1706008 (Refugee)

[2021] AATA 3440

1706008 (Refugee) [2021] AATA 3440 (12 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1706008

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:12 July 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 12 July 2021 at 10:25am

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – LGBT women – economic conditions – employment opportunities – return visit to Malaysia – family violence – rejection by family – late raising of a claim to the Tribunal – credibility concerns – long-term same-sex relationship – partner abandoned the Muslim faith – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5AAA, 5H, 5J, 5L, 5LA, 36, 65, 423A
Migration Regulations 1994, Schedule 2

CASES

MIAC v MZYYL [2012] FCAFC 147
MMM v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324

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 and Border Protection on 6 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is [an age]-year-old Malaysian citizen. She is from Sabah, Malaysia.  She is Catholic and identified herself as ethnically Chinese and Indigenous Borneo.  She is not married and has no children.

3. She arrived most recently in Australia [in] July 2016 on a UD-601 Electronic Travel Authority visa. She travelled to Australia alone. She had previously travelled to Australia on a UD-601 Electronic Travel Authority visa [in] August 2015.  She was granted a [temporary] visa on 2 November 2015 and departed Australia [in] January 2016.  Before the Tribunal she confirmed she had returned to Malaysia at that time.

4. She has one brother in Australia who was also an applicant for a protection visa.  That application was not before the Tribunal. Information before the Tribunal indicated the applicant’s brother’s visa had been refused by the Department of Home Affairs (the Department) and affirmed by the Tribunal, differently constituted. He remains in Australia.  The Tribunal notes that the applicant’s claims did not relate to her brother.

5. Prior to coming to Australia, she was living in Sabah with her family.  Her parents remain in Sabah and are not working.  In addition to her brother in Australia, she has [number of] sisters living in Sabah.

6. She applied for a protection visa on 4 October 2016.

   Issues

7. The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s.5J(1)(a) for the purpose of s.36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

8. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CLAIMS AND EVIDENCE

   Protection claims

   Protection visa application

9. The applicant initially presented her claims in her protection visa application in which she states, in summary, that:

   ·She left Malaysia because of political and economic issues. There were no jobs to support her family and herself.

   ·A friend ([named]) suggested that she come to Australia.

   ·She has applied for jobs in Malaysia but failed because of the economic and political issues.

   ·Malaysia has a bad economy.

10. The applicant submitted a copy of her Malaysian passport issued [in] 2015 to the Department. No further evidence was submitted to the Department.

11. The applicant was not interviewed by the Department in relation to the application.

    The delegate’s decision

12. The delegate refused the visa on 3 March 2017.  The applicant provided a copy of the delegate’s decision to the Tribunal with her application for review.

13. The delegate refused the visa on the basis they were not satisfied that there is a real chance that, if the applicant was returned to Malaysia, she will be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s.5H and the criterion in s.36(2)(a) of the Act was not satisfied.

14. The delegate found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Malaysia, there is a real risk that she will suffer significant harm. Accordingly the applicant was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.

    Review application

15. The applicant filed her application for review on 24 March 2017.

16. The applicant initially appeared before the Tribunal on 24 September 2020 and again on 8 March 2021 to give evidence and present arguments.

17. The hearing on 24 September 2020 was held by telephone.  The hearing was held during the COVID-19 pandemic.  At the time the hearing was conducted, the Tribunal registry was closed and the Tribunal was not undertaking in-person hearings.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns regarding the conduct of the hearing by telephone.  At that hearing the Tribunal discussed with the applicant whether there were any changes to her claims and the information on which she was seeking to rely in support of her claims.

18. The hearing on 8 March 2021 was held in person at the Perth registry. 

19. The hearings were conducted with the assistance of an accredited interpreter in the English and Malay languages. The applicant was not represented in relation to the application to the Tribunal. 

20. At the hearing on 24 September 2020 the applicant confirmed that the summary of her claims contained in the delegate’s decision, which the Tribunal read to the applicant at the hearing, was a fair and accurate summary of her claims  When asked if she had any additional claims she outlined the following additional claims:

    ·When she first arrived she didn’t know too much about how to apply and her English wasn’t very good so she didn’t know how to fill out the form so she got a friend to help her.  Her friend asked her what her claims were and she told her friend about her financial problems.

    ·She claimed that on top of her financial problems she was always frowned upon because she is a lesbian and she presents as a tomboy and that affected her being able to make a living for herself.

    ·She said she told her friend this and they asked her to sign it and she did but that was a mistake on her part because she didn’t ensure the claims were true and complete. She only realised this when she received the notification of decision letter. She tried to call the friend but was unsuccessful.

    ·She said she was waiting for her hearing to tell the Tribunal about this issue.

    ·She said she came to Australia because she was abused and could not live her life like other people.  She felt people were disgusted, she felt tortured and her soul was stressed.

    ·She said there were times when she felt stressed and depressed because the people around her, including her parents, did not accept her and she considered ending her life.

    ·She said she also was threatened by a man called [Mr A] because she had an affair with [Mr A’s] wife.

21. Prior to the hearing on 8 March 2021 the applicant submitted the following material to the Tribunal:

    ·A signed letter from the applicant dated 24 February 2021 attaching an article titled ‘Malaysia: Government steps up attacks on LGBT people’ from Human Rights Watch (2014) and submitting that the article shows that ‘Malaysia government is not in favour of LGBT person and being Lesbian my whole life make it so hard to live in Malaysia’.

    ·A signed letter dated 24 February 2021 from [name], Director, [Employer 1], confirming the applicant had been employed by the [business] since June 2019 and that she has ongoing employment as long as she wishes.  The letter notes she is a ‘very good, valued worked [sic]’ and that she is ‘very reliable and a very pleasant person’.

22. In her submissions the applicant claimed to fear returning to Malaysia because:

    Malaysia government is not in favour for LGBT person and being a Lesbian in my whole life make it so hard to live in Malaysia.

23. At the hearing on 8 March 2021 the applicant told the Tribunal she had a same-sex partner in Australia with whom she had been living for almost 5 years. She said that her partner was also from Sabah and was an applicant for protection. The Tribunal indicated that it would like to take evidence from the applicant’s partner and that it may be that a combined hearing would be scheduled with the consent of both applicants.  The hearing was adjourned and the Tribunal indicated the applicant would be notified that a further hearing was to be held.

24. Following the hearing the Tribunal identified the applicant’s partner’s application before the Tribunal.[1]  After an initial hearing in that matter a combined hearing was held on 2 June 2021.  Both the applicant and her partner separately consented to the combined hearing.

    [1] Tribunal Case [Number]

25. Prior to the combined hearing the applicant submitted the following documents:

    ·A notice of intended marriage in the name of the applicant and her partner valid until [a day in] July 2018;

    ·A lease agreement in the name of the applicant and her partner dated [in] December 2018 [and] November 2020;

    ·Photographs of the applicant and her partner;

    ·Text message exchanges between the applicant and her partner.

26. Following the combined hearing the applicant submitted evidence relating to her relationship with her partner in Australia, including:

    ·A letter dated 11 June 2021 from [the Landlord], the applicant’s landlord, indicating the applicant and her partner have rented the property since December 2018 and are the only tenants and a document indicating [the Landlord] has a home insurance policy for the applicant’s address and a water bill for that address;

    ·Licence and registration documents for the applicant and her partner indicating they have the same residential address.

27. The applicant’s claims for protection and the evidence on which she was seeking to rely were discussed at the hearings. This information and the applicant’s oral evidence to the Tribunal at the hearings are discussed further below.

28. The Tribunal notes that it discussed with the applicant at the hearing what was then the current Department of Foreign Affairs and Trade (DFAT) Country Information Report: Malaysia dated 13 December 2019 (the 2019 DFAT Report) in considering the claims raised in the application. On 29 June 2021, DFAT released an updated country information report for Malaysia – the Country Information Report: Malaysia dated 29 June 2021.  The Tribunal considered the content of that report with respect to the applicant’s claims.  The Tribunal considers that the general content of the report as it relates to the applicant’s claims is consistent with the 2019 DFAT Report and with other country information discussed at the hearing.  Relevant country information is discussed further below.

    Applicant identity and country of reference

29. The applicant claims to be a citizen of Malaysia. As noted earlier, the applicant provided a copy of her Malaysian passport to the Department.  The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.

30. The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purposes of the refugee and complementary protection assessments.

    DECISION MAKING FRAMEWORK

    Criteria for a protection visa

31. 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.

32. 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.

33. 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).

34. 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.

35. 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).

36. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

37. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

38. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

39. 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.

40. ‘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.

41. 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.

42. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Credibility assessments

43. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. 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.[2]

    [2] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36] –[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.

1. The courts have made it clear for some time 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.[3]  Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4]

   [3] 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, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (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.

   [4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

2. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[5] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not 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.[6]

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

   [6] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

3. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[7] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[8]

   [7] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].

   [8] See, for example, the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]-[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.

4. Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held.

5. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear, there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[9]

   [9] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

6. The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.  In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, in particular [8], [13], [17]–[19] and [27]–[28].

   Mandatory considerations

7. 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, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

8. The Tribunal discussed with the applicant at the hearing the 2019 DFAT Report in considering the claims raised in the application. The Tribunal also considered the most recent DFAT Report dated 29 June 2021. As noted above, the Tribunal considers that the information contained in the most recent report is in similar terms to and consistent with the 2019 DFAT Report such that it raised no new issues with respect to the application for review.

   CONSIDERATION

9. In her application and at hearings before the Tribunal the applicant claimed to fear harm on several bases.  The Tribunal considered each of the integers of the applicant’s claims for protection individually and then cumulatively.

10. As noted above, the applicant’s claims at the hearing changed significantly, principally with the introduction of claims relating the applicant’s lesbian or LGBT[10] status.

    [10] The Tribunal notes the applicant referred to her ‘LGBT’ status and the Tribunal has adopted this terminology except in relation to country information where the term LGBTI is more commonly used.  

11. At the first hearing the Tribunal explained to the applicant the obligations in s.5AAA and the requirements of s.423A. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

12. The Tribunal explained that s.423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

13. During the hearing, the Tribunal discussed with the applicant her background, her family, her education, where she lived, her employment history in Malaysia and Australia, her prior travel to Australia, her sexual orientation, why she left Malaysia, her relationships in Malaysia and Australia and why she fears returning to Malaysia. There were several inconsistencies between some of her claims in her application for a protection visa and her oral evidence to the Tribunal. This raised concerns in relation to the credibility of those claims. These included in relation to her employment history, family circumstances and prior travel to Australia. These are discussed further below.

    Economic or related claims

14. In her application for protection, the applicant claimed she could not return to Malaysia because she would be unable to find a job due to economic conditions in Malaysia and would be unable to support herself financially.  She confirmed these claims at the first hearing and added that she had borrowed money in Malaysia which made her financial situation worse.

15. The Tribunal had a number of concerns regarding the credibility of the applicant’s original claims to have feared harm as a result of economic problems in Malaysia.

16. The Tribunal was concerned in particular that the applicant failed to articulate any real basis to fear serious or significant harm on return to Malaysia due to the state of the economy in Malaysia in her application or at the hearings.  To the extent she articulated concerns regarding employment those were linked in her evidence regarding her claimed treatment by her employer directed at her as an LGBT person.

17. Further, when the applicant was questioned about her application for protection it was clear from the testimony the applicant gave at the hearings including the account of her personal history and family connections in Malaysia that questions in the form had not been completed accurately and that significant information, including the applicant’s employment history in Malaysia, had been omitted. The Tribunal also raised with the applicant and her partner a concern that their answers to the questions in their application forms regarding their claims for protection (questions 89-96) where almost identical yet they claimed not to have known each other at the time the applications were lodged. This caused a concern regarding the veracity of the information and claims contained in the application.

18. At the second hearing the applicant told the Tribunal that a friend, [Mr B] from Malaysia helped her with the application.  She didn’t know his last name but she thought he had gone back to Malaysia.  She said he asked her what she wanted to say on the form and she summarised and he wrote it down. She said she didn’t check information from the Department’s website and she needed a friend to help her.

19. The Tribunal asked what she told her friend her fears were and she said she told him about the economic problems facing her in Malaysia. Even though she was working really hard and was consistently employed she was not earning enough money to support herself. She said that at that time she didn’t tell him ‘that my LGBT impacted my ability to subsist’. When the Tribunal asked why she said she didn’t know. She said, ‘I thought you cannot disclose on the form that you are LGBT I thought I would get into trouble.’ The Tribunal asked why she thought that and she said that she was told that the Department was not going to be interested in her personal circumstances and she should talk about the bigger problems she faced in Malaysia.

20. The Tribunal took the applicant to question 101 on Part C of her application for the visa where she was asked if she had assistance from anyone to complete the application and she had ticked no.  The Tribunal asked why she had ticked no when [Mr B] helped her and she said she didn’t understand it.  The Tribunal put to her that she would have understood making the application was a serious thing and that it was important that she was accurate and she said she knew that but at the time she was ‘in over my head’. She said [Mr B] wrote it and submitted it.

21. The Tribunal asked about the previous trip she had made to Australia from August 2015 to January 2016.  The Tribunal asked what the trip was for and she said that a friend who knew she was having problems in Sabah told her to consider going to Australia. She said she wasn’t giving it much thought but then she decided to come.  Her friend was already here having holidays during Ramadan. She said she could have a holiday and work and that there was an opportunity for work.

22. She said she came through an agent who was going to find her work.  When she got here she was [doing specified work] but when she was working through an agent she wasn’t earning enough money and the wages were very low. She said she was stressed about money she owed in Sabah and she wasn’t able to cover her costs in Australia, and that was why she went back to Sabah again. She said she had to go back at that time because she had procured a loan and had to pay the debt off in full and she didn’t want her family to be hassled.

23. The Tribunal asked why she came back [in] July 2016 and she said that when she went back to Malaysia she applied everywhere and kept looking for work but she couldn’t get any work and her debts were accumulating.  She thought that the second time would be better than before.

24. The Tribunal asked what work the applicant had previously been doing in Malaysia and she said she worked for [Employer 2] for 11 years from around 2005 to 2015.  She said that she tried to hold the job at [Employer 2] for as long as she could but while working at [Employer 2] she faced a lot of stress.  She said, ‘I was frowned upon and looked upon with discrimination.’ She said she didn’t get promoted and that made her stressed because it was about her appearance and the fact she was LGBT. She sad she couldn’t be part of the management team because of this.  She claimed that whenever there was a work function she was rostered on to look after the branch. The Tribunal asked if she raised this with [Employer 2] and she said she tried to but they said she was not yet eligible for promotion. The Tribunal asked if [Employer 2] has an LGBT policy and the applicant said they did not.

25. She said she did a better job than others, sacrificed time with her partner and became so down she ‘was hoping a lorry would run into me’ when she was driving home. She said her superiors undermined and underestimated her capacity at work.

26. Based on the applicant’s evidence before the Tribunal, the Tribunal considers that she did not articulate any subjectively held fear of serious harm on return to Malaysia due to the generally articulated claims arising from ‘economic or political issues’ in Malaysia or because of monies owed in Malaysia.  Rather based on her evidence the Tribunal finds the reason for her fear of return to Malaysia is that she would be a member of a particular social group in that country, namely; LGBT women in Malaysia.  The Tribunal has assessed her claims on that basis. 

    LGBT related claims

27. At the hearing the Tribunal asked why the applicant came to Australia she said ‘I came to a county that would accept me and I wouldn’t have to pretend.  I don’t want to always be judged by the community and be less than anyone else.’

28. She said she had problems with her family and siblings. She said her father didn’t like her and she would stay with her girlfriends to get away. She told the Tribunal that before she came to Australia she was living with her family but before that she tried to stay outside the house because her dad didn’t like her.  She said he was abusive and caned her.  He said as long as she was not married, he has the ability to hit her. She said he knew she would never get married because she was LGBT. She would live with girlfriends for a time and their families would find out and she would be compelled to go back home.

29. The Tribunal put to the applicant that the fact she had not raised these claims and details in her application for protection may cast doubt on the credibility of the claims.  She said that she just put down what was in her head.

30. The Tribunal asked if she had suffered harm in Malaysia due to being LGBT and she said that before coming to Australia in 2015 she was with a woman, [Ms C], who was separated from her husband and when her husband found out he was enraged and he put a [social media post] threatening her.  She said the family and siblings of her partner at that time were threatening her and saying they would come to her place. She said she thought she met [Ms C] at a karaoke contest. She was the sister of her ex-girlfriend and she was one of the contestants. She said she started seeing [Ms C] in around 2013/2014 and they were together around 2 years.  She said that they broke up in late 2014 because she was scared of the husband who had been in prison because he was drink driving and hit someone. That was when she met [Ms C].

31. The Tribunal put to the applicant that the fact she came to Australia around this time and then returned to Malaysia might suggest she was not fearful of [Ms C]’s husband.  She said he was in jail at the time.  The Tribunal put to the applicant again that the fact she returned to Malaysia at that time might cast doubt on a claim that she feared harm from [Ms A’s] husband on returning to Malaysia. She said she was scared but she was not in a relationship with [Ms C] anymore. She said she didn’t want to go home because is fearful of her father and she doesn’t want to pretend that she is not a lesbian. She said she didn’t want to live in her own house because he had been physical before.  She said that after she broke up with [Ms C] she had not had any other relationships in Malaysia.

32. She said she had not been in a long term relationship; she said if she wanted to stay with her partners she would have to stay with their families and they don’t like people like her. She said a previous girlfriend’s parents didn’t like her appearance. They blamed her because the girlfriend didn’t want to get married because she ‘turned’ her.

33. The Tribunal asked if she lived with [Ms C] and she said she couldn’t stay long with her because [Ms C]’s father was a person of interest so she did not feel safe and they couldn’t be at her parents’ house because her father ‘would go nuts and not react well’.

34. The Tribunal asked if the applicant was involved in the LGBT community in Malaysia and she said she wasn’t because she was worried her father would find out and be angrier with her. She said, ‘I am indeed lesbian, I don’t need the world to know.’  She said in Australia she can be herself and she doesn’t have to pretend.  She said she was moved when same-sex marriage was sanctioned in Australia.

35. The Tribunal explained that there were limits on the sorts of harms a protection visa was designed to address.  The criteria for the visa reflected the obligation on countries like Australia to protect people from certain kinds of harm but there was no general obligation to protect people fleeing violations of economic, social or cultural rights.  The fact that a person may enjoy less favourable social, economic or cultural rights in another country does not of itself give rise to an obligation on Australia not to return a person to their country.  Rights such as the right to enter into a same-sex marriage would seem to fall into that category as it was difficult to see how being denied the right to marry would amount to serious or significant harm.

36. The applicant said she met her current partner in November 2016. She said she knew of her through friends in Sabah but they had not met yet.  When she arrived in Australia they were working at the same place and started going out in January 2017.  They have lived together for around 5 years.

37. She said she hadn’t told her family about her partner, but her brother in Australia was aware and she thought he didn’t like it. She said she is in contact with her younger sister.  She said if she talks to her parents they will ask if she has changed her life. Her sister knows about the relationship but she feels her sister might be a lesbian as well and she is almost [age]. 

38. The Tribunal asked what she feared would happen to her if she returned and she said it would be hard to find a job because of her age.  She said she would have to go back to her parents’ home and she is scared of her dad who says that as long as she is not married he has full rights over her.  She said he last hit her when she was 23. The Tribunal put to her that she had lived for a significant period in Malaysia and not been harmed and she said that she moved around and didn’t live at home.

39. The Tribunal asked whether she would live with her sister and she said she lived in government accommodation through her work.  She said she would not be able to afford to live elsewhere in Malaysia. She said she wasn’t making enough money in Malaysia and was scared to go out at night.

40. The Tribunal asked who the applicant thought she was at risk from in Malaysia and she said her father.  When asked to describe the experiences in Malaysia that made her fear returning to where she lived before coming to Australia she said that the LGBT community at large is not accepted in Malaysia. She said she would not be able to get a job because she would be discriminated against.

41. The Tribunal has reviewed the country information, including the two most recent DFAT Country Information Reports on Malaysia relating to the treatment of the LGBTI community.  The Tribunal notes the United States Department of State, Country Reports on Human Rights Practices for 2020 with respect to Malaysia which contains information consistent with the DFAT reports.

1. The Tribunal discussed that information with the applicant at the hearing in general terms.[11] Adult same-sex acts are illegal in Malaysia regardless of age and consent. Numerous state-level Syariah-based laws also prohibit both same-sex relations and non-normative gender expression.[12] However, prosecutions in relation to LGBTI activities have not been common. When they have occurred in recent times they have been in relation to state-based Sharia legislation rather than federal law.  In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor Syariah law criminalising ‘unnatural sex’ was unconstitutional, with the power to make laws with respect to such offences being reserved to the Malaysian Parliament.[13]

   [11] 2019 DFAT Report see paras [3.130] – [3.131]; 2021 DFAT Report see paras [3.134] – [3.147]; 2020 Country Reports on Human Rights Practices: Malaysia, US Department of State, 30 March 2021, pp 35-36.

   [12] 2019 DFAT Report at [3.130]; 2021 DFAT Report at [3.134].

   [13] 2021 DFAT Report at [3.134].

2. The former BN government was strongly opposed to the ‘promotion’ of LGBTI issues, and had committed to a 5-year action plan to address ‘social ills’ that focused to a large degree on the LGBTI community. The action plan included rehabilitation programs for LGBTI individuals, prevention seminars for parents and students, and enforcement of laws and policies prohibiting the ‘public glamorisation of the LGBTI lifestyle’, including through restricting the online space for LGBTI activities and individuals. The 2021 DFAT Report notes the current PN coalition ‘is even less well-disposed towards LGBTI activities and individuals.’ [14]

   [14] 2021 DFAT Report at [3.136].

3. The 2021 DFAT Report notes [at 3.137] that:

   While successive governments’ stances on LGBTI issues apply to all within Malaysia, including foreigners, they are especially pronounced for Malays/Muslims due to the fact that a variety of LGBTI behaviours constitute Syariah offences as well as offences against the penal code. Human Rights Watch reported in 2019 that the increased political competition in the Malay heartland, ‘presumed to be socially and religiously conservative, [had] caused politicians from across the political spectrum to emphatically adopt anti-LGBT positions.’ In-country sources report the conditions for transgender Malaysians are worsening and that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition.

4. The Tribunal notes that in September 2018 Sharia court in Terengganu sentenced two women to be given six strokes of the cane and pay a fine of 3,300 Ringgit after being convicted of allegedly attempting to have sexual intercourse. The caning, which was carried out in a court room in front of one hundred witnesses, was reportedly the first such sentence to be awarded in relation to LGBT related cases since 2010.[15] Authorities at federal and state levels also promoted so-called rehabilitation or education programs aimed at changing sexual orientation or gender identity and risk aversion therapy.[16]

   [15] 2019 DFAT Report at [3.134].

   [16] 2019 DFAT Report at [3.135]; 2021 DFAT REPORT at [3.141].

5. There is a strong social taboo against LGBTI issues in Malaysia, particularly among Muslims. Many members of the LGBTI community are reported to hide their identities to avoid harassment, ostracism and violence.[17] There have been reports of family violence by members towards LGBTI individuals and society will generally place blame for such violence on the individual for provoking it through identifying as LGBTI.[18]

   [17] 2019 DFAT Report at [3.138]; 2021 DFAT Report at [3.143].

   [18] 2019 DFAT Report at [3.138]; 2021 DFAT Report at [3.143].

6. DFAT notes that:[19]

   The level and frequency of discrimination faced by members of the LGBTI community differs according to their socio-economic status, religion, geographic location and degree of openness. Well-educated urban LGBTI individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas. Sources report society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah. Sources told DFAT most transgender individuals from Sarawak and Sabah relocate to Kuala Lumpur for employment (almost exclusively in the private sector) and to escape discrimination.

   [19] 2021 DFAT Report at [3.146] see also the 2019 DFAT Report at [3.140].

7. DFAT assesses that LGBTI individuals face a moderate risk of both official and societal discrimination which may include being subjected to prosecution, re-education, exclusion from public spaces and employment opportunities, and/or familial or societal violence. These risks are higher for Malay/Muslim LGBTI individuals, for transgender individuals, and for LGBTI individuals located in poorer and rural areas. DFAT assesses LGBTI civil society organisations are generally able to operate unhindered but high-profile work and leaders may be targeted.[20]

   [20] 2021 DFAT Report at [3.147]; see also 2019 DFAT Report at [3.141].

8. The Tribunal is satisfied based on country information that there is likely to be societal discrimination and ostracism directed towards the applicant on the basis of her sexuality in Malaysia. The Tribunal also accepts that the applicant’s father may have been violent towards her on occasions when she has been living at home.  The Tribunal is satisfied that the applicant is apprehensive about living with her own family who have been disapproving of her sexual orientation. She is also concerned about discrimination from other members of society, including in the workplace.

9. The country sources indicate discrimination in housing and jobs against LGBT people, as well as rejection from families and community members. However, absent other considerations, the Tribunal considers that such harm does not reach the level of ‘serious harm’ envisaged by the Act. The Act provides that the following are instances of serious harm:

   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.  

   These are indicative kinds of harm and there may be other kinds of serious harm giving rise to a claim for protection. However the listed examples of harm in the legislation indicate that the legislators intended that the harm be of a serious nature. The Tribunal is not satisfied that unofficial instances of discrimination and ostracism, while unpleasant, would reach this level of serious harm.

10. The Tribunal is also not satisfied based on the country information and the applicant’s own work history in Malaysia that the applicant would not be able to find work or access services because of her sexual orientation alone, although there may be some instances of discrimination. Giving the applicant the benefit of the doubt the Tribunal accepts she may have been passed over for promotion and given unpopular shifts due to attitudes towards her sexual orientation.  However, she enjoyed stable employment over an extended period and the Tribunal finds that the failure to achieve promotion or rostering for unpopular shifts does not amount to serious harm.

11. The Tribunal notes that rejection or ostracism by one’s own family would not of itself usually constitute persecution for the purposes of a protection visa.  In particular, the Tribunal notes that the High Court, in the case of MMM v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324, held that familial rejection could not be regarded as persecution, within the meaning of the convention, as it is a purely private matter and the generalised standards of civilised countries do not suggest that adults, not under a disability, have a right to protection when, for private reasons, their families reject them.

12. While the applicant complained of violence from her father the Tribunal notes she regularly lived outside the family home and returned when she was not in a relationship.  The Tribunal considers that the applicant would be able to live separately from her father if she chose to do so.  There was no claim by the applicant that her father had harmed her when she was not living in the family home.  The applicant did not claim to fear harm from her father outside the home on return to Malaysia and the Tribunal finds she does not face a real chance of serious harm on this basis.

13. The applicant’s evidence was that she had had a number of relationships in Malaysia and had lived with several partners.  While she complained of discrimination due to her sexuality she was able to live and work in Malaysia and the discrimination was not such that she felt at risk of harm returning to Malaysia when she earlier travelled to Australia.  The applicant did not claim that she experienced any increased harm on return to Malaysia.  Further, she did not raise claims to fear harm on return to Malaysia on the basis of her sexuality until the hearing before the Tribunal.  While she said she did not think she was ‘allowed’ to put a claim on the application for protection that she was a lesbian, the Tribunal does not regard this as consistent with her claim that she came to Australia to avoid discrimination and ostracism and her testimony that she wished to stay in Australia because she was free to be herself here.

14. The applicant testified that she came to Australia seeking employment opportunities.  This was reflected in her work history and prior travel to Australia.  While the Tribunal accepts that there may be reasons which are entirely credible as to why an individual may be reluctant to disclose the full reasons for their fear of return to a receiving country, the Tribunal did not regard the applicant’s reasons to be credible or consistent with her past actions or now claimed reasons for coming to Australia.

15. The Tribunal accepts that an applicant does not have to show past persecution in order to demonstrate a well-founded fear of being persecuted.  For example, depending on the circumstances, an applicant who belongs to a persecuted group might establish a well-founded fear even though the applicant has not personally suffered harm in the past.  Consideration of whether such an applicant has a well-founded fear of harm may be necessary even if their account of past events is entirely disbelieved. However, the applicant’s history in this case, and her own responses to those circumstances including not seeking protection on an earlier visit to Australia and not raising her claims prior to the primary decision being made are in the Tribunal’s view a strong indicator of the risk of harm the applicant personally faces on return to Malaysia.

100.   Having considered the applicant’s evidence and her explanations for the late addition of her claims to fear harm on return to Malaysia due being an LGBT woman based on her previous experiences in Malaysia, the Tribunal is satisfied that the applicant does not have a reasonable explanation why these claims were not made and her evidence in support of them was not presented before the primary decision was made.  In this regard the Tribunal notes that it does not regard that it is a satisfactory explanation that the applicant wasn’t sure about the process or did not have good English language skills to explain her failure to declare the reasons she now says she came to Australia and is seeking protection. Further, the applicant made no effort prior to the hearing to add to or correct her claims for protection even after the delegate’s decision made clear the reasons for the refusal and the claims which were before the delegate. Accordingly the Tribunal draws an adverse inference as to the credibility of the applicant’s claims that she suffered serious harm in Malaysia as a result of being an LGBT woman including from her father or a person called [Mr A].  Further the Tribunal draws an adverse inference from the late raising of a claim that the applicant experienced discrimination in employment as an LGBT woman and would be unable to obtain employment or subsist in Malaysia on that basis.

101.   Based on the evidence and country information the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of her sexual orientation as a member of the particular social group of LGBT women alone.

102.   However, the applicant did provide details of her current relationship.  The Tribunal notes the applicant’s partner was previously married in Malaysia and converted to Islam.  When she sought divorce from her husband she was subject to re-education by Sharia courts in Sabah and was required to give an undertaking not to leave the Muslim faith.  She claims she would face persecution on return to Malaysia as a Muslim LGBT woman who has returned to Christian faith and would be considered an apostate by Malay government and religious authorities.  The Tribunal has accepted those claims in part.

103.   With respect to her current relationship, the Tribunal found the applicant and her partner’s evidence to be credible and convincing.  They provided evidence of their extended co-habitation and relationship.  While there was no explanation as to why the intended marriage had not proceeded, the Tribunal accepts the applicant and her partner are in an ongoing relationship. The Tribunal accepts the applicant and her partner are in a long-term same-sex relationship.

104.   The Tribunal accepts that the applicant and her partner would be unable to live openly as a lesbian couple in Malaysia now or in the reasonably foreseeable future.  The Tribunal considers that the applicant’s partner’s profile as a non-practicing Muslim who has previously come to the attention of authorities in the context of her divorce would elevate the couple’s risk of drawing adverse attention from the authorities and suffering harm as a result.

Conclusions

105.   In assessing the applicant’s claims the Tribunal has also had regard to the United Nations and comparable jurisdictions.[21]

[21] ‘Resettlement Assessment Tool: Lesbian, Gay, Bisexual, Transgender and Intersex Refugees’, UN High Commissioner for Refugees (UNHCR), May 2019; UK Home Office, 3 August 2016, ‘Asylum Policy instruction: Sexual orientation in asylum claims’.

106.   Considering each of the integers of the applicant’s claims for protection individually and then cumulatively, the Tribunal considers that the applicant has a cumulative profile of adverse factors, as a person who:

·Is a member of the particular social group of LGBT women and would be identified as such in Malaysia;

·Is in a long term domestic relationship with a Malay women who converted to Islam and has previously come to the attention of religious authorities but considers herself to be Christian; and

·Has previously suffered some family violence from her father associated with being LGBT.

107.   The Tribunal finds that this cumulative profile elevates the chance of serious harm in the form of significant physical harassment and significant physical ill-treatment from religious and governmental authorities in Malaysia to be a real chance. 

108.   The Tribunal finds on the basis of the bulk of credible country information that the applicant faces a real chance of significant physical harassment and significant physical ill-treatment in Malaysia.  The chance of significant physical harassment and significant physical ill-treatment as the result of complex social and religious forces, which find expression in the legal systems to which LGBT women in Malaysia are subject, particularly women who are considered to be Muslim, or in the applicant’s case those with whom they are in a domestic relationship.

109.   The Tribunal accepts that the discrimination, harassment and intimidation experienced by the lesbian, gay, bisexual, transgender and intersex community in Malaysia is widespread. In the applicant’s current circumstances the Tribunal considers the applicant has a well-founded fear of serious harm for the essential and significant reason of her membership of the particular social group of LGBT women in Malaysia.  The persecutory treatment is both systematic and discriminatory and amounts to serious harm for the purposes of s.5J(4) of the Act.

110.   The existence of a real chance of significant physical harassment and significant physical ill-treatment in Malaysia for lesbian women identified in the bulk of credible country information is not reduced merely by the fact that a proportion of that community chooses to, or is able to, be open about their sexuality.  How an individual chooses to respond to a given chance of significant physical harassment and significant physical ill-treatment does not determine whether there is a real chance that such harm will occur. However, the Tribunal accepts that there may be circumstances of some members of the lesbian community, including those able to live relatively openly with family or financial support, for whom the chance of harm does not rise to the level of a real chance of significant harm.  The Tribunal considers that the applicant’s previous experience in Malaysia reflects this.  In any event, the Tribunal notes that these are not the current circumstances of the applicant.

111.   Accordingly, for the purposes of s.5J(5) of the Act and on the basis of country information the Tribunal finds that the applicant would face a real chance of significant physical harassment and significant physical ill-treatment in Malaysia now and for the foreseeable future for the essential and significant reason that she is a member of a particular social group of LGBT women in Malaysia being innate or immutable characteristics of the applicant.

112.   The Tribunal notes that harm from non-State agents may amount to persecution for the purposes of the Act if the motivation of the non-State actors relates to one of the reasons contained in s.5J(1)(a) of the Act and the State is unable to provide adequate protection against the harm.  Where the State is complicit in the sense that it encourages, condones or tolerates the harm the attitude of the State is consistent with the possibility that there is persecution.  Where the State is willing but not able to provide protection the fact that the authorities, including the police and the courts, may not be able to provide an assurance of safety so as to remove any reasonable basis for fear does not justify an unwillingness to seek protection.  In such cases a person would not be a victim of persecution unless it is concluded the government would not or could not provide citizens in their position with the level of protection, they were entitled to expect according to international standards.

113.   Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, so as to avoid a real chance of persecution in a receiving country.  However, this does not apply to a modification that would conflict with a characteristic that is fundamental to a person's identity or consciousness or that would conceal an innate or immutable characteristic or to a modification that would require a person to alter their religious beliefs, conceal their true religious beliefs, cease to be involved in the practice of their faith, conceal their true race, ethnicity, nationality or country of origin, alter their political beliefs, conceal their true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter their sexual orientation or gender identity or conceal their true sexual orientation, gender identity or intersex status.

114.   In the context of what is reasonable the Tribunal notes that well-founded fear of persecution cannot be properly regarded as being restricted to a single part of the receiving country if relocating carries with it a need to avoid persecution by living discreetly or otherwise being invisible.[22]

[22] As McHugh and Kirby JJ explained in the context of the previous statutory definition in Appellant S395/2002 v the Minister for Immigration and Multicultural Affairs, the Refugee Convention from which the present statutory definition is derived, would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps reasonable or otherwise to avoid offending the wishes of the persecutors.

115.   Taking these findings together with credible country information the Tribunal finds that the applicant has a well-founded fear of persecution in Malaysia for the essential and significant reason of being an LGBT woman in Malaysia. The Tribunal further finds that this fear is for the essential and significant reason of grounds at s.5J(1)(a) of the Act, namely membership of a particular social group. 

116.   On the basis of the applicant’s particular circumstances and on the country information already discussed the Tribunal finds that there is a real chance of significant physical harassment and significant physical ill-treatment, which is systematic and discriminatory and that the real chance of persecution that the applicant faces if returned to Malaysia relates to all areas of Malaysia.

117.   The Tribunal finds that pursuant to s.5J(3)(b) of the Act it would not be reasonable to require the applicant to be invisible or discreet in order to reduce her real chance of significant physical harassment and significant physical ill-treatment due being an LGBT woman.

118.   Based on the credible country information the Tribunal finds that the applicant would not be able to secure effective State protection for the purposes of s.5L(a) of the Act.

119. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations, therefore she satisfies the criterion set out at s.36(2)(a) of the Act.

DECISION

120. The tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.

Simone Burford
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

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(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.

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