1707181 (Refugee)

1707181 (Refugee) [2017] AATA 2965 (3 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707181
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Luke Hardy
DATE:3 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 October 2017 at 3:02pm
CATCHWORDS
Refugee – Protection Visa – Malaysia – Race – Chinese – Credibility issues
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 [in] March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The [applicant] is a citizen of Malaysia born in [year]. He arrived in Australia on a [visa] [in] October 2016 and applied for a protection visa on the last day of his [visa], [in] January 2017. The delegate refused to grant the visa [in] March 2017. [The applicant] subsequently sought review by the Tribunal.
[The applicant] appeared before the Tribunal on 12 September 2017 to give evidence and present arguments. He is unrepresented. The hearing was facilitated by an interpreter in the Mandarin-English medium.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, in the event that he is not, on complementary protection grounds. Another issue in this case is [the applicant]’s reliability as a witness.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the department
In his protection visa application, [the applicant], who lived and worked on Penang island, claimed that a group of Malays came to “our house” on some unspecified occasion and blamed his family for being involved in the 13 May 1969 anti-Chinese riots in Kuala Lumpur. He said the gang told his family to depart Malaysia. He said the gang carried a knife and a pistol, using the latter to knock him on the head. He said they “came once again”, leaving him no choice but to seek protection abroad.
In another part of his protection visa application form, [the applicant] said it was the handle of the knife, rather that the pistol, which was used to hit him. He said the pistol was pointed at him and put to his chest. He said the assailants cut his hand.
[The applicant] claimed he reported the gang to the police who asked him to leave the station without taking a report. He claimed the police did not even suggest anything that he might do for himself. Later in the application, he said the police told him to go home and await information resulting from their “check” as to who the assailants might be. He said the police told him to “be more cautious”.
[The applicant] claimed he tried to move to another place “very far” from where he lived but was found by the gang after only a few days. He said he tried “to relocate again and again” but found it too hard.
[The applicant] claimed he took a holiday in [Country 1] from [September] to [October] 2016, returning to Malaysia, apparently voluntarily. The return date does not sit with his having arrived in Australia [in] October 2016. I checked the copy he made of his passport and it says he returned to Malaysia [in] September 2016, about two weeks before departing for Australia.
Whereas [the applicant] claimed in his protection visa application that the gang’s pressure on him affected his capacity to work in Malaysia, he also said he worked in the same business in Penang from 1998 right up until September 2016 when he went holidaying in [Country 1].
[The applicant] claimed that ethnic Chinese in Malaysia are less confident of being able to enjoy protection from harassment in Malaysia.
Independent country information
The DFAT Country Information Report: Malaysia, dated 19 July 2016, provides some background to the 13 May 1969 episode and to how policies and laws implemented to promote the Malay population in Malaysia have had the effect of discriminating against other ethnic groups including ethnic Chinese:
2.1 Malaya achieved independence from the United Kingdom in 1957. In 1963 Malaya joined together with Singapore, Sabah (formerly British North Borneo) and Sarawak to form the Federation of Malaysia. Singapore subsequently left the Federation in August 1965.
2.2 The United Malays National Organisation (UMNO), the largest and most dominant party of the Barisan Nasional coalition (BN, English: National Front) has ruled Malaysia since independence. BN, currently led by Prime Minister Najib Razak, was returned to power on 5 May 2013 for the thirteenth time, albeit with a reduced parliamentary majority.
2.3 Historically, race has been a prominent issue in Malaysia and relations between Malaysia’s diverse populations have at times been tense. On 13 May 1969, race riots between ethnic Chinese and ethnic Malays took place in Kuala Lumpur, resulted in 600 deaths. This event led to BN’s application of affirmative action policies that favour ethnic Malays and indigenous groups (bumiputera – ‘sons of the soil’) over other ethnicities in areas such as business, education and the civil service. Elements of these affirmative action programs continue today…
Ethnic Malays and indigenous groups—Bumiputera
3.1 A Malay person is defined under the Constitution as being an individual with characteristics that include professing the religion of Islam, speaking the Malay language and conforming to Malay customs. The Constitution gives ethnic Malays and other indigenous groups, collectively known as bumiputera, special status. Government regulations and policies implement preferential programs to boost the economic position of bumiputera. Such programs promote increased opportunities for bumiputera to access higher education, careers within the civil service, commercial opportunities and housing. Some industries maintain race-based requirements that mandate a certain level of bumiputera ownership.
3.2 Until recently, public universities were required to meet a quota of 70 per cent bumiputera students before admitting students of other ethnicities. Bumiputera make up 85 per cent of the civil service. The 2016 national budget allocated around 11.5 per cent of the budget, or RM30.6 billion (approximately AUD10.2 billion), to advance the bumiputera agenda. This includes various entrepreneurship programs, educational placements and scholarships and equity ownership schemes that are separate and more extensive than those assigned to the Chinese Malaysian or Indian Malaysian communities. The budget also increased public sector salaries, which mostly employs bumiputeras. Affirmative action policies for bumiputera economic inclusion are contained in the Eleventh Malaysia Plan 2016-2020. Such positive discrimination policies have succeeded in creating a significant urban Malay middle class. However, some Malays still face relatively high rates of poverty, particularly in rural communities.
3.3 Given their preferential treatment, DFAT assesses bumiputeras would very rarely face discrimination or violence on the basis of their ethnicity.
Chinese Malaysians
3.4 Chinese Malaysians constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians.
3.5 Chinese Malaysians make up a high percentage of the professional and educated class, dominate business and commerce sectors and have high relative wealth compared to other ethnic groups in Malaysia. The majority of ethnic Chinese are concentrated in the west coast states of Peninsular Malaysia with significant percentages (30 per cent and above) living in the large urban centres, including Kuala Lumpur, Penang, Johor, Perak and Selangor. Credible Chinese Malaysian community contacts have told DFAT that young Chinese Malaysians increasingly seek economic migration opportunities abroad.
3.6 Chinese Malaysians freely participate in political life, represented by ministers in the current cabinet and participation in opposition parties. The largest Chinese party was traditionally the Malaysian Chinese Association (MCA), a component of the Barisan Nasional (BN) coalition. The MCA won seven seats at the 2013 election, down from 15 in 2008. An increasing number of Chinese support the Democratic Action Party (DAP), one of three opposition parties of the Pakatan Harapan coalition. The DAP won 38 seats at the 2013 election, a significant increase from 28 seats in 2008. The DAP is often portrayed in pro-government media as ‘anti-Malay’. Chinese Malaysian community members told DFAT that, while they believed this was mostly a political tactic, it did contribute to a sense of ethnic division and isolation from mainstream Malaysian society. They also commented that the 1MDB corruption scandal had galvanised anti-government support amongst Chinese Malaysians and had led to greater political engagement. For example, Chinese Malaysians were prominent in and helped contribute to the higher overall turnout at the 2015 Bersih 4 rallies throughout Malaysia compared to earlier protests in 2007, 2011 and 2012. All four Bersih protests have called for transparent government and strengthened parliamentary democracy in Malaysia.
3.7 There are comparatively fewer ethnic Chinese in the Malaysian civil service. The predominant use of the Malay language is a major barrier to Chinese employment in the civil service. On the other hand, contacts told DFAT that Chinese employees are preferred in the private sector, mostly because many business owners are Malaysian Chinese.
3.8 Chinese Malaysians are able to access public primary or high school education but increasingly choose to attend one of the 1,284 Chinese primary schools and 61 Chinese secondary schools. This is due to concerns about the quality of public education and their perception that the public curriculum is influenced by Islam. Despite the removal of government-sanctioned ethnic quotas for public universities in 2002, admission decisions remain heavily biased towards ethnic Malays. Malaysia’s matriculation programs favour bumiputera students applying for entrance to state universities. Some ethnic Chinese are not awarded a place in public universities despite having high matriculation scores. Since the formation of private universities in Malaysia, ethnic Chinese have consistently formed the bulk of the students within Malaysia’s non-government universities. An increasing number are choosing to complete their tertiary studies abroad.
3.9 On 12 to 13 July 2015 a disturbance, referred to as the ‘Low Yat riot’, occurred at a popular retail centre in central Kuala Lumpur. More than 100 Malays shouted anti-Chinese slogans, destroyed property and attacked bystanders following social media reports that a Chinese Malaysian vendor cheated a Malay man over a fake smart phone. Police detained 25 people for rioting, sedition and theft. Officials dismissed any fraud by the vendor, and downplayed racial elements blaming the outburst on social media. Credible contacts told DFAT that the incident was not indicative of a broader trend of societal violence against Chinese Malaysians.
3.10 DFAT assesses that Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.
Some historians argue, meanwhile, that the 13 May violence was orchestrated by (the long-standing current ruling bloc) UMNO politician Abdul Razak Hussein, as part of a bid to oust Prime Minister Tunku Abdul Rahman.[1]
[1] Soong, K.K., ‘Racial conflict in Malaysia: against the official history’, Race & Class, vol. 49: no.3, 2008, pp.34-35
Whether the violence was orchestrated by UMNO politicians is not certain. However, what is clear is that the 13 May violence still causes great distrust of UMNO by many ethnic Chinese. This suspicion and distrust was renewed during the 2006 UMNO conference, when “[s]everal high-profile speakers… referred to the need to defend their race and religion with their own blood and warned non-Malays (especially the Chinese) against any threats to the special rights for Bumiputeras.”[2] Kua Kia Soong, director of Malaysia’s human rights organisation Suara Rakyat Malaysia (Suaram) states that “[i]n the course of the proceedings, Malaysians were warned not to question the status quo ‘or else… May 13 might happen again!’ One delegate after another proceeded to issue racist and patently seditious threats to non-Malays in the country.”[3]
[2] ‘World Directory of Minorities: Malaysia – Chinese’, Minority Rights Group International website, 2009,
[3] Soong, K.K., ‘Racial conflict in Malaysia: against the official history’, Race & Class, vol. 49: no. 3, 2008, p.34
I have had regard to the following independent country information about the population of Penang general and Georgetown in particular; in greater detail and context, that information is as follows:
Penang is a state with a predominantly Chinese population. In 1970, the Chinese made up 56.27% of the population. However, the percentage of Chinese population decreased to 53.86% in 1980, 49.17% in 1991 and 44.83% in 2000. In 2005, the Chinese represented 43.01% of the Penang population, with a 13.26% reduction in about 30 years. The Malays, on the other hand, comprised of 30.57% of the state population in 1970. The Malay population increased steadily to 33.66% in 1980, 38.09% in 1991 and 40.59% in 2000. In year 2005, the Malays comprised of 40.87% of the Penang population. The Indian population experienced a slight decrease in percentage from 11.56% in 1970 to 11.39% in 1980, 10.60% in 1991 and 10.19% in 2000. In 2005, the Indians comprised 10.02% of the Penang population.[4]
[4] National Higher Education Research Institute (2010), “The State of Penang, Malaysia: Self-Evaluation Report”, OECD Reviews of Higher Education in Regional and City Development, IMHE, see also
According to the national population and housing census of 2010[5], the ethnic Chinese population in Penang in 2010 was evidently just over 53 per cent. The relative scale of Chinese and Malay populations appeared to be heading loser to level in 2015 with a projection that without further Ethnic Chinese migration to the island Malays would start to outnumber Chinese on Penang in the near future.[6]
[5] see also
[6] “Will the Chinese continue to dominate politics in Penang?”, Malaysian Chinese News, 9 June 2014,
According to independent evidence, Georgetown alone has several prominent Chinese temples visited by ethnic Chinese from throughout Malaysia and round the world.[7] I was able to cite around nine Buddhist and Daoist temples from a casual glance at Google Maps.[8] There are several easily-accessible You Tube videos[9] of Daoist, Buddhist and other Chinese religious sites on Penang.
