1707595 (Refugee)

1707595 (Refugee) [2017] AATA 2373 (31 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707595
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Luke Hardy
DATE:31 July 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 31 July 2017 at 1:00pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Ethnicity – Chinese Malay – Social group – Victim of harassment – Forced departure – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 499
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] an ethnic Chinese citizen of Malaysia. He arrived in Australia [in] June 2016 on a[temporary] visa which he overstayed. He lodged a protection visa application [in] February 2017. The delegate refused to grant the visa [in] March 2017 and [the applicant] subsequently sought review by this Tribunal.
[The applicant] appeared before the Tribunal on 24 July 2017 to give evidence and present arguments. The hearing was facilitated by an interpreter in the Cantonese-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 issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if 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 Immigration Department
In his protection visa application form, [the applicant] claimed to have been born and raised in [Town 1] a town on the eastern side of [Town 2], which is the port facing Penang. [Town 1] is in the state of Kedah and is a commute by road and bridge to Penang. [The applicant] claimed he worked for the same company called [Company 1] starting in 1983 and leaving at the level of [a position] in May 2016 when he came to Australia. It appears to have initially been stated in [the applicant’s] protection visa application form that this company was in [Town 1], but that word is crossed out and replaced by Penang. The evidence about this company being located on Penang and not in [Town 1] is supported by information located on the company’s website.[1]
[1][information deleted]
The [2015] passport [the applicant] submitted to the Department shows a pattern of frequent travel to [Country 1], involving around four trips arriving in [Country 1] on the [date] of the month and departing on the [date] including one trip in January 2016 and another in April 2016, with a few variations as to days (sometimes twelve days instead of eleven) and, in one instance arrival in[Country 1] on the [date] (of December 2015) and departure on [another date]. [The applicant] undertook all of this travel to [Country 1] on a visa issued by [Country 1] authorities [in] September 2015. He also undertook a three-day visit to [another country] in December 2015. In his protection visa application form, he referred to all these trips simply as “TRAVEL”.
[The applicant] claimed never to have been married or in a de facto relationship. He claimed to have a father only, resident in[Town 1], Kedah. He claimed at least nominally to be Christian but made no specific claims in relation to “religion”.
[The applicant] claimed that he had heard from other people about a gang of ethnic Malays that used the pretext of a long-past historical event to intimidate ethnic Chinese, under threat of physical harm and even murder, into leaving Malaysia forever. He said the event was the 13 May 1969 race riots in Kuala Lumpur. On that day, many hundreds of ethnic Chinese were killed and thousands of businesses were damaged or destroyed, purportedly fuelled by Malay anger in the disparities in wealth between the two ethnic groups.
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.[2]
[2] 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.”[3] 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.”[4]
[3] ‘World Directory of Minorities: Malaysia – Chinese’, Minority Rights Group International website, 2009,
[4] Soong, K.K., ‘Racial conflict in Malaysia: against the official history’, Race & Class, vol. 49: no. 3, 2008, p.34
[The applicant] claimed in his protection visa application that the same thing that he had heard about happened to him when [a number of] Malays armed with guns and knives came to his house and told him that his family had been involved in the 13 May 1969 incident and that he must leave the country. He said the gang did not understand that the 13 May 1969 incident had in fact been a massacre perpetrated by Malays against Chinese rather than the other way around. He said that the gang perceived ethnic Chinese as people who were taking all their jobs and access to wealth.
[The applicant] said he was hit in the back by a gang member and pistol whipped on the head by another.
[The applicant] claimed he tried to report the gang to the police who did not ultimately provide any assistance. He said the police were busy, lacked resources, were sensitive about intervening in racial conflict, and advised him to move away, or relocate, to avoid this apparently local gang. He suggested the “13 May 1969” issue was a sensitive one for the police. He reiterated that the gang that attacked him numbered only [several] persons. He said he tried to relocate to another village but the gang came after him there too, after only [a number of] days. He said the gang beat him again. He did not suggest that it was another gang or that the gang, in his estimation, might be larger than [several] persons. He said the gang’s aim was to “deport” him or force his departure from Malaysia. He said that this was why he came to Australia. He said he will be harmed and perhaps even killed by the gang if he returns to Malaysia.
[The applicant] did not suggest that any similar harm or threats were perpetrated upon his father or any other family members.
[The applicant] was not invited to an interview by the delegate.
Evidence to the Tribunal
[The applicant] confirmed that his original residence in Malaysia was in ([Town 1] in) Kedah with his father. He said his sister still lives with his father and her husband in that house. He acknowledged that Penang was a commute through [Town 2] from his home in Kedah. Indicating that he is married, he said he has another house in Kedah that he bought with his wife; he said she currently stays in that house. He then said she no longer lives in that house because she moved to Kuala Lumpur (KL) to get away from the gang that was harassing him. He did not suggest that she has faced any potentially relevant harm there. he said she is being supported by his and her adult children. I note again that in his protection visa application form, [the applicant] said he had never married or been in a de facto relationship.
[The applicant] said that his wife moved to KL after the gang appeared at the house he had bought with his wife to demand that he leave Malaysia. He said this was in January 2016. When I asked him for details about the treatment he received, [the applicant] alternately told me what he had heard about such gangs doing to people, and said that the gang told him, “Chinese can’t live in Malaysia.”
[The applicant] seemed to contradict the claim about his first encounter with the gang having occurred in his home. He said that when he was promoted at work (he confirmed that this was Public Packaging Holdings) they accused him of taking their job(s). However, he went on to say that none of the five gang members worked in the same factory and that he was not sure who they were.
[The applicant] said they threatened to hurt him and his father. He did not suggest his father ever hid anywhere to avoid the gang, but in any event, he did not suggest the gang had ever approached his father anywhere.
I asked [the applicant] if the gang ever gave him a deadline to leave Malaysia and he said they did not. He said he fled his home and workplace and hid in Penang. Henceforward, his evidence became more confused, not least because he described Penang as a place to which he fled although Penang was evidently the location of his day-to-day workplace.
[The applicant] said he fled [Town 1] for Penang two days after the first visit by the gang. He then said the gang located him [in a few] days after he went into hiding at the home(s) of “friends” in Penang. He said the gang demanded again that he leave Malaysia. He claimed he stopped working after he “fled” to Penang, although this claim is contradicted by information declared in his protection visa application form. He said the second attack by the gang scared him and made him want to flee to Australia.
I asked [the applicant] what happened during the six months between these two attacks by the gang and his departure for Australia. In reply, he said he did not have the resources to travel and spent the time getting help from his friends. I then questioned him about his travel to [Country 1]. He then simply said he went there in December 2015 and January 2016. I put to him that he had provided evidence to the Department of having travelled to [Country 1] for [a number of] days in March 2016; in fact he also went there for another [number of] days in April 2016, just as he had evidently been doing in October, November and December 2015. Apart from May 2015, when he purportedly stopped working for [Company 1], not a month had passed since the issuing of his passport [in] 2015 in which he had not gone on one or two [short term] trips to [Country 1].
Addressing my question about why he went to [Country 1] during a period when he could not afford to travel and was trying to obtain help from friends, [the applicant] claimed that a friend took him to [Country 1], all expenses paid, so that he could work there as an unskilled worker (evidently for [a number of] days or less) and save some money. He said he worked as [an occupation] [engaging in work] from [one city to another]. Hearing this it struck me as being hard to conceive that all of the arranging and booking of flights would have made the work worthwhile: better perhaps for the friend to help [the applicant] by giving him the equivalent of the airfare. Expressing concern about the plausibility of this part of [the applicant’s] account, I asked him who would conceivably have hired a foreigner to [work] for a [Country 1 service provider] in circumstances where, logically, it would be much cheaper to hire a local. In response, [the applicant] simply said they asked him to help them. I asked [the applicant] if he tried to apply for asylum in [Country 1], which a signatory to the UN; he said he did not, because he did not know about such a possibility. I put to [the applicant] that he returned soon to Malaysia and, evidently to Penang, where the gang knew he was staying; he said he had no choice.
I asked [the applicant] how the same gang was able to trace him to a hiding place in Penang after [several] days and, in reply, he appeared to alter evidence he had provided earlier to the Department: he now said the gang was bigger and that the group that found him in Penang was not the same [persons] who accosted him in [Town 1], in Kedah. I asked him how he came to ascertain in Penang that he was being accosted by members of the same group and, in reply, he simply said that he had heard that extremist groups tended to operate in groups of [a set number]. Considering the evidence in this matter overall, I have observed a tendency on [the applicant’s] part, in the provision of factual details, to attribute what he knows not from experience but from things he has heard; it was very hard to ascertain details of actual experiences. By way of another example, when I asked him why he hid in Penang, he said there are many Chinese in Penang, and when I put to him that I had not encountered any independent reporting of Muslim gangs trying to force other Chinese in Penang to leave Malaysia, he said, “I only heard about these things happening.” He went on to say that whereas these things happen, other people to whom they happen might not be seeking asylum in Australia, but this did not satisfactorily address the question about the apparent lack of evidence suggesting that extremist gangs in Penang are pressing Chinese to emigrate.
By [the applicant’s] evidence, the gang apparently easily found him in hiding in Penang within [days] of his purportedly fleeing there in January 2016, and yet they did not evidently approach him again. I asked him what happened between January 2016 and his March 2016 trip to [Country 1] and he said, “I don’t know. I was hiding.” He said he moved around from place to place in Penang. I asked him to describe the kind of help he received in Penang while he was hiding and he said, “food, shelter and work in [Country 1].” He then altered his evidence, after I asked him if he only worked in [Country 1] at the time, and said he was given casual work doing packaging and making deliveries. He said he did not go out of the shop where he was doing the work. I then put to him that he had just claimed that he also performed deliveries as part of the packaging job and he said he rarely made deliveries; ultimately though, he did claim, inconsistently, to be hiding and working only inside a shop, whist making some external deliveries, in circumstances where he said his friends were doing their best to shelter him from being seen anywhere by the gang.
I asked [the applicant] when he first went to work in Penang, as he had told me earlier in the hearing that he went there to work and sometimes travelled between Penang and Kedah. Is reply, he said he first went to Penang to work in 2015. This information contradicted what he said in his protection visa application form, and I put to him that he originally claimed to the department that he had a long career in Penang with the one company, identified by him s[Company 1], and with a regular and frequent pattern of travel to [Country 1]. Here, [the applicant’s] evidence became more and more confused. He said that he worked for [Company 1] in Kedah, not Penang, and only up until January 2016 when he fled to Penang (where, incongruously, he had just told me he had been working in 2015). He also said to me that all the other [trips] to[Country 1] in 2015-16 had been to another location. When I put to him that he had previously claimed to the Department that the location of his work for [Company 1] was in Penang, not Kedah, he said, “Yes. My work was in Penang.
I asked [the applicant] if the gang articulated to him any excuse for trying to “deport” him and he said, “I don’t know.” I put to him that he had previously claimed the gang “blamed” him as it were for an incident that had occurred nearly fifty years ago. In reply, he said, oddly, that he had only heard from his family that there had been an anti-Chinese riot back then, which I took to mean that, contrary to earlier claims, he did not hear the gang talk about this, let alone provide this as an excuse for accosting him. In fact, as noted, at the hearing, he said that the gang first approached him citing his work promotion as the issue that caused them to want him to leave Malaysia.

I put to [the applicant] that according to his protection visa application form, he continued working in Penang as usual before and after the alleged events of January 2016, right up until he came to Australia. I put to him that this evidence of continuity of employment did not sit with his claim, also in his protection visa application form, about hiding in a village. This was potentially an opportunity for [the applicant] to explain that his references in the protection visa application form to relocating to “another village” or to “a village area” were references to village areas in Penang. However, he simply said he lived in Kedah and worked in Penang.
At the hearing, [the applicant] said the police told him they could not assist him due to a lack of resources. I put to him that this was not a reason he cited in his protection visa application form, where he said the police did not want to be involved in the sensitive issue of “13 May 1969”. In reply, he said that he believed the police did not help him due to discrimination and only cited a lack of resources as an excuse.
I asked [the applicant] who had helped him complete his protection visa application form, and he said a friend helped him. As I proceeded to seek more detail, however, his account changed substantially: he said the person who helped him was the son of a friend, but asked the name of the more direct friend he said he did not know. He simply provided a term of endearment. Asked the name of the son, he falteringly tried to say something like “[name]”.
[The applicant] said he could not join his family in Kuala Lumpur because the gang would follow him there and continue persecuting him, notwithstanding, I observe, that by his own evidence he managed not to be attacked after purportedly moving to Penang in January 2016 and engaging in work there including, as he put it, making deliveries.
I asked [the applicant] how he had supported himself in Australia and he said he received support from some people in Malaysia and Indonesia.
Findings in relation to s.36(2)(a)
I have considered all of the evidence before me separately and cumulatively. I have also considered that persecution may be experienced cumulatively, over time, and not just in one or a few traumatic incidents.
Taking [the applicant’s] evidence at face value, I am not satisfied that the chance of persecution relates to all areas of [his] receiving country” Malaysia. I am satisfied on the evidence he provided in relation to his claims, including his ability to pick up work and enjoy the support of friends across long distances, that he could reasonably, safely practicably relocate to Kuala Lumpur, where his wife and children safely reside, without continuing to face harassment from the local [member] gang that purportedly harassed him in January 2016. This means that if I accept [the applicant’s] claims as being more or less credible, he is not eligible for a protection visa due to a failure to meet s.5J(1)(c).
Overall, however, I find [the applicant’s] evidence inconsistent and implausible to the point where I consider it to be entirely unreliable. On the evidence before me, I confidently find that [the applicant’s] whole account of the gang and his stated reason for being in Penang throughout the first half of 2016, along with the explanation he gave for his travel in 2016 to [Country 1], is concocted and was at least to some extent improvised during the Tribunal hearing. I do not accept that any of his substantive claims in this case are truthful. I give much more weight to his uninterrupted work and travel pattern throughout late 2015 and the first half of 2016 up to when he came to Australia. I find that the account as to how he found himself in [Country 1] in March 2016 to be so far-fetched as to be fanciful.
Whereas I accept that there has been some effective discrimination against minorities including Chinese in the wake of “affirmative actions” to promote the welfare of the larger Malay population, partly to appease the masses who rioted in 1969, and their supporters, I do not accept on the evidence before me that [the applicant] faces a real chance of such harm as would rise to the level of serious harm or persecution in Malaysia in the reasonably foreseeable future, for reasons of “race” or any other s.5J(1)(a) reason. His claimed fear of persecution in Malaysia is not well founded. He is not a refugee.
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)
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.
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" in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
In this case, [the applicant’s] claims to complementary protection are essentially the same claims he has made for protection as a refugee. Given my findings of fact in relation to [the applicant’s] refugee claims, 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. In particular, were I to accept [the applicant’s] claims to the extent possible at face value he would still fail, on the evidence before me, to meet s.36(2B)(a) which relates to the reasonableness of relocation.
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 [the applicant] 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 2373

31 July 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction