1706449 (Refugee)

[2021] AATA 2892

1706449 (Refugee) [2021] AATA 2892 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706449

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:24 March 2021

PLACE OF DECISION:  Perth

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

Statement made on 24 March 2021 at 12:37pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark – attacks and threats – credibility – vague, inconsistent and implausible claims and evidence, omitted information and no supporting documentation – previous travel to Australia and other countries and voluntary returns – work in home country and in Australia on tourist visas – no harm to wife and children, or to applicant during visits to hometown – country information – actions against loan sharks by government and police – possibility of relocation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(1)(a), 5H, 36(2), (2B)(b), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510

BEH15 v MIBP [2019] FCAFC 184

Chand v MIEA [1997] FCA 1198

CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v MIBP [2018] FCFCA 2

Guo Wei Rong and Pam Run Juan v MIEA (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v Li [2013] HCA 18
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIBP v SZVFW [2018] HCA 30
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220.
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
SZBEL v MIMIA (2006) 228 CLR 152
SZQNO v MIAC [2012] FCA 326
WAKK v MIMIA [2005] FCAFC 225

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 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 a [Age]-year-old Malaysian citizen. He is Buddhist and has identified himself as ethnically Chinese.  His parents are deceased.  He was born in [Town], Negri Sembilan, Malaysia and is one of 10 children, eight of whom remain living in Malaysia.  He also has a wife in Malaysia from whom he has been estranged for 10 years.  They have four adult children who are all living in Malaysia.

3. He initially arrived in Australia on [Date 1] December 2008 on a [Subclass 1] Electronic Travel Authority visa, departing on [Date 2] December 2008. He travelled to Australia again on [Date 1] March 2009 on another [Subclass 1] Electronic Travel Authority visa, departing on [Date 2] March 2009. He returned to Australia [in] November 2016, on a [Subclass 2] Electronic Travel Authority visa. He applied for a protection visa on 13 January 2017.

   Issues

4. The issues in this review are whether there is a real chance that, if he 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 him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS AND EVIDENCE

   Protection claims

   Protection visa application

6. The applicant initially presented his claims in his protection visa application, in which he states, in summary, that:

   ·     He owes more than 50,000 Malaysian dollars to a loan shark and is unable to pay. He is scared the loan shark will hurt/hit him seriously.

   ·     The loan shark has already hit him several times and poured hot cooking oil on his body while he was cooking. The loan shark also threatened to break his legs and hands.

   ·     The applicant has not sought help from the authorities. They would not be able to protect him 24 hours.

   ·     He cannot relocate elsewhere in Malaysia because he has been living in his village more than [Number 1] years and he sells vegetables and it is easier for him to make a living in his small town and it would be difficult for him to relocate because he does not know anyone in the new place and it would take him time to build his client base.

7. The applicant submitted a copy of his Malaysian passport issued [in] 2016 to the Department. 

8. The applicant was not interviewed by the Department in relation to the application. He did not provide any other documents or evidence in support of his application to the Department.

   The delegate’s decision

9. The delegate refused the visa on 9 March 2017.  The applicant provided a copy of the delegate’s decision with his application for review.

10. The delegate refused the visa on the basis they were not satisfied that there was a real chance that, if the applicant was returned to Malaysia, he would 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.

11. The delegate also found that, having regard to country information and given the minimal detail and lack of supporting evidence from the applicant, he had not established his case.  The delegate found the applicant would receive adequate protection from the authorities in Malaysia. Accordingly, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real risk that he would suffer significant harm. Accordingly, the applicant was not a person in respect of whom Australia had protection obligations, as outlined in s.36(2)(aa) of the Act.

    Review application

12. The applicant filed his application for review on 29 March 2017.

13. The applicant was initially scheduled to appear before the Tribunal, differently constituted, on 15 March 2018.  That hearing was postponed when the constituted member became unavailable. 

14. Following reconstitution, the applicant appeared before the Tribunal on 25 November 2020 and 11 March 2021 to give evidence and present arguments.

15. The hearing on 25 November 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. At that hearing the Tribunal discussed with the applicant whether there were any changes to his claims and the information on which he was seeking to rely in support of his claims.

16. The hearing on 11 March 2021 was held in person at the Perth registry. 

17. The hearings were conducted with the assistance of an accredited interpreter in the English and Mandarin languages.

18. The applicant was not represented in relation to the application before the Tribunal and did not submit any additional supporting documents to the Tribunal. 

19. The applicant’s claims for protection and the evidence on which he was seeking to rely were discussed at the hearings. The summary of the applicant’s claims contained in the delegate’s decision was read to the applicant at the first hearing and he confirmed it was a fair and accurate summary of his claims.  He told the Tribunal he had no additional claims and no changes to the information contained in his application.

20. The Tribunal notes that in response to the question on the application for protection concerning whether the applicant had assistance from an interpreter or anyone else in completing the form (Question 101), the applicant answered ‘no’. At the second hearing, the applicant was asked if he had assistance preparing his application for protection and he told the Tribunal that a guy from Malaysia, [Mr A], helped him where he couldn’t understand the questions, but he hadn’t had contact with him in a long time.  He said he filled out and signed the form himself.

21. The Tribunal advised the applicant that he could not assume that any of his claims had been accepted, even if they had been accepted or not addressed directly by the delegate. The Tribunal informed the applicant that it considered that all aspects of his claims were in issue before the Tribunal, including whether he satisfied each of the criteria of ss.36(2)(a) and 36(2)(aa).

22. The information discussed at the hearings and the applicant’s oral evidence to the Tribunal are discussed further below. The Tribunal also discussed with the applicant relevant country information, including information contained in the most recent 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.

    Applicant identity and country of reference

23. The applicant claims to be a citizen of Malaysia. The applicant provided a copy of his Malaysian passport issued on 2 November 2016 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.

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

    DECISION MAKING FRAMEWORK

    Criteria for a protection visa

25. 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.

26. 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.

27. 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).

28. 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.

29. 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).

30. 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.

31. 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.

32. 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).

33. 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.

34. ‘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.

35. 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.

36. 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’.[1] Credibility assessments

    [1] MIAC v MZYYL [2012] FCAFC 147.

37. 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.

38. 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.

39. 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.

40. 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.

1. 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. 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] See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

2. 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].

3. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[10]

   [10] Prasad v MIEA (1985) 6 FCR 155 at [169–70]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

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

   Mandatory considerations

5. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

6. The Tribunal notes in particular that it has had regard to the 2019 DFAT Report in considering the claims raised in the application.

   Country information

7. Information regarding loan sharks outlined in the 2019 DFAT Report was discussed in general terms with the applicant at the second hearing. 

8. Country information indicates that loan sharks, or ‘Ah Longs’, operate very publicly in Malaysia carrying on moneylending activities without a licence and charging high interest rates to do so. While such practices are illegal, moneylenders advertise their services publicly[11]. However, country information indicates it is an offence to illegally lend money in Malaysia and police have broad powers to investigate alleged loan sharks.[12] In this regard, police can visit, enter, inspect or search premises without a warrant and seize movable properties and business documents to assist with the investigations against alleged loan sharks. Penalties for illegal moneylending include a jail term of up to five years. [13]

   [11] DFAT, Country Information Report: Malaysia, 13 December 2019 par 3.108, page 39-40.

   [12] Illegal money lending or loan sharking is an offence under s.5(2) of the Moneylenders Act 1951, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both, see DFAT, Country Information Report: Malaysia, 13 December 2019.

   [13] DFAT, Country Information Report: Malaysia, 13 December 2019.

9. The police actively investigate and prosecute illegal money lenders. Police actions against individual loan sharks under the Moneylenders Act 1951 are reported on regularly in the Malaysian media.[14]  Country information suggests the Government has been making efforts to reduce corruption within the political system and the police force, and to target illegal money lenders by charging them with criminal offences and/or fining them. This suggested that the police would take action if the applicant reported being harassed or threatened by an illegal money lender. The applicant said he had a friend who had reported money lenders and the police took no action and then he was beaten.

   [14] ‘14 held for illegal money lending in Pahang, items worth RM1million seized’ NST, November 2019 ‘Violent gang of loan shark members nabbed’ The Star, Jan 2020

10. The Tribunal noted that part of the 2019 DFAT Report indicated that some banks and credit agencies were willing to offer people loans to consolidate and pay off loan sharks and asked whether he felt that he could access such assistance.

11. The NGO Malaysian Chinese Association’s (MCA) Bureau of Coordinating Government Affairs provides a similar service to renegotiate the terms of loans with loan sharks on behalf of borrowers.[15] The Tribunal queried whether the applicant was aware of such services and the applicant said he didn’t think they could do anything.

    [15] ‘Many still found borrowing from loan sharks’, MCA website May 2017

    CONSIDERATION

12. The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.

13. As noted earlier, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is well-founded or that it is for the reason claimed. The Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. 

14. The Tribunal has significant concerns about the credibility of the applicant’s claims. There were marked inconsistencies in aspects of his claims including in relation to events which occurred in Malaysia including with respect to the claimed loans. On critical aspects of his claims he struggled to provide meaningful detail, context or corroborative evidence. 

15. Further, in the Tribunal’s view, the applicant’s conduct in Australia contributes further to doubts regarding his credibility and claims for protection.  This includes the omission of significant details of his personal circumstances in Malaysia, including regarding his four children, and details regarding where he was living and the work that he was doing in the years preceding his departure from Malaysia. This causes the Tribunal to have significant concerns regarding the accuracy and truthfulness of the information the applicant provided in support of his application for protection.

16. These concerns are detailed further in the assessment below.

    Debtor claims

17. Central to the applicant’s protection claims are that he incurred debts to a loan shark in Malaysia, which he was unable to repay.  He is afraid he will not be able to repay his debts if he returns to Malaysia, and fears harm from his debtors.

18. The Tribunal had significant concerns regarding the credibility of the applicant’s claims for protection.  There are aspects of the applicant’s evidence regarding his claims which cause the Tribunal concern, including his failure to include key details at the visa application stage or to have provided consistent information regarding his claims at the review stage.

19. The applicant claims to have left Malaysia due to having been harmed by loan sharks to whom he owed money he could not repay.  However, his evidence to the Tribunal suggested he came to Australia to obtain employment, having already travelled to Australia on a prior occasion with a view to working here.

20. At the second hearing the applicant told the Tribunal he first came to Australia in December 2008 for a three-day period. He came with others from his town as part of a tour group. He next visited on [Date 1] March 2009 on an electronic travel authority and departed on [Date 2] March 2009. He said he came to find a job, but the boss gave him a very different job to what he’d expected. He said he thought he would be coming to [do a job task] but when he arrived, he found out it was to work at a [workplace].

21. He came again [in] November 2016 on an electronic travel authority visa. He told the Tribunal that he came to find a job. He said he was in contact with a friend who was doing [work sector] work in Australia and he started work in that industry about three weeks after he arrived. A few months later, that person recommended him for a job [doing a job task]. He eventually obtained his own Australian driver’s licence and commenced work as an [Occupation 1] initially and later as [an Occupation 2]. He connects with customers through [Social media] and earns around $1,500 a month. The Tribunal asked why, if he came to Australia intending to work, he didn’t apply for a work visa from Malaysia and he said that at the time he believed he would not get it. 

22. The applicant’s evidence that he travelled to Australia on a tourist visa to obtain employment, having already tried on one prior occasion to obtain work here on a tourist visa, casts doubt on his claims to have left Malaysia due to fear of harm from loan sharks or any other person. The Tribunal also put to the applicant that the fact that he came to Australia and worked while on a tourist visa (on two occasions) might cast doubt on his credibility. He said he understood this.