[7] “Chinese Temples in Penang Malaysia Photo Gallery” at “With it's [sic] large Chinese community, there are plenty of Chinese Temples in Penang and Georgetown boasts the best and oldest temples on the Island.”
[8]
[9]
I have not been able to find any independent reporting about gangs invading the homes of ethnic Chinese residents in Penang or any other part of Malaysia to blame the residents for the 13 May 1969 episode and/or to demand under threat of violence that they leave the country. Whereas the applicant suggests that this may be due to the police not adequately recording allegations of such behaviour, I have not found evidence of other independent networks reporting or expressing concern about gangs like the one described in this application.
Evidence to the Tribunal

[The applicant] said his problems began around [July] 2016. However, details of [the applicant]’s oral evidence at the Tribunal hearing were inconsistent with his written claims, and on review of the evidence overall, he did not satisfactorily resolve these discrepancies.
Whereas [the applicant] claimed in his protection visa application that his family was told under threat of violence to leave Malaysia, he told me that he alone, in the presence of his family during the alleged home invasion by the gang, was told to leave. He suggested that this was because both of his parents were senior. I put to him that this seemed odd since his parents were likely alive in 1969 whereas he did not yet exist, and he said he did not know why they singled him out. At one point in the hearing, he articulated both versions of the demand: he said the gang told his family, “If you can, move out, all of you,” and clarified this to mean that they just told him to get out of Malaysia.
Whereas [the applicant] told the Department that the police advised him to await the results of investigations, he told me that the police told him they would not spend any time pursuing the matter. He said they told him to resolve the matter with the gang on his own. I put to him that in his protection visa application form, he had claimed that the police did not even tell him what to do or what he could do. He then claimed they told him to go back and wait for more information from them. Ultimately, he gave inconsistent evidence within the same hearing as to whether the police said they would or would not investigate the matter. He did not resolve this discrepancy.
Although [the applicant] claimed to the Department that he fled to a place that was very far from his home in Penang, he told me that he relocated to “another city” which he did not name that was “not very far” from his home. When I put to him that his oral evidence clashed with his original written claim, he said “I didn’t say ‘very far’.” I reiterated that this indeed was what he had claimed
[The applicant] also gave me inconsistent evidence as to whether he came to Australia after being located by the gang at the relocated residence or moved back to his family home before coming here. In response to being asked about this apparent discrepancy, he said he only went back to his family home for long enough to pack his bags for Australia.
[The applicant]’s oral evidence indicates that his family back in Penang has not continued to suffer any of the harassment it purportedly faced before he came to Australia.
I put to [the applicant] that I could find no independent evidence of any such practice by Malay gangs in Malaysia and he said that it is reported in the news. As at the time of decision, this is still an unsupported claim. I put to [the applicant] that half of Penang’s population is Chinese and he said that where he lives, [distance] drive from the capital Georgetown, the local population includes quite a lot of Malays. I asked [the applicant] why he thought his problems did not start until [July] 2016 and he said he did not know.
I asked [the applicant] to tell me who had helped him fill out his protection visa application form. He named a friend called “[Friend 1]”, but went on to indicate that this was a family name only say he did not know the rest. He said he dictated his claims to [Friend 1] who wrote them into his protection visa application form. He said that everything in his protection visa application was his own story.
