1706794 (Refugee)

1706794 (Refugee) [2022] AATA 2979 (8 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706794
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:David McCulloch
DATE:8 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 July 2022 at 10:25am
CATCHWORDS
REFUGEE – Protection visa – Malaysia – application due to economic reasons – poor employment and financial situation – discrimination due to disability – applicant’s previous employment history – unlawful non-citizen – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 October 2015 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 19 January 2015. The delegate refused to grant the visa on the basis that the economic climate and conditions in Malaysia were not discriminatory and did not affect the applicant specifically for reasons of his race, religion, nationality, membership of a particular social group or political opinion. The delegate also found despite the applicant’s disability, there was no claim by the applicant nor was there evidence that the applicant would face a real risk of significant harm should he return to Malaysia. Further, the delegate stated that there was no obligation under international law for states to provide protection to people fleeing violations of economic, social or cultural rights, or to those fleeing poor economic situations in their home countries.
The applicant appeared before the Tribunal on 5 July 2022 9:30 am. The applicant has been deaf since birth. Communication in the hearing was facilitated with one Malaysian interpreter using Malaysian sign language together with an interpreter speaking English using Australian sign language. There were substitute interpreters swapping during the course of the hearing. The hearing was held in person although the interpreters appeared by video using Microsoft Teams. The Tribunal is satisfied that communication was reasonably readily facilitated by those using sign language during the course of the hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Malaysia, 29 June 2021, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant, and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant arrived in Australia on a UD-601 Electronic Travel Authority visa. His visa expired [in] September 2016 and the applicant became an unlawful non-citizen. The applicant applied for an XA-866 Protection visa on 17 February 2017. The applicant had never travelled outside his home country and Australia in the last 30 years preceding the date of his protection visa application.
The following information is apparent from the application for protection forms: The applicant was born on [date] in Kuala Lumpur, Malaysia. The applicant is a Muslim of Malay ethnicity who speaks Malaysian sign language. The applicant reads and writes both Malaysian and English. The applicant is married, but provides no details of his spouse. The applicant states that he has a father and mother, both of whom are Malaysian citizens, but provided no details of his parents. The applicant is in contact with his relatives outside of Australia by phone at least twice a week. The applicant lived at one address in Kuala Lumpur, Malaysia, from 2010 to 2016, and at one address in Victoria, Australia, from 2016 until the date of application. The applicant did not provide details of his address(es) prior to 2010. The applicant attended [schooling] from [year], graduating [in year]. Following his graduation, the applicant attended [educational facility] in Ipoh, Perak, from 2009 which he completed in [year]. The applicant worked for the Malaysian government in 2010 as[an occupation], [named employer] in 2011 as [an occupation], [named employer] from 2011 to 2012 as [an occupation], and [named employer] from 2015 to 2016 doing[a line of work]. The applicant has since been unemployed.
The following information is extracted from the applicant’s completed Form 866 Part C (not corrected for grammar or spelling):
89. Why did you leave that country(s)? Provide specific details
Response: MY NAME IS [DELETED]. I COME FROM MALAYSIA AND THIS IS MY SECOND ARRIVAL IN AUSRALIA. THE MAIN REASON I LEFT MALAYSIA BECAUSE I WANT TO GET OUT FROM DEPRIVATION OF LIFE IN MALAYSIA WITH MY EDUCATION LEVEL, I COULD NOT GET A BETTER JOB. I MADE THE DECISION TO MOVE HERE AND START A NEW LIFE BECAUSE I BELIEVE AUSTRALIA IS AMONG THE BEST COUNTRY TO LIVE IN AND GET A BETTER JOB. FURTHERMORE, THERE ARE MANY PEOPLE WHO COMPLETED THEIR DIPLOMA OR DEGREE ARE JOBLESS AS MALAYSIA ECONOMY GOING DOWN. I WISH TO START A NEW LIFE AND BRING ALL OF MY FAMILY TO LIVE IN AUSTRALIA BECAUSE I CANNOT LIVE WELL IN MALAYSIA ANYMORE AS THE LIVING COST IS UNAFFORDABLE FOR ME.
90. What do you think will happen to you if you return to that country(s)?
Response: IF I RETURN, HOW COULD I CONTINUE LIVING AS I CANNOT FIND A BETTER JOB EVEN I HAVE COMPLETE MY HIGH EDUCATION IN [COURSE]. PLUS I AM A PERSON WITH DISABILITIES, THUS MAKES IT HARDER FOR ME TO FIND A JOB. I DON’T WANT TO BE JOBLESS LIKE MOST OF MALAYSIAN GRADUATE ARE.
91. Did you experience harm in that country(s)?
Response: [The applicant ticked ‘No’]
93. Did you move, or try to move, to another part of that country(s) to seek safety?
Response: [The applicant ticked ‘No’]
Give reasons for why you did not try to move to another part of the country(s)
Response: I AM NOT SEEKING FOR SAFETY. I AM NOT BEING HARMED AT ALL. BUT I CANNOT CONTINUE LIVING AS I DON’T HAVE ANY INCOME TO SUPPORT MY FAMILY AND MY FUTURE. RATHER THAN SPEND MY MONEY TO MOVE TO OTHER PART OF MALAYSIA ITS BETTER TO MOVE TO AUSTRALIA SO I CAN START A NEW LIFE
94. Do you think you will be harmed or mistreated if you return to that country(s)?
Response: [The applicant ticked ‘No’]
95. Do you think the authorities of that country(s) could not, or would not, protect you?
Response: [The applicant ticked ‘No’]
Give details about why you think the authorities could not, or would not, protect you.
Response: NO AUTHORITIES WILL PROTECTS OR HELPS M BECAUSE OF FINANCIAL PROBLEM. THERE A LOT OF MALAYSIAN JUST LIKE ME. ALL I NEED TO DO IS MOVE TO A BETTER AND SAFE COUNTRY TO FIND A BETTER JOB AND LIVE WELL.
96. Do you think you would be able to relocate within that country(s)?
Response: [The applicant ticked ‘No’]
Give details about why you are unable to relocate
Response: NOTHING CHANGE IF I WAS RELOCATED IN MALAYSIA. WITHOUT GOOD INCOME I CANNOT PROVIDE FOOD, SHELTER FOR MY FAMILY. BUT I FEEL FINE IN AUSTRALIA BECAUSE I CAN GET HEALTH FOODS, COMFORTABLE HOUSE FOR MY FAMILY IF I CAN BRING THEM HERE.
The applicant provided a letter to the Tribunal dated 19 October 2021 indicating that the applicant has been congenitally deaf in both ears from birth.
Independent information
The 2021 DFAT Report on Malaysia provides the following information:
ECONOMIC OVERVIEW
2.9The World Bank classifies Malaysia as an upper middle-income, export‑oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 86.5 per cent of Malaysia’s exports in 2020. Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the government’s largest single revenue source.
2.10According to the World Bank, following the Asian financial crisis of 1997‑98, Malaysia’s economy was on an upward path (until COVID-19), averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high‑income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. This may be delayed somewhat by the effects of COVID-19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.
2.11Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so‑called ‘B40’ who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.
2.12In 2020, Malaysia’s economy was hit with the dual shock of COVID-19 and a decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID-19. The economy is expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. The Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages. Measures included wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants of MYR3,000 (AUD 950) to qualifying SMEs and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.
Employment
2.13In February 2021, the Malaysian Department of Statistics reported a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent. Prior to the pandemic, Malaysia’s unemployment rate was 3.3 percent in 2019. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent had primary level education and 2.7 per cent had no formal education.
2.14The International Labour Organization estimated in 2020 that around 3 million migrants (including irregular migrants) worked in Malaysia, constituting up to 30 per cent of the country’s workforce. Of the migrant worker population, 1.7 million were registered, and an estimated 1.9 million were undocumented (irregular) migrants, as at 2017. Recent years have witnessed a rise in increasingly virulent rhetoric against migrants within the popular media, blaming migrants for a host of social problems ranging from electoral fraud to increases in street crime. Scapegoating of migrants, regardless of realities, has contributed to an environment where exploitation and abuse are sometimes viewed as acceptable. In May 2020, during the COVID-19 pandemic, the government conducted mass arrests of undocumented migrants in coronavirus hotspots in order to prevent the spread of the disease to its own ‘innocent citizens’, according to one government minister.[1]
[1] DFAT, Country Information Report – Malaysia, 29 June 2021, pp. 10–11, paras [2.9]–[2.14].
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary, to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Malaysia and accordingly his claims will be assessed against Malaysia.
In the hearing, the applicant confirmed the information in the application forms that he does not fear for his safety and does not fear being harmed at all. He confirmed that the reason that he seeks protection is because he cannot provide for himself and his family economically and due to cost-of-living pressures. He confirms he cannot return to Malaysia because he needs a better job and he wishes to bring his family to Australia. The applicant indicates that he wishes to bring his elderly parents to Australia and work and support them.
The applicant was asked if this is a comprehensive list of the reasons that the applicant cannot return to Malaysia. In response, the applicant indicated that there were threats to him in Malaysia. When asked to explain, the applicant indicated that in the workplace he was isolated and lonely and it was difficult. He did not receive good money. He was threatened, bullied and teased due to his deafness. Later in the hearing, the applicant indicated that he received discriminatory pay in Malaysia based on being deaf.
At various points in the hearing, the Tribunal put to the applicant that none of these claims of mistreatment and discrimination in the workplace had been indicated in his written claims for protection. The applicant in his various responses indicated that this was because there was not adequate space in the application form. The Tribunal pointed out that in the section of the application form asking what would happen if he returned to his home country, there are 12 lines not filled in on the relevant page of the application form. The applicant responded that there are also difficulties he had in expressing himself in the application form in English.
The applicant confirmed in the hearing that from 2012 until 2016 in Malaysia he had held down four consecutive jobs. The Tribunal put to the applicant that this might suggest a successful and positive work history. In response, the applicant indicated that he was sad at work but pushed through, with his parents saying he should not give up.

The Tribunal noted that the relevant legal tests for protection from serious and significant harm require harm of a degree of magnitude. This may not be met by low-level hurdles in the workplace. The Tribunal put to the applicant if the degree of harm in the workplace constituted serious or significant harm for the purpose of protection criteria, it might be considered that this would have been included in the written claims for protection. In response, the applicant indicated that he did not go into great deal in the application form and that he has the opportunity at the hearing to provide further details.
For the reasons put to the applicant in the hearing, the Tribunal has credibility concerns that the applicant has faced in Malaysia in the workplace or elsewhere serious or significant harm as would be required to meet the protection criteria. This is particularly the case in light of the application form indicating that the applicant has never been harmed in Malaysia. This provided a direct opportunity for the applicant to elucidate harm to have occurred in the workplace. While the Tribunal considers it not implausible that there may be some degree of discrimination suffered in the workplace as a result of being deaf, the absence of the applicant specifically referring to discrimination in his application for the protection visa undermines the claim that this was an overly serious concern or that it would constitute serious or significant harm.
The Tribunal is not satisfied that the applicant has previously suffered serious or significant harm in the workplace or elsewhere in Malaysia, or that there is a real chance he would do so on return to Malaysia in the workplace or elsewhere.
The remainder of the harm articulated by the applicant in the protection visa forms is economic harm. The Tribunal put to the applicant at the hearing that economic harm would not meet the protection criteria. This is because for the purpose of the refugee criterion, the harm would not be for a refugee criterion reason, nor would it be discriminatory. Economic harm would not meet any definition of significant harm for the purpose of the complementary protection criteria.
In response, the applicant referred to discrimination in the workplace based on being deaf. For the reasons indicated, the Tribunal is not satisfied that the applicant has suffered or would suffer in the workplace discrimination because of being deaf that would amount to serious or significant harm.
While accepting that job prospects and the economic situation may be superior in Australia in comparison to Malaysia, the Tribunal is not satisfied that poorer economic conditions and job prospects for the applicant in Malaysia constitute persecution for the purpose of the refugee criterion, or that this constitutes significant harm.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear for a reason set out in s 5(J) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk of him facing significant harm.
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).
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).
There is no suggestion 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 the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…

[2022] AATA 2979

8 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Standing