23. Further, the details the applicant was able to provide to the Tribunal regarding the events he said led to his fear of returning to Malaysia were vague and lacking detail. The Tribunal asked why he applied for the protection visa and he said that his parents became sick, his father broke his leg and his mother got sick so they borrowed money from a loan shark. He said this was in 2001-2002. He said he paid for the loan for a long time, but he couldn’t pay it off. The loan for was for around 50 to 60,000 MYR. He did not know the name of the person he borrowed the money from; he said that a friend had sent someone to come to them and they said if he wanted money, they would loan it to him. The Tribunal asked what the name of the person was, and he said they were usually called ‘Ah long.’ The Tribunal indicated it understood that this term applied generally to illegal money lenders and the applicant said he called them ‘Ah long’.

24. He said he was given the money in cash and he used it to pay the bills for his father in hospital. He said he had to pay 50 MYR for every 1,000 MYR he had borrowed per month, which was 2,000 MYR a month, every month and that he paid it for three to four years. The Tribunal asked when he stopped paying and he said it was in 2006. He said he was still paying after that but was unable to pay the full sum as he did not earn that much money. The Tribunal asked what happened when he stopped paying the money and he said that subordinates would come to threaten him. He said that they came several times since 2006. The Tribunal queried how many times and he said about five to six times. He said they came to his vegetable farm and sometimes to where he lived. He said that at this time he was in a rental house in [Town]. He said when they came to visit, they told him not to be late with the money and they ‘talk very bad’ to him.

25. The applicant said they first came in June 2006 and then came again one month later. He said they came five to six times to the end of 2006 and he would give them money, but it was not enough. Then he said they tried to force him to pay more by pouring hot oil on him. He said that this was done by the man collecting the money. He was not able to identify those people. He said he was wearing a shirt so he was not seriously injured. The Tribunal asked if he reported this to the police and he said he was scared. He said he had a friend who had borrowed money also and had been seriously injured after he went to the police.

26. The Tribunal asked what happened after this and he said that they asked him to pay more next time, but he couldn’t pay more than that. The Tribunal asked when the last time they threatened him was and he said it was in January 2007. The Tribunal asked why he thought they would harm him and he said because they had harmed another vegetable farmer in 2007. The Tribunal asked why they hadn’t approached him since January 2007 if he thought they would still be interested in enforcing the loan. He said that straight after that he had gone to his sister. The Tribunal queried this as his sister was living in Johor Bahru but he had said he’d been living in [Town] and had not mentioned going to Johor Bahru before.   He said that in the middle of 2007 he went to find his sister and stayed working in Johor Bahru to work [in a workplace]. The Tribunal asked how long he was there, and he said for four years. He said sometimes he would go back to [Town] to see his family. Later the Tribunal queried how long he’d been in Johor Bahru when he left for Australia and he said it was about nine years.

27. The Tribunal queried why, if he had come from Johor Bahru to Australia and had been living there and working for nine years, he would not be able to return to Johor Bahru. The applicant said that he could go back to Johor Bahru, but he could not go home. Again, the Tribunal queried why, if he was living in Johor Bahru before he came to Australia and that was where he was working, he could not return to that place and the applicant said that ‘one day they will find me again’. The Tribunal asked why the applicant thought that the loan sharks were still looking for him and he said that they went to [Town] and asked for him. The Tribunal queried whether he had mentioned that in his claims earlier and he said ‘no’. The Tribunal queried why his wife and children had been able to continue to live in [Town] without suffering harm since he left in 2007 and he said that it was because he took out the loan.  The Tribunal pointed out that the country information suggested that loan sharks may seek to enforce loans against family members when the person who borrowed money could not be found and he said that they do go to see them ‘on an off’ but did not threaten them.  When asked when they last went to see them, he said they visited his eldest son in ‘maybe 2019’ and asked if the applicant had come back.

28. The Tribunal put to the applicant that the fact he had been able to live and work in Johor Bahru for nine years without being harmed prior to coming to Australia might suggest he was not at risk of harm there.  Further, the fact he had been able to travel back to [Town] to visit suggested he was not at risk of harm in that town.  He said that he would visit [Town] and immediately leave. The Tribunal was concerned that the account of the applicant’s movements and employment in Malaysia in the years prior to coming to Australia were to consistent with his claim to have suffered and feared harm from loan sharks, or with his claim to be unable to escape loan sharks anywhere in Malaysia.  This contributed further to concerns regarding the credibility of those claims.

29. The Tribunal found the applicant’s account of events regarding the claimed loans to be both vague and implausible.  The Tribunal was concerned that the applicant was unable to provide any corroborative or supporting evidence of any debts owed in Malaysia, or threats made before or after he left Malaysia.  In any event, taking the applicant’s claims at their highest, no threats have been made against the applicant for more than 14 years and his family have experienced no harm or threats of harm during that period despite remaining living in the town in which he claims to have been pursued and harmed by loan sharks seeking repayment of monies.  This is despite the fact his wife remains living in what had previously been his home and his sons are working in [Town]. The fact that the loan sharks have not sought repayment from the family despite their ongoing presence in the applicant’s hometown casts further doubt on the claims regarding the existence of the debts.

30. Further, none of the claimed harassment was reported to the police, including when the applicant claims to have been doused in hot oil. The Tribunal also does not accept that the applicant would not report an ongoing threat of permanent disablement or death to authorities in such circumstances. Given the applicant claims he is at risk of death due to an inability to pay the loan, it is implausible and illogical that he would not seek the assistance of authorities to avoid that harm even in circumstances where he lacked confidence in the ability of the authorities to protect him at all times.  This is an easy assertion to make, particularly when the issue was not tested. The evidence is that neither the applicant did not attempt to make a report to the police.  When it was put to him that country information suggested there were organisations which assisted with resolving outstanding issues with loan sharks and he was asked if he had or would access such a service, he stated they would be unable to do anything.  Again, the Tribunal does not accept that if the applicant were at risk of death from loan sharks, he would not seek to protect himself from such a risk though engaging with such services merely on an assumption that they would be unable to assist him.

31. The Tribunal also considered that the applicant’s travel history contributed to doubts regarding the genuineness of his claims to fear harm from loan sharks.  In his application for protection, the applicant indicated that he had travelled to one country other than Australia in the last 30 years (Question 80), to [Country 1] from [October] to [November] 2012.  However, at the hearing he told the Tribunal he had travelled to [Country 2] several times including in 1994 and 2002 on a tour, and in 2013 for his younger brother’s wedding. He had also travelled to [Country 2] on a tour in 2000.  In addition, he had made two prior trips to Australia, one on a tour in 2008 and one with the purpose of working in 2009. 

32. The Tribunal notes that several of these trips were after the applicant claimed to have borrowed money from loan sharks and after the period he said he had no longer been able to pay back the loan as he was earning insufficient income. Further, the applicant travelled to Australia after he claimed to have suffered harm in Malaysia on two occasions and returned voluntarily to Malaysia without incident and without suffering harm on return. The Tribunal put to the applicant that his travel history might cast doubt on his claims to have been unable to repay debts in Malaysia.  He said that the trip to [Country 1] had been paid for by his brother.

1. In the Tribunal’s view, the applicant’s travel history raises significant concerns regarding the credibility of his claims to fear harm on account of unpaid loans in Malaysia.  Both the fact he was able to afford to travel relatively frequently out of Malaysia for recreation and the fact he was able to leave Malaysia and returned voluntarily after events he now claims gave rise to a fear of serious or significant harm on return to Malaysia, casts doubt on the genuineness of his claim to fear harm on return to Malaysia.

2. Further, following his evidence before the Tribunal, it was clear he had omitted significant details from his application and that the information he had provided was, in the Tribunal’s assessment, misleading.

3. At the hearing, when the Tribunal asked about the applicant’s family in Malaysia, he told the Tribunal he had a wife and four adult children in Malaysia.  He said he had been estranged from his wife for about 10 years. She remained living in [Town] in the home they had shared when married.  He initially said the home was in two names, then indicated he had transferred the house to her when they separated because they always fought and could not live together. He said he had three sons and one daughter, all of whom lived in [Town].  Two were farmers, two were not working. He said he had contact with the children in the holidays and spoke most often to his eldest son.

4. As noted earlier, the information provided by the applicant in his application made no mention of his children.  This was despite the applicant providing details of his wife (though failing to nominate any status for the relationship, including being separated) and five of his siblings[16]. As discussed with the applicant at the hearing, the omission cast some doubt on the truthfulness and completeness of the information he had provided with his application.

   [16] Form 866B, Question 5. The applicant did not list any family members under the corresponding question in Form 866C, Question 42).

5. The Tribunal also had concerns regarding significant inconsistencies or omissions in the account of his time in Malaysia, including where he had lived and the work he had done there. In his application he indicated that he had been employed since 1979 ‘selling vegetable’ in [Town].  He claimed that he could not move to another part of the country because:[17]

   I have been living in this place for more than [Number 1] years. I am not a skilled worker. I am selling vegetables in this small town for more than [Number 2] years. It is easier for me to make a living in this small town. When I move to another part of the country. It is difficult for me to start since we don’t know people in new place

   [17] Form 866C, Questions 93 and 96.

6. He went on to say:

   I have been living more that fifty years in this small town and selling vegetables more than thirty year.  I have some old customers if I relocate then I need to take longtime for yet enough customers to survive.

7. At the second hearing the Tribunal asked the applicant where he was living prior to coming to Australia and he told the Tribunal he was living in [Town].  The Tribunal asked what sort of work he was doing before he came to Australia and he said he was a farmer. 

8. However, as noted above, he later told the Tribunal that for the nine years prior to coming to Australia he was working in Johor Bahru in the [work sector 2].  The Tribunal put to the applicant at the hearing that the omission of his time in Johor Bahru and his work in the [work sector 2] cast doubt on the truthfulness of the information he had provided in the protection visa application and on the credibility of his claims.  He said he understood this.

9. The Tribunal has considered relevant country information outlined above, including that provided by the applicant, and accepts that it reflects that predatory lending practices in Malaysia can be associated with violence and crime, but also that the Malaysian police and government authorities have taken, and continue to take, prosecutorial action against such practices.  Further, the Tribunal finds there are organisations who offer assistance to individuals and businesspeople in circumstances such as the applicant has described and that such services may be available to assist the applicant on return to Malaysia. The fact the applicant has not attempted to avail himself of any support from non-government agencies operating in this space to assist debtors in a meaningful way or to complain to police tends to undermine his claim that he will face serious or significant harm on his return to Malaysia. 

10. Having regard to the applicant’s claim that the loan sharks would still be looking for him, the Tribunal does not accept that this is the case.  The Tribunal notes that in the absence of repayments by the applicant since 2007, the loan sharks have not sought to harm his family or to enforce the debt against them. This suggests that, even if it is accepted a debt is owed to a loan shark, the loan shark has limited interest in enforcing that loan. In this regard the Tribunal notes that the applicant claimed before the Tribunal that loan sharks approached his son most recently in about 2019 to ask about his whereabouts. This claim was only raised before the Tribunal after questioning regarding the amount of time which had passed since the loan was taken out and since he had moved from [Town].  Given the lateness of this claim and the Tribunal’s concerns regarding the credibility of the applicant’s evidence, detailed above, the Tribunal does not accept that loan sharks were seeking information about his whereabouts from the applicant’s son or anyone else in 2019.

11. Having considered all the circumstances of the applicant’s claims regarding debts, including the credibility concerns detailed above, the Tribunal finds the applicant does not have a subjectively held well-founded fear of persecution from loan sharks, or any other person on his return to Malaysia.

    Economic disadvantage

12. While the Tribunal accepts that the applicant wishes to remain in Australia for economic reasons, the Tribunal finds that there is nothing before it to indicate or suggest that the applicant would be denied the opportunity to work or would be unable to find any work in Malaysia.  His evidence was that he had worked consistently in Malaysia as a farmer and then in [work sector 2]. While the Tribunal accepts the applicant would have to resettle in Malaysia, including in relation to finding employment, and may have less disposable income available to him if he returned to Malaysia, the Tribunal does not accept that he faces a real chance of suffering persecution involving serious harm for one or more of the five reasons mentioned in s.5J(1)(a) of the Act if he returned to Malaysia.

13. Given these above considerations, the Tribunal finds that there is no real chance the applicant would suffer serious harm for one or more of the reasons mentioned at s.5J(1)(a) of the Act, should he return to Malaysia.

    COVID-19 related issues

14. The Tribunal acknowledges that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia.  The Tribunal notes that this decision is not a decision on removal.  However, the Tribunal is mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.  Accordingly, for the removal of doubt, the Tribunal finds that that there is no information before the Tribunal suggesting or supporting a claim that the COVID-19 pandemic or the Malaysian government’s response to it gives rise to a well-founded fear of persecution on the part of the applicant on return to Malaysia. 

15. Further, there is no evidence that as a reasonably foreseeable consequence of the applicant’s return to Malaysia there is a real risk he would suffer serious or significant harm on that basis.  In this regard, the Tribunal finds that whatever measures may be applicable to the population of Malaysia generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to ‘systematic or discriminatory conduct’ for the purposes of the refugee criterion, or an intentional act or omission for the purposes of the complementary protection provisions.

    Summary of findings

16. The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.

    The refugee criterion

17. For the reasons outlined above, the Tribunal does not accept key aspects of the applicant’s claims and finds that:

    ·The applicant does not owe money to a loan shark.

    ·The applicant moved from his hometown of [Town] to work in [work sector 2] nine years prior to coming to Australia and seeking protection.

    ·There was no threat of harm or instance of harm from any individual against the applicant or members of his family.

    ·The applicant did not fear harm from loan sharks when he left Malaysia for Australia.

    ·The applicant left Malaysia to pursue work opportunities in Australia.

18. Based on these findings, the Tribunal finds the applicant does not subjectively hold a well-founded fear of persecution on the basis of loans owed to loan sharks in Malaysia.

19. Further, and in any event, as the Tribunal does not accept the applicant owes money to a loan shark in Malaysia, the Tribunal finds that the applicant does not face a real chance of serious harm due to claimed debts owed to loan sharks, or Ah Longs, on return to Malaysia now or in the reasonably foreseeable future.

20. The applicant did not articulate any other basis on which he would face harm in Malaysia. The Tribunal finds that the applicant has not been harassed or victimised by anyone in Malaysia for any reason or at any time. Further, the Tribunal finds that he would not face a real chance of serious harm on return from Australia to Malaysia for any reason, now or in the reasonably foreseeable future.

21. For the avoidance of doubt, the applicant has not provided any evidence that the economic circumstances in Malaysia amount to systematic and discriminatory conduct with respect to him.  Similarly with respect to any claims which might arise with respect to COVID-19, for the reasons outlined earlier, the Tribunal finds that whatever measures may be applicable to the population of Malaysia generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to ‘systematic or discriminatory conduct’ for the purposes of the refugee criterion or an intentional act or omission for the purposes of the complementary protection provisions with respect to the applicant.

22. The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that the applicant would face a real chance of serious harm now or in the reasonably foreseeable future if he returned to Malaysia. 

23. The Tribunal finds the applicant does not meet the criteria for protection under s.36(2)(a).

    Complementary protection criterion

24. As the Tribunal finds the applicant is not owed protection under s.36(2)(a), the Tribunal has considered the applicant’s claims under s.36(2)(aa), the complementary protection ground.

25. Accordingly, the Tribunal has considered whether, on the evidence before it, there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

26. The real risk test imposes the same standard as the real chance test.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[18] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J of the Act.

    [18] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

27. Noting the findings the Tribunal has already detailed relating to the applicant’s claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he would suffer significant harm, now or in the reasonably foreseeable future, from any person or for any reason.

100.   There are no other claims that arise from the evidence or country information and the applicant has not raised any further fears of returning to Malaysia.

101.   Taking the applicant’s claims individually and then cumulatively, at their highest, they do not meet the required thresholds under either the refugee assessment criterion or the alternative complementary protection assessment criterion.

CONCLUSION

102.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

103.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

104.   There is no suggestion on the information before the Tribunal that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).

DECISION

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

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

…

(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.

…