Under the protocols of s.424AA of the Act, I put to [the applicant] that I had before me a number of other protection visa applications[10], allegedly assisted by [Friend 1], that contained almost claims in generally the same order: the gang, the 13 May 1069 justification, the demands to leave Malaysia, the pistol, the pistol-whipping, the knife, inaction by the police, attempts to relocate to another city being thwarted by the gang finding the applicants. I put to him that I was concerned about the near-identical nature of his claims and the terms used to describe them, as he claimed to me that he dictated his own story to [Friend 1]. I put to him, in essence, that it looked more like he had received the story from someone else, rather than told his own to [Friend 1]. I clearly identified the issue here as a matter of [the applicant]’s credibility and reliability in this case. I put to him that subject to comments and responses he might give, the identical nature of his claims with others would be the reason or part of the reason to refuse him a protection visa. I asked [the applicant] whether he wished to comment and/or respond immediately or ask for more time, in which case I would consider such a request.
[10] E.g., 1710104 and 1710105
In response, [the applicant] opted to comment and respond immediately. He said he was telling the truth and that all that he described in his protection visa application form had happened to him. I note here that he appeared to be relying more now on the claims in the protection visa application than on the ones he had just made under oath or affirmation at the hearing. [The applicant] went on to say that he asked [Friend 1] to help him. He said he had paid [Friend 1] $300.00 to assist him. He said that [Friend 1] is not a registered migration agent. I put to [the applicant] that [Friend 1] may have committed an offence in taking any money to assist with the completion of his protection visa application, whatever the quality of the contents. In response, [the applicant] said he suggested [Friend 1] take the money for his trouble.
[Friend 1] advised at the hearing that he has no other claims relating to “race” apart from the claims about the gang, and no other claims relating to serious or significant harm in Malaysia.
[The applicant] claimed in his protection visa application to be a Christian but in his evidence to the Tribunal he ruled this out as an issue of potentially relevant concern.
Findings in relation to s.36(2)(a) of the Act
I have considered whether [the applicant]’s claims might be nearly identical to the claims in other protection visa applications before me (including but not limited to the two cases cited) due to there being some kind of spate of intimidating Malay gangs ordering, on threat of violent death, that young ethnic Chinese leave their Chinese families and depart Malaysia. However, if this were so it would be reasonable for [the applicant] to be able to provide independent evidence of such a phenomenon and he has not done so.
I find on the evidence of identical claims in other cases that [the applicant] is not the origin of the claims he has made in his protection visa application. In view of the near “boiler-plate” nature of [the applicant]’s claims, and in view of the discrepancies between some of the written claims and what [the applicant] told me about himself, I do not accept that he is being truthful about what happened to him in Malaysia.
Even putting to one side the evidence of [Friend 1] being the source of [the applicant]’s written claims, and simply treating them as claims [the applicant] has made about himself, I give weight to the numerous unresolved discrepancies between the original claims and the oral evidence [the applicant] gave at the Tribunal hearing.
Either way, I find [the applicant] a comprehensively unreliable witness in this matter.
Putting aside the claims about the gang, I accept that some policies and other factors give rise to discrimination against ethnic Chinese in Malaysia but I am not satisfied that these would give rise even cumulatively to a real chance of persecution in [the applicant]’s case.
On the evidence overall, I am not satisfied that [the applicant] faces a real chance of persecution in Malaysia in the reasonably foreseeable future for any of the reasons provided under s.5J(1)(a) of the Act.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person may meet the criteria for the grant of a protection visa under s.36(2)(aa) 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Significant harm is exhaustively defined in s.5(1) of the Act. In particular, “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” involve an intentional element: an intention to inflict severe pain or suffering, whether physical or mental; or an act or omission intended to cause, extreme humiliation which is unreasonable. (See ATTACHMENT below for a detailed citation of the Act.)
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" of persecution: MIAC v SZQRB [2013] FCAFC 33.
[The applicant]’s claims to complementary protection rely essentially on the same fact as do his refugee claims. As shown above, I have found him an unreliable witness with regard to those claims.
Given my findings of fact above, and given that the "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" of persecution, I find that [the applicant]’s claims can no more succeed as complementary protection claims than they do as refugee claims.
On the evidence before me, I am not satisfied 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 that [the applicant] will suffer significant harm. Accordingly, I am not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

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

[2017] AATA 2965

3 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies