is almost impossible to prove (where for example a woman must prove he is Christian and her ancestors were Christian before the prophethood of Muhammad). A non-Muslim must therefore convert to Islam to marry a Muslim.”
The Tribunal finds that the way in which Syariah laws and the civil laws operate in Malaysia means that, if [Mr A] and The applicant return to Malaysia now or in the reasonably foreseeable future, they would be forced to hide their relationship whilst in public, and would risk discovery and prosecution for Khalwat, which may include jail or fines, and expose the couple to constant and ongoing social stigma and harassment due to the ‘illegitimacy’ of their relationship. They would never be in a position to register their marriage or be open about their personal relationship.
The Tribunal finds that the only means by which their relationship could be legitimised would be if [Mr A] converts to the Muslim faith and they marry as Muslims. The Tribunal accepted his oral evidence in support of his application that he will not do this. The Tribunal accepts, based on the detailed DFAT country information referred to above, that conversion from the Muslim to the Christian faith for the applicant is virtually and practically impossible in Malaysia in circumstances such as the applicant. Even the process of applying for permission to convert would make the applicant vulnerable to charges of apostasy, involuntary detention for re-education by State Religious Departments and to associated prosecution for breaking Syariah laws, with penalties including fines, caning and jail. It would also expose [Mr A] to possible charges of proselytising and attempting to convert his partner to Christianity with serious potential penalties.
The potential persecutors are the religious authorities of Malaysia and potentially the police and courts, as well as conservative Malay Muslim communities. The Tribunal finds that effective protection is not available to the applicant in Malaysia because the persecutors are authorities in each State, and the federal Government of Malaysia does not often intervene in issues relating to religion, s.5J(2) therefore does not apply. As noted above, religious departments and courts are present in each State and Syariah law applies to Muslims in every State of Malaysia.
Having carefully considered the information before it, the Tribunal finds that the applicant fears being persecuted for reasons of religion. Further, the Tribunal finds that religion is the essential and significant reason for the harm feared. She fears persecution because she has married and is in a relationship with a Christian man against the religious laws applied to her as a Malay Muslim. The persecutory conduct in this case will include serious harm, including the potential for imprisonment or a significant fine, societal discrimination and denial of access to services. The lawful punishment here is not appropriate and adapted because the right to marry and found a family is a fundamental right under international human rights law.[11] Her marriage will not be recognised by the Malaysian authorities and the couple risk punishment under Malaysian religious laws for this reason. The persecutory conduct will involve systematic and discriminatory conduct in that it will be directed towards the applicant for the purpose of enforcing the religious laws in relation to inter-faith marriage and targeting those who do not comply. The applicant satisfies s.5J(1)(a).
[11] ICCPR Article 23.
The Tribunal finds, on the country information, that there is a real chance, that is, one that is not remote, that the applicant on returning to Malaysia, would be persecuted for reasons of religion, by the state religious authorities or other agents of the state, and she therefore satisfies s.5J(1)(b).
The Tribunal finds, on the country information, that the real chance of persecution relates to all areas of the receiving country, because her marriage and relationship will not be recognised in any State of Malaysia, and there are punishments for illegitimate relationships in all States. She satisfies s.5J(1)(c).
The Tribunal has considered whether the applicant could take steps to ameliorate the harm feared. She could. But such steps would include denying her marriage and relationship to [Mr A]. The Tribunal notes that the right to marry is a fundamental right under international human rights law.[12] The Tribunal finds that the steps which he would be required to take would conflict with a characteristic that is fundamental to the person’s identity or conscience; that is, her marriage to [Mr A] and their relationship, and would conceal an innate or immutable characteristic of the person. The reasonable steps are therefore prohibited by s.5J(3)(a) and (b).
[12] ICCPR Article 23.
Having considered all of the information and taking account in particular of the DFAT assessment and other credible country information, the Tribunal finds that the applicant faces a real chance of persecution for reasons of her religion and that of [Mr A], from religious authorities and agents of the Malaysian State if she returns to Malaysia now or in the reasonably foreseeable future
Conclusions
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Damian Creedon
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.
…

[2021] AATA 381

28 January 2021

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Immigration

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