1707501 (Refugee)

1707501 (Refugee) [2022] AATA 1667 (3 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1707501
COUNTRY OF REFERENCE: Malaysia
MEMBER:Damian Creedon
DATE:3 April 2022
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 3 April 2022 at 3:50pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – pursued by Inland Revenue Board (IRB) of Malaysia for alleged unpaid tax – discrimination against ethnic Chinese – economic hardship – no country information of threats by IRB officers – numerous incidents of fraud, or “scamming” through impersonation of IRB officials – victims appear to be selected on basis of their actual or perceived wealth – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background

The applicant, a [age]-year-old citizen of Malaysia, arrived onshore [in] August 2016 holding an Electronic Travel Authority (Class UD) (Subclass 601) visa.
The applicant applied for a protection visa on 23 November 2016 and was granted a bridging visa which remains in force.
Protection visa application
In his protection visa application and supporting materials the applicant claims to fear returning to Malaysia on account of political and economic issues.
Claims
In his protection visa application, the applicant makes a series of claims which may be summarised as follows:
a.The applicant claims he left Malaysia because of political and economic issues.
b.He claims he fears he will have no job and cannot support himself and his family.
c.He claims his friend “[named]” suggested he come to Australia.
d.He claims he applied for many jobs in Malaysia but failed because of the economy and political issues in Malaysia.
e.He claims the authorities cannot protect him because Malaysia has a bad economy, and the issue prevails in the whole of Malaysia.
The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision.
Application for review
The applicant was legally represented in relation to the review.
Evidence
The Tribunal has before it a range of material, including, relevantly:
a.A copy of the applicant’s Malaysian Passport;
b.The applicant’s protection visa application forms signed on 21 November 2016;
c.The delegate’s protection visa decision record dated 22 March 2017, a copy of which the applicant provided to the Tribunal (delegate’s decision record); and
d.The review application form lodged with the Tribunal on 7 April 2017.
The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) “DFAT Country Information Report Malaysia”, 29 June 2021 (DFAT Report).
Pre-hearing statements
By a statutory declaration made 18 March 2022 the applicant provided the following information to the Tribunal, in summary:
a.Between 2008 and 2013 the applicant worked in [a] company in Sarawak, Malaysia.
b.After leaving that job, between 2014 and 2016 the applicant started and ran his own business named [Company 1] “engaged in [a line of work]’.
c.In or about February 2015 the applicant received a letter from the Inland Revenue Board (IRB) “concerning unpaid tax”.
d.He investigated this claim with his accountant, confirmed that he had no outstanding tax, and “approached” the IRB but received no response.
e.In or about March 2015 three “government officers” attended his business, claimed that he had failed to pay the outstanding tax and presented him with a “letter” for the unpaid tax.
f.The applicant states (uncorrected and unnumbered):
Although I recognized one of them as an Officer of District Council [named], they failed to provide their identification.
I recognized the Officer because he has raided my business for hygiene issues.
They left after they presented the Letter.
g.The applicant states that in or about May 2015 three “Malay” officers attended his business, one showing an IRB issued identity; he states (uncorrected and unnumbered); he states:
They claimed that they would put me into prison if I failed to pay the tax requested.
h.The applicant states that the officers presented him with a letter from the Chief Secretary of the Malaysian Parliament dated [May] 2015 concerning outstanding tax payable (a translated copy was provided and will be discussed below).
i.The applicant then states (uncorrected and unnumbered):
They threatened me to cut off my fingers off if I failed to pay the tax.
j.The applicant claims to have “approached” the police twice over this threat, but the police “never responded” to him.
k.The applicant states that in or about August 2015 he paid the “tax required” from a joint bank account held with his wife, although he did not believe it was payable.
l.The applicant states that in or about November 2015 three “Malay” officers attended his business and requested tax “overdue”.
m.He states that in January 2016 he “prepare[d] the closure of [his] business” as he was unable to handle the “consistent false claim on tax evasion”.
n.He states that:
i.in or about January 2016 he received a letter from the IRB dated [January] 2016 (a translated copy was provided to the Tribunal and will be discussed below);
ii.in or about February 2016 he sought assistance from the local “Kapitan” (a translated copy of a letter was provided to the Tribunal and will be discussed below).
o.The applicant states that the “Kapitan” assisted him to approach the police who advised that the “case was under investigation” and that in or about March 2016 his business was closed.
p.Under the heading “Potential Racial Discrimination” the applicant states (uncorrected and unnumbered):
As a societal discrimination by Malay community, there is a general impression that Chinese community is wealthy.
Such impression has been asserted by come Malaysian government officers.
Therefore, I suspected that the raid and non-response by the police are collectively caused by such impression, as official discrimination, and genuine fear.
q.The applicant states that he is unable to relocate within Malaysia as he would lose his business network and it would not be feasible for him to re-establish his business network.
r.He states that he suffered significant economic hardship as a result of the raid and the closure of his business.
By a statutory declaration made 18 March 2022 the applicant’s [wife], provided the following information to the Tribunal, in summary:
a.[His wife] states that from 2014 to 2016 she worked as an assistant in [Company 1] which she describes as “our business”.
b.She states (uncorrected and unnumbered):
In or about March 2015, I witnessed that there were three persons, claiming as government officers, coming to our business and informed that we were suspected of tax evasion.
From my observation, those persons requested the Applicant to repay tax overdued with Tax Notification provided to the Applicant.
c.[His wife] states that the three persons failed to provide their identification and left after presenting the Tax Notification.
d.She states that, from her understanding, all tax was paid without any evasion.
e.[His wife] states that in or about May 2015 three “Malay” officers attended their business, with one showing his identity issued by the IRB; she states (uncorrected and unnumbered):
I heard that they warned the Applicant that they would imprisoned him if he failed to pay the tax requested.
f.[His wife] states that in or about August 2015:
I note that the Applicant has paid for the tax with our joint bank account.
Documents provided prior to the hearing
The applicant provided translated copies of three documents to the Tribunal prior to his hearing. The Tribunal has read and had regard to the documents and has no reason to doubt their authenticity. Details of the documents are as follows:
a.An unsigned printed letter, not on letterhead, dated [May] 2015 purportedly from the “Secretary General” of the Parliament of Malaysia or “Chief Administrator” of the Parliament of Malaysia, addressed to the applicant, and demanding payment of income tax.
b.A signed letter under the letterhead of the Inland Revenue Board of Malaysia, dated [January] 2016, addressed to the applicant, and alleging a failure to pay tax on company income “for the years” 2014 and 2015.
c.An undated handwritten letter from “Kapitan [name]” in the following terms (uncorrected):
I,[name deleted], is a Kapitan appointed by the Malaysian Government. [The applicant] is a businessman of [Sarawak]. He has been treated illegally for suspicion of tax evasion. He was personally abused upon failure of extortion of the amount claimed. He came to me for help. After in-depth understanding, I reported the matter to the police and made a complaint to the coordination office for investigation. Unfortunately, my involvement failed to help [the applicant] resolve the issue. I have given [the applicant] the permission to use this statement as evidence.
The applicant also provided the Tribunal with a copy of a report entitled “Malaysia Racial Discrimination Report 2020” published by Pusat KOMAS.[1] The Tribunal has read and had regard to this document.
Hearing
[1] According to its website, Pusat KOMAS is “…a human rights popular communications centre set up in August 1993 to empower especially the indigenous peoples, urban poor, workers and civil society organisations to advocate for human rights in Malaysia”; see: < accessed 1 April 2022.
The applicant appeared before the Tribunal on 25 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Applicant’s oral evidence
The following is a summary of the applicant’s evidence to the Tribunal:
a.The applicant is [age] years old and arrived in Australia in August 2016; he is married, and his wife is resident with him in Australia; he has two [children]; the applicant’s youngest child is resident in Australia with him and his wife, his eldest child lives in Malaysia with his mother. The applicant’s parents are separated and live in Malaysia.
b.The applicant completed his high schooling in Malaysia. After leaving school he “did some casual jobs” before working for a business involved in [a line of work]. The applicant stated that he worked for that business for five years between 2008 and 2013.
c.After leaving that business the applicant started his own [business].
d.When asked by the Tribunal why he came to Australia, the applicant stated that he came to seek protection. When pressed, the applicant stated that he had been “chased by people for tax”. When further pressed, he stated that he had been pursued by the Inland Revenue Board (IRB) of Malaysia which he described as the “Malaysian ATO”. He agreed with the Tribunal’s proposition that the IRB are the official government body in Malaysia responsible for collecting taxes.
e.When pressed as to how much it was alleged that he owed in taxes that applicant stated that “at the start” there was an amount he could not remember, but “at the end” it was over [amount]. The applicant stated that the amount was still owing.
f.The applicant stated that he received a letter from the IRB in February 2015, but that it was not clear that he owed any tax. He stated that when he received the letter he spoke to his accountant who confirmed that he “did not have any issues”.
g.When asked whether he contacted the IRB to dispute the claim, the applicant stated that after he confirmed the situation with his accountant, he “talked” to the IRB who he said “took some information” and “said they would investigate”. The applicant stated that he received no further response from the IRB.
h.When asked what happened in March 2015 the applicant stated “three officials came to our place” and said that the applicant had “overdue matters”. The applicant responded to the officials, stating that he had checked and that no tax was outstanding.
i.When asked by the Tribunal whether the officials identified themselves, the applicant stated that there were “three of them”, he asked for “ID” and that they “just said they are from the government”. He stated (uncorrected):
One of them said your shop has an issue with hygiene standard, city council, tax office and city council.
j.The applicant stated that he still did not pay any money as a consequence of that visit.
k.When asked what happened in May of 2015, the applicant stated that three officials “of Malay ethnicity” attended at his business premises, including one that he recognised from a previous visit. He stated that the officials told him “you need to pay now”. The applicant stated that “at the start” he tried arguing with the officials but was told by one of the officials:
Do you believe I could arrest you, I could lock you up?
l.The applicant stated that he denied tax was owing, however one of the officials was “harassing him” and “was trying to hit” him. The applicant stated that he “stepped back” and one of the officials said to him:
I can chop off your hand.
m.In response to the Tribunal’s proposition that this is a very unusual thing for a government official to say, the applicant stated
I have been living there for 25 years, they are always targeting Chinese business owners, Chinese businesses.
n.The applicant stated that in response to this statement he went to tax office twice to ask for time to pay the debt. When pressed as to whether he complained to the police about the threat from the official, the applicant stated that he reported the matter to the Police in April. When further pressed, he stated that the Police were unable to help, but that as he was “worried” he went a second time and provided “an affidavit and statement”. He stated that he was told by the police that they would take action, and then promised that he would “pay off the amount”, but that he received no response from the police.
o.When asked by the Tribunal whether he made the decision to come to Australia to avoid the IRB the applicant stated:
Maybe because their behaviour is discrimination against Chinese.
p.He stated that he had received no protection from any authorities in Malaysia, that “they only protect local Malaysians”.
q.When asked what he feared about returning to Malaysia, the applicant stated that returning would have a “huge” impact on his economic status, that he still owes tax debt, and the “same thing” could happen again.
r.When pressed as to whether he could challenge the tax assessment in the courts in Malaysia he stated to the effect that the IRB claim he owes money but they “have not made an order”.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria of 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Assessment of Claims and evidence, and findings:
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, 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 her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

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.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Analysis of claims: unpaid tax liability
Overall, the applicant presented as an honest and truthful witness. His statements of fact were coherent, and, where possible, they were corroborated by written documents. In the circumstances the Tribunal extends to him the benefit of the doubt where it is appropriate to do so.
In particular the Tribunal is persuaded that between February 2015 and January 2016, the applicant was visited on several occasions by persons claiming to be government officers and representatives of the IRB and that these persons presented him with documents claiming that he had unpaid tax liabilities. The applicant claims that he recognised one of the officers as being an officer of the District Council.
The applicant further claims that in May 2015 two threats were made by the officers that visited his premises if he failed to pay the outstanding amount claimed, namely:
a.that the applicant would be “put into prison”; and
b.that the officers would “cut off” the applicant’s hand or fingers.
While the threat of imprisonment for persistent or gratuitous tax evasion is not implausible or unreasonable in circumstances where access to an impartial, effective justice system is available, the threat of physical violence of the nature described by the applicant is patently egregious and its authenticity open to question.
There is no country information available to the Tribunal, including the DFAT Report, to suggest that genuine officers of the IRB acting within their power can or do threaten Malaysian citizens with physical violence of the nature described by the applicant.
Country information does, however, reveal numerous incidents of fraud, or “scamming” through impersonation of IRB officials in Malaysia; for example, in an article dated 23 October 2017, World of Buzz reports:[2]
[2] See: < accessed 3 April 2022. “World of Buzz” describes itself as “…the leading social news site in Malaysia that delivers you the latest and most trending news in society, lifestyle, culture, and more.”
Malaysians Need to Beware of This Syndicate Posing as LHDN to Scam Their Money
Heads up, taxpayers! There’s a pretty elaborate scam going around now!
The Inland Revenue Board of Malaysia (LHDN) has recently revealed that there is a syndicate using their logo and name in order to scam Malaysian taxpayers into giving them money.
In a recent statement released by LHDN, they have explained that the syndicate is using a variety of methods to scam people like sending fake e-mails informing them that they have an overdue tax amount that needs to be refunded.
These fake e-mails also instruct recipients to disclose their bank details in order for them to make ‘transactions’.
“LHDN has never sent out e-mails to taxpayers asking them to reveal their bank account numbers. This is because bank account information is obtained through a declaration by taxpayers when they complete the Income Tax Return Form each year,” the statement reads, according to Sinar Harian.
“Aside from that, refunds of overpaid income tax are usually processed based on correct information and will be immediately credited by LHDN to the taxpayers’ bank accounts through Electronic Fund Transfers (EFT), through Tax Refund Vouchers (BBBC), crossed cheques, or Telegraphic Transfers (for those who have overseas accounts).”
The syndicate has also reportedly been sending fake Outstanding Tax Claim Letters to a number of taxpayers here.
LHDN stated that they will be sending out reminder letters to taxpayers with outstanding taxes so they could settle the amount, but they have to make sure that the letter is in fact genuine and not from the syndicate.
If you receive such a letter, you can confirm its authenticity by calling the Hasil Careline at 1-800-88-5436 or the Hasil Recovery Call Centre Hotline at 1-800-88-4726. You can also contact the LHDN branch’s phone number printed at the top of the letter.
“If taxpayers receive a letter that instructs them to make their income tax payments to anyone other than the Ketua Pengarah/Head Director of LHDN or LHDN Malaysia, the recipient of that letter can ignore those instructions and report it to LHDN.”
The statement also warned that people from this syndicate have pretended to be LHDN officers to visit taxpayers’ residences and force them to pay their ‘overdue taxes’.
“LHDN has never had officers visit taxpayers in person in order to collect tax payments in cash.”
“We only visit taxpayers’ homes during periodic operations like our KUTiP Operation. We usually collect overdue taxes via cheque or bank drafts under the name of LHDN or LHDN Malaysia’s Head Director,” the statement read.
They advised taxpayers who do receive a visit from suspicious officers to examine their Identity Cards (IC) and record their details. Taxpayers were also advised to ask the officers for an explanation for their visit and to record their contact numbers before calling the Hasil Careline to confirm the officers’ identities.
“Taxpayers are advised to always be careful and to contact LHDN if they have any concerns related to their income taxes,” the statement read.
So, remember to contact LHDN especially if you come across a suspicious e-mail, letter or officer. Stay vigilant, guys!
[Tribunal’s underlining; bolding in original.]
In a June 2020 article, The Star reports:[3]
[3] Rahim, R, The Star, “IRB warns of fraudsters impersonating its officers in ‘tax arrears’ scam”, 7 June 2020.
PETALING JAYA: The Inland Revenue Board (IRB) is warning the public about a syndicate involving fraudsters that are actively impersonating as its officers again.
IRB said in a statement that the syndicate uses several modus operandi including calling victims directly and asking them to pay for "outstanding tax arrears".
"The victims will receive a phone call from the syndicate and they are required to make the necessary payments by transferring money to a bank account that is not owned by IRB," the IRB said in a statement on Sunday (June 7).
IRB also revealed that sometimes victims will be informed that they were allegedly involved in tax evasion and money laundering activities, and threatened to freeze the bank account under the Anti-Money Laundering, Terrorism Financing and Proceeds of Unlawful Activities Act (Amla)
"The victim will then be connected to a ‘police office’ responsible for the case. To avoid the money in the account from being frozen, the victims will be required to transfer all of the amount to a third party account," said the IRB.
"Other victims will be contacted by the syndicate who are impersonating as police officers, informing them about supposed outstanding tax arrears. They will order them to download a fake mobile app supposedly from Bank Negara Malaysia or share private and confidential banking details in a fake website supposedly owned by Bank Negara for investigation purposes," added IRB.
There are also cases where victims will receive phone calls from fake " IRB officers" using phone numbers that are similar to IRB’s number through spoofing.
"They will be informed about supposed outstanding tax arrears of their companies registered under their names, it said.
"Victims are required to pay the outstanding amount by making a payment to a third party bank account other than the official IRB account," it further noted.
"Therefore, the public is again reminded to be careful with each phone call, message, email or letter received from IRB that are suspicious or dubious by taking several steps.
"They can check directly at the Hasil Care Line, customer care officer, IRB inquiries application or go to the nearest office," said IRB.
The public has also been reminded not to reveal any private banking or information, click on any links received via dubious emails, and make payments directly to IRB.
"Do not click on any applications from unknown users and do not return any phone calls from unknown numbers. Please check the IRB’s number at its official portal.
"We would like to stress that each of our officers is bound by the private tax privacy information regulations under the Income Tax Act 1967, where each private information of taxpayers will not be given to any third parties," added IRB.
For further information, please visit visit IRB’s Facebook page at
official Twitter account at >
In an article entitled “Inland Revenue Board urges Malaysians to be careful of scam syndicate seeking tax payment” the Malay Mail reports:[4]
KUALA LUMPUR, July 11 — The Inland Revenue Board (IRB) has advised the public to be wary of fraudulent tactics by syndicates to get taxpayers to make payments for outstanding Sales and Service Tax (SST) through false letters using the IRB’s name and logo.
In a statement today, IRB said the false letter contained personal details of the victim, including banking information and the amount of outstanding payment to be made, and signed by an IRB office, which was forged.
According to the IRB, the false IRB letter can be easily identified because the particulars on the SST is handled by another agency and not under IRB.
“IRB views seriously the matter and the public is advised to be careful with every call, email or dubious letter that they received by verifying the matter with IRB.
“Any tax payments should be made directly to the IRB account and not to any personal or third-party account,” it said.
For more information, the public can visit the IRB’s official portal at or call Hasil Care Line at 03-8911 1000 / 603-89111100 (overseas). — Bernama
[Tribunal’s emphasis.]
[4] Malay Mail, “Inland Revenue Board urges Malaysians to be careful of scam syndicate seeking tax payment”, 11 July 2020.
The IRB itself notes the following information on its “Beware of Scams” webpage:[5]
[5] See: < accessed 3 April 2022.
a.Under the heading “Tax Arrears / Tax Evasion”:
The victims are contacted by the syndicate through messages, phone calls, letters or e-mails regarding their tax arrears payment. They are then lured to transfer the money into the bank account which does not belong to the IRBM.
The victims are contacted by the syndicate who claim to be an IRBM officer or a police officer and these victims are ordered to download a fake mobile application of the Central Bank of Malaysia (CBM) or share their personal banking details on the fake website which is claimed to be operated by the CBM for investigation purpose.
b.Under the hearing “Collection / Field Audit / Tax Investigation”:
The victims receive visits by the syndicate members impersonating as IRBM's officers to collect taxes, conducting field audits and tax investigations. The victims are required to hand over the relevant documents and records and are told that they had filed an erroneous tax return or made a wrong declaration in income tax submission. The victims are then directed to make the outstanding tax arrears payment into the bank account not owned by the IRBM.
[Tribunal’s emphasis.]
Having considered the whole of the applicant’s evidence and the country information cited, and the entirely egregious nature of the threats the applicant claims to have received, the Tribunal is not persuaded that the approaches that the applicant received between February 2015 and January 2016, by individuals claiming to be from the IRB, were genuine. There is no country information that suggests that genuine officers of the IRB, acting within their powers, engage in the type of behaviour the applicant described.
Conversely there is ample country information to suggest that “scammers” in Malyaia engage in the preparation and service of fake documentation, including by personally visiting Malaysian citizens, in order to collect bogus tax payments. The applicant’s evidence, although coherent in its narrative, is plausible only in the context of this country information; accordingly, this is the construction of the material events that the Tribunal prefers.
Although DFAT reports “claims” by Chinese Malaysians of discrimination from the IRB on the basis of race,[6] there is no information available to the Tribunal to suggest that victims of “scammers” are selected on the basis of their ethnicity. Rather it appears that such victims are selected on the basis of their actual or perceived wealth; the Tribunal accepts that, in certain instances, there may exist a particular social group within a society that is defined by wealth.[7]
[6] DFAT Report para [3.10]
[7] See e.g.: Ram v MIEA (1995) 57 FCR 565, per Nicholson J at 570.
DFAT reports that, while corruption can limit the effectiveness of police action in Malaysia, DFAT’s overall assessment of police and court process there includes the following:[8]
5.5 The [Royal Malaysia Police (RMP)] is based on the British constabulary model, and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. SUHAKAM conducts some human rights training and workshops for police, state Islamic religious authorities and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
…
5.18 DFAT assesses that, while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.
[Tribunal’s emphasis.]
[8] DFAT Report.
The Tribunal also notes the efforts by the IRB to inform Malaysian citizens of the risk of “scammers” and to take steps to assist citizens to verify claims made in respect of unpaid tax via measures including a “care line” with published telephone numbers (accessible from overseas), a “live chat” and by encouraging citizens to visit their nearest IRB branch.[9]
[9] See: < accessed 3 April 2022.
Although the applicant claimed in written and oral evidence to have “approached” the IRB and made complaints to police, including with the assistance of the Kapitan, his evidence, when pressed on these issues, was shallow and unpersuasive. The Tribunal is not satisfied that the applicant pursued the veracity of the alleged tax debt using all of the protection avenues available to citizens in Malaysia, in particular those well published by the IRB.
Overall, having considered the available country information, the Tribunal is satisfied that effective protection measures are available in Malaysia[10] and that the State is able and willing to provide such protection.[11]
[10] s.5LA(1)(a) of the Act
[11] S.5LA(1)(b) of the Act
From the available country information, the Tribunal is satisfied that Malaysia has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.[12] It is further satisfied that the agency particularly concerned in the applicant’s case, the IRB, has measures available to protect citizens from “scams” or other unlawful abuses. Therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as claimed.
[12] S.5LA(2)
Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicant in respect of the IRB.
Therefore, having considered the applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Malaysia and finds that the applicant does not satisfy s.36(2)(a).
Complimentary protection.
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, 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'. The Tribunal has considered whether it 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 the applicant will suffer significant harm of any kind.
Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s.36(2)(a), the Tribunal does not accept that the applicant will suffer significant harm as a result of claims that he has an unpaid tax liability.
There is no real risk of significant harm if the applicant can ‘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’. To satisfy s.36(2B)(b) , the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one. In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities. However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, section 36(2B)(b) requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.
Having considered the country information as referred to above and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from the state and other authorities available to the applicant, if removed from Australia to anywhere within the applicant’s country of reference, would remove the real risk of significant harm. That is, the Tribunal finds that the RMP will provide effective protection to the applicant from physical harm and that the IRB provides a mechanism for the applicant to test the veracity of claims of unpaid tax. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia and does not satisfy s.36(2)(aa) in this regard.

In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, that there is a real risk that he will suffer significant harm of any kind.
Analysis of claims: Chinese ethnicity
The Tribunal notes the applicant’s claims to having been discriminated against as a Malaysian citizen of Chinese ethnicity. Although the applicant’s claims in this regard are premised upon his being the victim of “genuine” actions of the IRB, which the Tribunal has found not to be made out, the Tribunal has nonetheless considered the applicant’s claims of discrimination on the basis of race.
DFAT reports that Chinese Malaysians are one of the biggest overseas Chinese communities in the world and the second largest ethnic group in Malaysia, making up about 20% of the population. DFAT reports that there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians who freely participate in public life. DFAT acknowledges that Chinese Malaysians report being discriminated against by affirmative action policies favouring ethnic Malays, particularly in relation to higher education and government employment. [13]
Refugee criterion
[13] DFAT Report paras [3.8] – [3.12].
In view of this information the Tribunal accepts that Malays of Chinese ethnicity face a level of discrimination in Malaysia as a result of preferential treatment for ethnic Malays, particularly in relation to access to tertiary studies and government employment.
However, the fact that a person experiences some level of discrimination or a particular right is denied is not necessarily enough to establish persecution. The Tribunal does not accept there to be a real chance that any discrimination the applicant may experience for reasons of his Chinese ethnicity will rise to the level of serious harm in the particular circumstances of the applicant.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act.
While the Tribunal accepts that Malaysian nationals of Chinese ethnicity are subjected to a level of discrimination in Malaysia as a result of preferential government treatment for ethnic Malays, particularly in relation to access to tertiary education and employment, in the particular circumstances of the applicant, the Tribunal does not accept there to be a real risk the applicant will be subjected to discrimination rising to the level of significant harm as that term is exclusively defined in s 36(2A) as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
Analysis of claims: economic hardship
The Tribunal notes the applicant’s written claims for protection as set out in his protection visa application forms as set out at para [4] above. Although the applicant did not pursue these claims during his hearing, the Tribunal has nevertheless considered them.
Refugee criterion
The Tribunal accepts that the applicant does not wish to return to Malaysia because he would be unable to earn a wage there sufficient to support his family. However, the applicant made no claim that this circumstance would result from one or more than one of the five reasons enumerated in s.5J(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group.
Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established. Put differently, to fall within the ambit of s.5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, membership of a particular social group or political opinion. None of these reasons apply to the applicant’s claim. Even where an applicant may have a particular vulnerability, harsh conditions of general application in a receiving country in, and of, themselves do not give rise to a well-founded fear of persecution for the purposes of the refugee criteria.[14] The applicant made no claim to having a particular vulnerability. The applicant’s reference to “political issues” is vague, unsubstantiated, and unpersuasive.
[14]MIMIA v VFAY [2003] FCAFC 191 at [60].
In its most recent overview of Malaysia’s economy,[15] DFAT reports that:
2.11 Malaysia’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.
2.12 In 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.
[15] DFAT Report, p.11.
In view of this country information the Tribunal is not persuaded that the applicant would be subjected to significant economic hardship in Malaysia that threatens his capacity to subsist there. In particular the Tribunal notes DFAT’s expectation that the Malaysian economy will “rebound” in 2021, with Malaysia’s central bank forecasting growth of between 6 and 7.5 per cent.
The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution in Malaysia based upon a claim of economic hardship.
Complementary protection
The Tribunal accepts the applicant has concerns about being able to find work if he returns to Malaysia and the general economic situation there, including the impact on the economy of the COVID-19 pandemic. The Tribunal also accepts that he may face some difficulty in doing so at least initially, and in light of the ongoing COVID-19 pandemic. However, the applicant did not suggest that any person or group will seek to harm him for any reason relating to his economic situation. There is no evidence before the Tribunal that he has ever been discriminated against or otherwise prevented from obtaining work in Malaysia.
Accordingly, the Tribunal finds that any economic hardship the applicant might experience, if removed to Malaysia, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Malaysia. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
The Tribunal has considered whether any economic or financial hardship he might encounter as a necessary and foreseeable consequence of being returned to Malaysia would amount to “significant harm” as exclusively defined in s.36(2A) of the Act.
On the information and evidence before it, the Tribunal finds that any harm faced by the applicant due to the economic situation in Malaysia or to racial discrimination there would not involve the applicant being arbitrarily deprived of his life or being subjected to the death penalty. The Tribunal finds that experiencing some economic hardship or discrimination does not involve the applicant being subjected to torture, or to cruel or inhuman treatment or punishment. It does not involve his being subjected to degrading treatment or punishment. The Tribunal finds that the economic hardship or discrimination the applicant may encounter if he is returned to Malaysia due to the general economic and living conditions there (and taking into account the effects of the COVID-19 pandemic) would not be “significant harm” as that term is defined in the Act, and that there would therefore not be a real risk that he would suffer significant harm for this reason as a necessary and foreseeable consequence of his being returned to Malaysia.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Malaysia now or in the reasonably foreseeable future.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Malaysia. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by the Act and therefore he is not a refugee.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.
Overall conclusion:
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 the Act 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.
Damian Creedon
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 1667

3 April 2022

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