1706865 (Refugee)

1706865 (Refugee) [2022] AATA 2468 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706865
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Windsor
DATE:14 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 June 2022 at 12:17 pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – sexual harassment by cousin’s husband – effective state protection – shame and family honour – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 21 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 7 November 2016.
In her protection visa application the applicant indicated she was born in Johor in Johor state, Malaysia on [date]. She stated she is ethnic Malay, a Muslim and has never married or been in a de facto relationship. She indicated that she departed Malaysia legally [in] August 2016 and arrived in Australia on the same day, entering on a visitor visa. She indicated she had been in Australia previously but returned to Malaysia [in] April 2016, because her mother was unwell and she needed to care for her.[1]
[1] See the Departmental file.
In her application, the applicant indicated she left Malaysia because she was sexually harassed by her cousin’s husband and felt insecure wherever she went.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding that country information indicates the applicant could obtain protection from the Malaysian authorities such that there would not be a real chance she would suffer persecution or a real risk she would suffer significant harm.
The applicant sought review of this decision on 3 April 2017. She provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal by telephone (at her request because she is living in regional Victoria, [number] hours’ drive from the Tribunal’s premises) on 8 June 2022 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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 (Cth) (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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
The applicant’s claims, as set out in her protection visa application of 7 November 2016, are summarised as follows:[3]
[3] See the Departmental file.
·Last July, her cousin’s husband trapped her by inviting her to help him do some interior designing on his new house. Unfortunately, after a few hours, he all of a sudden asked her to do oral sex with him. She refused. Because of that, he got mad and tried to force her. Luckily she managed to run away.
·Since that incident, her cousin’s husband kept texting and calling her. He threatened that if she told her family he will accuse her of trying to seduce him, which would destroy their family relationship.
·She felt insecure wherever she went and whenever she went out as she could feel that someone was following her and her actions were being watched.
·She did not seek any help because she is afraid that if what happened is revealed it will taint her family honour.
·She tried to move to her sister’s place in Selangor but unfortunately he found her and came to her sister’s place and tried to ask her out but she refused.
·She fears that if she returns to Malaysia he will find her and try to sexually harass her again. From what she knows of him, he will not stop until he gets what he wants.
·She doesn’t think the authorities can protect her because they cannot get involved in family matters. She also does not have the strength and power to make a report to the authorities. She also wants to protect her family honour.
·She does not think she could relocate within Malaysia because in their community it’s not acceptable to have an affair with a family member, especially a married person. For them, she will be the one who will be seen as having an intention to destroy the other family’s happiness because it is considered all the bad action starts from the woman not the man.
Evidence from the hearing
At the hearing the applicant confirmed that she has never married. She indicated that her parents and four siblings (two elder brothers and two elders sisters) remain living in Malaysia. She indicated her parents live in [Town 1] in Malacca state, where her father was born. She indicated her father works as a [Occupation 1] in a [location]. She said one of her brothers lives in [Town 2] in Selangor state, where he works in [industry] while the other lives in Malacca where he works as a freelancer. She said one of her sisters lives in [Town 3] in Selangor state, where she works as a freelancer, while the other lives in Sungai Petani, in Kedah state, and is not working.
The applicant confirmed the information in her application that she completed a Diploma in [subject] in Pahang state in December 2011 and then a Bachelor in [discipline] at the Malacca campus of [University 1] in January 2014. She confirmed that she worked in Kuala Lumpur [in Occupation 2] from August 2015 until January 2016 then worked as a freelancer [in Occupation 3].
As indicated in her passport, the applicant confirmed that she first arrived in Australia [in] February 2016 for almost 3 months ([until] April 2016), before returning to Malaysia . In her application she stated that she returned to Malaysia because her mother was unwell and she needed to take care of her.
Observing that she stated in her application (prepared in November 2016) that the issue with her cousin’s husband occurred ‘last July’, the Tribunal asked if she was referring to July 2016. She indicated she was.
The applicant indicated that she regards the person involved as a brother because he is married to her cousin. She said she was invited to help with the interior design of their new house. She indicated her cousin was away but there were two other cousins (a man and a woman), herself and her cousin’s husband at the house. She said at lunchtime the two other cousins decided to get lunch for them. She said she was decorating the living room while her cousin’s husband was in the bedroom. She said he asked her how she was getting on and asked what else can be done. She commented that she sensed his behaviour change slightly. She said he then started touching her shoulder and kissed her cheek and neck. She said she was stunned but he moved closer, hugged her and asked her to perform oral sex on him. She commented she had not expected him to be like that and was in shock. She said she pushed him and he fell. She said she ran out of the room and he chased her, pulled her and slapped her. She said he was very angry. She indicated that, luckily, her cousin’s car pulled up in front of the house and he let go of her, but he warned her not to tell anyone what had happened, telling her that if she did he would claim she had tried to seduce him. She said she told her cousins she had something else to do and had to go home.
The applicant said after the incident, her cousin’s husband often sent her messages or called her but she never replied. She commented that he said in messages that if she said anything he will say she tried to seduce him. She added that she felt tortured mentally and was frightened and not at peace. She said she was not able to focus on work and kept to herself, affecting her relationships with those around her. She said she quit her job and decided to run away so came to Australia.
When asked, the applicant confirmed that this incident occurred between when she first came to Australia ([from] February [to] April 2016) and when she returned to Australia ([in] August 2016). The Tribunal asked her why she came to Australia in February 2016. She said she came on holidays. She said she stayed with a friend of her sister’s. the Tribunal asked why she stayed in Australia for nearly three months and how she could afford to do that. She said the woman she stayed with had recently given birth and her family members had returned to Malaysia so she stayed to assist her. She indicated she had savings from past work.
The Tribunal asked the applicant where she was living at the time of the incident. She said she was living in [Town 4] in Selangor state. When asked, she said her cousin and her cousin’s husband were living in [Town 5], the neighbouring suburb. The Tribunal queried the applicant that in her application she stated she was working as a freelancer doing [Occupation 3] from February 2016 and gave her address as being in [Town 1] in Malacca state. The applicant replied that the nature of the work was such that she lived where the [work] was. When asked, she said she was staying with friends, not far from where her sister lived.
The Tribunal queried the applicant regarding how long before she returned to Australia [in] August 2016 this incident occurred. The applicant said she thought it was approximately three weeks before she returned. The Tribunal asked if anything else happened over that period apart from her cousin’s husband sending her text messages and calling her. She said he came to her sister’s house in [Town 3], Selangor, and offered to take her and her sister out for a meal. She said she declined so her sister did not go either.
The Tribunal asked the applicant if she ever confided in her sister or anyone else about what had happened. She said she did not, commenting that she did not dare to. When asked what she feared might happen, the applicant said that in her family her cousin’s husband is seen as a responsible, caring and loving person so no one would believe her if she told them what had happened.
The Tribunal observed that nearly six years have now passed since this incident and asked the applicant what she feared if she returned to Malaysia and made it clear to her cousin’s husband, if he contacted her, that she did not wish to have anything to do with him. The applicant replied that, knowing him, he will not stop until he gets what he wants. The Tribunal asked the applicant how well she knows him. She said she does not know him that well but added they are a close-knit family and often have family gatherings. The Tribunal asked why it would be an issue for her if she did not participate in any family gatherings where she knew her cousin’s husband would be present. She acknowledged she could do that but commented it would be a recurring memory and she would under pressure.
The Tribunal also suggested to the applicant that if her cousin’s husband tried to contact her she might send him a text message making it clear to him that she did not wish to have anything to do with him. The applicant said she did not have the strength to make a police report, adding that the issue also involves family honour and her family members would ask questions and would probably blame the single person. She said she fears looking at him and does not want to talk with him. When the Tribunal reiterated that she might consider sending him a text message, the applicant said she does not wish to have any more communication with her cousin’s husband.
The Tribunal observed that she might also return to Malaysia and settle in a location where she would not come into contact with her cousin’s husband. The applicant commented that it would still be easy for him to find her.
The Tribunal also discussed with the applicant advice from the current DFAT Country Information Report relevant to the availability of effective protection in Malaysia.[4] DFAT indicates that Malaysia has strengthened its domestic violence legislation in recent years (2017), expanding the definition of domestic violence, providing for enhanced protections such as Emergency Protection Orders (EPOs), as well as interim and standard protection orders, with penalties including fines of up to MYR5,000 and/or imprisonment for up to two years for breaches of protection orders. DFAT indicates there are support services that she could draw on for referrals and crisis intervention, counselling and legal assistance, if necessary, such as the Women’s Aid Organisation NGO, which has a hotline, and One Stop Crisis Centres (OSCCs) which are now in 102 Malaysian hospitals nationwide. DFAT also indicates that the Royal Malaysia Police, notwithstanding some concerns about corruption (which the government has sought to address including through the introduction of an Integrity and Standards Compliance Department), has approximately 115,000 officers operating from over 800 police stations across Malaysia and is considered by local and international sources to be a professional and effective police force. DFAT also comments that most cases in the Malaysian civil courts, which hear the majority of Malaysia’s criminal and civil law matters, comply with the rule of law and legal procedure.
[4] DFAT Country Information Report, Malaysia, 29 June 2021, sections 3.124-3.130, 5.5-5.9 and 5.14-5.18.
The Tribunal commented that the country information suggests effective protection measures would be available to her in Malaysia if she needed it, as there are appropriate criminal laws, a reasonably effective police force and an impartial judicial system, and the protection is accessible from well-staffed police stations across Malaysia and is durable.
The applicant commented that she would rather keep quiet and not seek assistance from anybody because of the shame of what occurred. She added that she is also not very aware of government bodies and NGO’s, and the services they offer. The Tribunal observed that she could contact the Women’s Aid Organisation, details of which she could find online, if necessary, and they as well as the OSCCs can refer her to other services if needed. The applicant commented that she does not wish to hear people speaking badly about her.
Assessment
Identity
On the basis of the copy of her passport submitted to the Department,[5] the Tribunal accepts that the applicant is a citizen of Malaysia and that her identity is as claimed. The Tribunal accepts that Malaysia is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Malaysia, there is a real risk she will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it 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 (see MIMA v Rajalingam (1999) 93 FCR 220).
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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
The Tribunal accepts that the applicant is a [age] year old Malay Muslim women who has never married.
Noting that the applicant spent nearly three months in Australia on a visitor visa ([from] February 2016 [until] April 2016) and indicated in her protection visa application that she returned to Malaysia at that time because her mother was unwell and she needed to care for her, the Tribunal has some concerns that the applicant was intending to remain in Australia before the claimed incident with her cousin’s husband in July 2016.
Notwithstanding this concern, and noting her account of the claimed incident at hearing was broadly consistent with her written account in the application, the Tribunal accepts that the applicant was sexually molested, propositioned, slapped and threatened by her cousin’s husband in July 2016. While the applicant had no evidence of any text messages sent to her by her cousin’s husband in the aftermath of this incident, the Tribunal accepts it is plausible he sent her text messages and called her as claimed. The Tribunal accepts it is also possible that subsequently he came to her sister’s house, which she indicated was in the same neighbouring suburb where she had been staying with friends, and asked her and her sister out for a meal.
While the applicant wrote in her statement of claims that she felt insecure wherever and whenever she went out because she felt someone was following her and watching her, she did not present any evidence at the hearing to indicate that her cousin’s husband or anyone else was physically stalking her in the aftermath of the incident in July 2016.
The Tribunal accepts that the applicant did not wish to report the matter to police or discuss it with any family members because of issues to do with shame and family honour, and the concern that there might be a suggestion from some that she somehow was responsible for what occurred.
The Tribunal does not accept, however, that the applicant faces a real chance of suffering persecution involving serious harm from her cousin’s husband if she was to return to Malaysia. The Tribunal notes that nearly six years have passed since July 2016 and the applicant has not indicated that her cousin’s husband has continued to try to maintain contact with her while she has been in Australia. The applicant has indicated that she does not wish to see or think about her cousin’s husband. This is understandable. The Tribunal considers that, on return to Malaysia, the applicant might wish to avoid any contact with her cousin’s husband. The Tribunal accepts this might be difficult and possibly unpleasant for her, and may cause some issues with her family relationships, but does not consider that these issues amount to serious harm. If the applicant was to have contact with her cousin’s husband, she would need to be on guard to ensure she was never in a situation where she was alone with him. This may also lead to some difficult/unpleasant situations (due to the need to explain her behaviour to family members), but the Tribunal also does not consider this amounts to serious harm.
If the applicant’s cousin’s husband contacted her either by phone or text message, the Tribunal considers she could respond by text message (retaining his message as evidence if he texted her) and making it clear she wants to have no contact with him (and retaining this evidence). If he persists in contacting her, the Tribunal considers the applicant can seek advice from the Women’s Aid Organisation NGO and seek their support and referral to take police/legal action against her cousin’s husband if necessary. While the Tribunal accepts that the applicant may not wish to do this, because of her concern that she may be blamed for the situation and it may damage her family relationships, the Tribunal finds this may be something that she has to do, if the situation arose where her cousin’s husband continued to harass her. The Tribunal does not accept that any unpleasantness (in the form of embarrassment/feelings of shame) arising from raising the matter would amount to serious harm. Considering the relevant country information discussed above, the Tribunal considers that the applicant could access effective protection measures in Malaysia, if necessary, which are durable and which consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
Does the applicant have a well-founded fear of persecution if she returned to Malaysia?
Having carefully considered the applicant’s claims, for the reasons given above, the Tribunal does not accept that there is a real chance that she will suffer persecution involving serious harm from her cousin’s husband, other family members, or any authority, organisation, person or group, for one or more of the five reasons mentioned at s.5J(1)(a), if she was to return to Malaysia, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, the Tribunal has noted that 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 relation to the ‘refugee’ criterion.[6]
[6] 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] and Flick J at [342].
Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from her cousin’s husband, other family members, or any authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
In reaching this conclusion, the Tribunal finds that, while it is by no means certain that her cousin’s husband would again seek to harass her if she returned to Malaysia, should the applicant need to access domestic violence support services, she could access state protection through the available services such that there would not be a real risk that she would suffer significant harm from her cousin’s husband.
Member of the same family unit
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, she does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
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 2468

14 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies