1705953/1705955 (Refugee)

1705953/1705955 (Refugee) [2017] AATA 2891 (10 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  1705953/1705955
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Tania Flood
DATE:10 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant either applicant a protection visa.

Statement made on 10 November 2017 at 10:52am
CATCHWORDS
Refugee – Protection Visa – Malaysia – Religion – Muslim – Love marriage – Second named applicant’s family disapprove of the marriage – Second named applicant ’s family threatens to harm husband – Second named applicant family threatens forced marriage – Credibility issues – Inconsistent statements made by both applicants
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A)-(2B), 65, 424aa, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on [date 1] and [date 2] March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas on [date] November 2016 and [date] December 2016 respectively. The applicants claim to be married and their claims are related.
The applicants were refused visas on [date 1] and [date 2] March 2017 respectively.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicants will suffer serious harm on return to Malaysia for reason of their race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to Malaysia there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Summary of claims
In their separate applications for Protection visas the applicants claimed the following:
They met and fell in love at first sight and decided to get married.
Both families did not agree with, or bless their marriage.
As time passed [the second named applicant]’s family began threatening [the first named applicant] because they wanted her to marry another person whom she did not love. [The second named applicant] was also slapped by her [uncle] over this.
[The second named applicant]’s [uncle] tried to harm [the first named applicant] by paying goons to brutally beat him up. [The first named applicant] managed to escape as [the second named applicant] informed him earlier about it.
Later they decided to flee to Australia to look for a brighter future and for the safety of their relationship.
If they return to Malaysia [the second named applicant] will be forced to marry another person without her consent and will be treated badly after marriage. [The first named applicant] fears he may be killed or disfigured by her family.
The authorities won’t protect them because [the second named applicant]’s [uncle] has links to the police, politicians, public servants and high ranking members of society.
Tribunal hearing
The applicant’s appeared before the Tribunal on 13 October 2017 and consented to a combined hearing. The Tribunal took evidence from both parties separately.
First named applicant
The first named applicant testified that he was born in Kajang, Selangor, Malaysia but last resided in [Town 1], Selangor where he lived with his wife (the second named applicant) for approximately four to five months. He is ethnic Malay and a Muslim. He claims he was only educated to primary level grade two and worked in his father’s [shop] and sometimes [in another role]. His parents are divorced and living in separate locations in Kajang and [Town 1].
The applicant testified that he fears he and his wife will be separated if they return to Malaysia by his wife’s father because he does not approve of their marriage. On the other hand, he said that his parents accept their union. When asked why his wife’s father does not approve of the marriage he stated that previously his wife had a fiancé and her father is still trying to get her to marry him.
The applicant testified that he married his wife on [date] January 2014 in Kotabaru in a religious ceremony. He said he has a marriage card to prove it. The applicant stated that his mother and [sibling] attended the wedding as did his wife’s grandmother and neighbours. He said his wife’s mother was not at the wedding ceremony but she joined them the following day.
The Tribunal asked whether anybody tried to stop them from marrying before the ceremony and he said not at the time but later her father tried to separate them. When asked why his wife’s father did not try to stop the marriage before it was too late the applicant stated that her father didn’t know the wedding was taking place because his wife’s parents are divorced. He said her father found out much later when he went to visit her at her grandmother’s house where she was living before they married. It was only then that he was told she had married him. He said that his wife’s grandmother telephoned them to warn them her father was looking for them.
The applicant testified that the problems with his wife’s family commenced in approximately mid-2015, about a year before he left for Australia. He said his wife’s father told him she had a fiancé she was supposed to marry. He said his wife’s father telephoned him and said they should separate. The Tribunal asked the applicant whether that was all that happened and he replied “yes”. When the Tribunal pointed out that his written claims indicate her family tried to brutally beat him he said that never happened. When asked whether her father physically came to their house he replied “no”. He also confirmed his wife has never been physically harmed by her family for reason of marrying him.
The Tribunal asked the applicant how they met and he said it was through their families. When asked what he knows about her family he said he doesn’t know anything about them. The Tribunal indicated that this seems strange because his written claims indicate his wife’s family are politically connected and linked to people in authority. He replied that only his wife knows about this.
When asked what he fears will happen if he returns to Malaysia the applicant stated that he and his wife might be separated and he might be beaten up by her father. When the Tribunal pointed out that this had not happened before he re-stated that he is scared it could happen in future.
When asked if he fears returning to Malaysia for any other reason the applicant stated that he comes from a poor family and needs to earn some money to help them.
Second named applicant
The second named applicant testified that she was born in Klang, Selangor but before coming to Australia she lived in [Town 2] (next to [Town 1]) with her husband. Her parents are divorced and she has a stepfather and a step sibling. She is ethnic Malay and a Muslim. She completed her high school education and worked for approximately six months [in] Malaysia.
The applicant testified that she fears returning to Malaysia because her father wants to separate her from her husband. When asked why, she said that her father didn’t agree with her marrying because he wanted her to study and not marry young. Also he wanted her to marry somebody who is at the same educational level as herself.
When asked if her father knew about the wedding when it took place she said he found out about it at the last minute, however, he did not give her away. He gave that honour to his cousin. The Tribunal asked the applicant whether she had ever been engaged to another person and she replied “no”. She confirmed that this was not the reason for her father’s opposition to the wedding. The Tribunal asked why her father didn’t try to stop the marriage going ahead if he was so opposed to it and she replied that he argued with her mother about it before the wedding but in the end he felt he had no choice. However, he prevented her mother from attending the wedding.
The applicant testified that the wedding took place on [date] January 2014 in Kotabaru. She said it was a religious ceremony and that she was issued with a marriage card.
The applicant testified that it was only after the wedding that her father started making a lot of problems for them. When asked what happened she said that her father kept harassing her and saying he would take her away from her husband. She said he came to where they lived but she wasn’t there and he met her husband. She said her father wanted to hit him and told him to divorce her. She said that her father threatened and physically hit her husband a few times. She said this occurred in Kuala Lumpur where she was working. She said they moved to other places but he found them there and the same thing happened. However, she said that her father never physically harmed her. The Tribunal asked whether any other member of the family had physically harmed her for this reason and she replied “no”. The Tribunal pointed out to the applicant that her written claims state that her [uncle] slapped her very hard for this reason. She replied that he did so because she went against her father’s wishes and because her father hit her husband. When the Tribunal pointed out that she appeared to be changing her evidence about this she said that she thought the Tribunal was asking her whether she had been kicked or something similar.
The Tribunal asked the applicant whether she and her husband had reported the physical violence to the police and she replied “no”. She said she wanted to report him but didn’t have the heart to do it because he is her father.
The Tribunal asked the applicant what her father’s occupation is and she said that he is ill and just stays at home. Before this she said he did different jobs but she doesn’t really know the detail because she lived with her mother. When asked about the occupations of her cousin and other members of her father’s family she said they do different things in Kelantan. The Tribunal put it to the applicant that her written claims state that her family is linked to the police and high ranking dignitaries and that her description of their activities doesn’t appear to support this. She then stated that her father and uncle are elders in the village.
During the hearing and subject to the requirements of s.424aa of the Act the Tribunal put the following information to both applicants for their comments on or responses to it:
The oral evidence of the first named applicant is that:
-Before he married the second named applicant she was engaged to another person and her family are trying to force her to marry him;
-The second named applicant’s father didn’t know anything about the marriage at the time it took place; he only found out about it much later when he tried to visit her at her grandmother’s house;
-The second named applicant’s father only ever threatened him over the telephone and he was never physically beaten by her father;
-The second named applicant was never physically harmed by her family.
The Tribunal explained to the applicants that this information is relevant because it is inconsistent with the following information provided by the second named applicant at hearing. Namely that:
-She was never engaged to another person and the reason her father opposed the marriage is because he thought she was too young to marry and should continue her studies;
-Her father knew about the wedding and allowed it to proceed despite not agreeing with it;
-Her father physically hit her husband several times;
-She herself was slapped by her uncle.
The Tribunal explained to the applicants that if it were to rely on the above information it could form the view that their evidence is not credible which could lead the Tribunal to reject their claims and affirm the decision.
The Tribunal invited the applicants to comment on or respond to the information and advised them that they could seek additional time to do so if required and their request would be considered. The applicants opted to respond verbally.
The second named applicant stated that everything she told the Tribunal is the truth. She said she does not know what is included in the application form because she is not familiar with English. She said that if she returns to Malaysia she will be forced to divorce and she will be separated from her husband.
The first named applicant responded that he was physically hit but he didn’t remember this. When asked why he said it is because he has had many arguments with people in the past. He apologised for the omission and said he was too embarrassed to reveal that he had had many arguments with people. He added that he was scared.
FINDINGS AND REASONS
Country of reference
Attached to the Departmental files are copies of the applicants Malaysian passports which verify their claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts they are nationals of Malaysia and has assessed their claims against Malaysia.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. The Tribunal accepts that if an applicant’s account appears credible he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant.
The Tribunal has considered the applicants’ evidence, however as discussed above and below, in areas of critical importance to their claims to need protection, their evidence was significantly inconsistent. This has caused the Tribunal to doubt the veracity of their claims. The reasons for this finding are as follows:
Central to the applicants’ claims is that the second named applicant’s father opposed their marriage and wants to separate them. Their written claims state that the second named applicant’s family wanted her to marry another person whom she did not love. At the hearing the first named applicant corroborated this claim stating that his wife was previously engaged to another person and her family were trying to force her to marry him. However, at the hearing the second named applicant provided an entirely different reason for her father’s opposition to their union. That is, she claimed that her father did not want her to marry because she was too young and he wanted her to do further study. The Tribunal specifically asked her if she had ever been engaged to another person and she denied that was the case.
When the above was put to the applicants pursuant to s.424aa of the Act neither applicant responded specifically to this matter despite being provided the opportunity to do so. By way of a general response the second named applicant responded that her oral evidence was truthful and she does not know what is written in the application form because she is not familiar with English. The Tribunal is not persuaded by this response because at the outset of the hearing the applicants were asked whether they completed their application forms themselves. They responded that they sought assistance from another person to complete the forms but they personally provided their reasons for needing protection and responded affirmatively when asked if the contents of their applications were read to them before signing the documents. Whereas the first named applicant’s oral and written evidence was generally consistent the Tribunal can see no reason for the second named applicant providing a contradictory answer as to whether she was promised in marriage to another or being forced to marry another person, other than to conclude that the written claim is fabricated.
Secondly, when questioned about the wedding day, the applicants gave inconsistent evidence as to the second named applicant’s father’s knowledge of the marriage ceremony. Whereas the first named applicant stated he knew nothing about it until much later the second named applicant stated that her father knew the wedding was taking place and although he opposed it he did nothing to interfere with the proceedings on the day. The second named applicant provided evidence about an argument which took place between her mother and father prior to the wedding which reinforces her claim her father was well aware of the wedding plans. The first named applicant maintains that her father found out about the marriage accidentally when he attempted to visit his daughter at her grandmothers. Again, neither applicant responded specifically to this matter when it was discussed with them at hearing pursuant to s.424aa of the Act despite being provided an opportunity to do so.

Thirdly, the applicants evidence as to what past harm they encountered from the second named applicant’s family was also significantly inconsistent. Whereas the first named applicant stated he was only ever verbally threatened by his wife’s father over the telephone the second named applicant stated that her father visited their home and encountered her husband there and physically struck him there and at other locations, including in Kuala Lumpur. Furthermore, the first named applicant testified that his wife was never physically harmed by her family whereas their written claims and the second named applicant’s oral evidence is that she was slapped very hard by her uncle. When this was put to them at the hearing pursuant to s.424aa of the Act the first named applicant stated that he did not remember being physically hit by the applicant’s father because he has had many arguments with different people in the past. He then gave what appears to be a contradictory response stating that he was too embarrassed to reveal that he has had arguments with people and lastly he was scared when answering the Tribunal’s questions. Earlier in the hearing when the second named applicant was asked if she was ever physically harmed she initially responded in the negative but later changed her evidence when prompted by the Tribunal and said she was slapped by her uncle. Her reason for the differing evidence was that she did not think that a slap was physical harm but as the Tribunal stated at hearing, it is not persuaded by this response.
The Tribunal has considered the applicants responses outlined above but is of the view they do not overcome the concerns which arise from their inconsistent evidence. The Tribunal finds it significant that the first named applicant was willing to reveal the difficulties he encountered with his wife’s family in his written claims, including his escape from a brutal beating at the hands of his wife’s uncle. Given this, the Tribunal is not persuaded that embarrassment caused him to omit the fact that he was physically hit several times by her father. Throughout the hearing the first named applicant claimed repeatedly that he was scared he would be physically harmed by his wife’s father if he returns to Malaysia but when the Tribunal pointed out that his evidence did not support he had been harmed in the past he still made no mention of the physical violence claimed by his wife. As to whether his evidence was affected by him being scared at the hearing, the Tribunal observed him to answer the questions put to him with relative ease and did not observe him to be ill at ease with the proceedings.
The applicants’ written claims indicate that the police won’t protect them because the second named applicant’s [uncle] has links to the police, politicians, public servants and high ranking members of society. At the Tribunal hearing the first named applicant claimed no knowledge of this and the second named applicant provided only vague details about the occupations and activities of her family members.
The Tribunal acknowledges the applicant’s provided consistent evidence as to the date and place of their wedding. Both indicated at hearing that they were issued with a marriage card. The first named applicant informed the Tribunal that their marriage card was in his possession here in Australia. The Tribunal notes that the applicants’ written claims indicate that both their families were opposed to their union but at the hearing the first named applicant stated that his parents had no problem with the marriage. Since the hearing, and despite the credibility concerns raised with them at hearing, neither applicant has provided a copy of their marriage card to the Tribunal. In view of the credibility concerns raised above, and in the absence of any further evidence, the Tribunal cannot find with any certainty that the applicants are married.
For all the above reasons the Tribunal is of the view the applicants have fabricated their claims for the purpose of obtaining a migration outcome.
The Tribunal finds the applicants claims are not truthful and rejects all of their claims in relation to their claimed marriage. The Tribunal finds that there is not a real chance or a real risk the applicant’s will suffer serious or significant harm at the hands of the second named applicant’s family if they return to Malaysia now or in the reasonably foreseeable future for the reasons claimed.
The only remaining issue is whether the first named applicant’s claim to be from a poor family raises any protection obligations for Australia. As discussed with the applicant at hearing the Malaysian economy is reportedly stable averaging growth rates of 5.7% since 2010 (World Bank April 2017) and the unemployment rate is just 3.3% as of December 2015 (DFAT Country Information Report, Malaysia, 19 July 2016). According to the World Bank Malaysia is classified as an upper middle-income economy and DFAT reports that Malaysia’s economic growth has led to a significant reduction in poverty with the share of households living below the poverty line falling from 50% in the 1960s to 0.28% in 2016. Poverty rates for ethnic Malays are a low 0.8%.
In light of the current economic climate the Tribunal is not satisfied that the first named applicant will suffer economic hardship on return to Malaysia such that it would amount to serious harm as explained at s.5J(5)(a-f) of the Act or to significant harm as defined in s.36(2A) and s.5(1) of the Act.
CONCLUSIONS
Having considered both applicants claims individually and cumulatively, for the reasons given above, the Tribunal finds that neither applicant has a real chance of being seriously harmed for any of the reasons provided if they return to Malaysia now or in the reasonably foreseeable future. The Tribunal finds that neither applicant has a well-founded fear of persecution. Accordingly, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a) of the Act the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of either applicant being removed from Australia to Malaysia, there is a real risk that either applicant will suffer significant harm. Therefore the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that either 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 applicants do not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decisions not to grant either applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2891

10 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal

Natural Justice