1707780 (Refugee)

1707780 (Refugee) [2017] AATA 2388 (1 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707780
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Amanda Paxton
DATE:1 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 November 2017 at 3:31pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Political opinion – Participant of Bersih rally – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan 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 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, who claims to be a citizen of Malaysia, applied for the visa [in] December 2016.
The applicant appeared before the Tribunal on 31 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However 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. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an 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 accept uncritically any and all of the allegations made by an applicant.[2] For the reasons set out below, the Tribunal has formed the view that some parts of the applicant’s evidence should not be accepted.
Country of nationality
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The applicant claims to be a citizen of Malaysia, and provided a copy of his Malaysian passport to the Department, and brought his passport to the Tribunal hearing. The Tribunal is satisfied on the basis of this evidence that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is the country of reference for the purposes of assessing the applicant’s claims under ss. 36(2)(a) and (aa).
Third country protection
On the evidence before it, the Tribunal is also satisfied that, for the purposes of s.36(3) of the Act, the applicant does not have a right to enter and reside in a third country.
The applicant’s personal background
The Tribunal accepts the evidence of the applicant at hearing and consistent with his written application that he was born [in date] in Perak, Malaysia, is of Chinese ethnicity, identifies as Buddhist and speaks Cantonese, Mandarin and Malay. The Tribunal accepts the applicant is married with [children]. The Tribunal accepts that before the applicant came to Australia [in] November 2016 he had lived in Kuala Lumpur for about 20 years. The Tribunal accepts the applicant’s oral evidence that his [children] remain in Kuala Lumpur and his wife is living and working in his hometown in Perak.
Claims from the Protection visa application and hearing of 31 October 2017
The applicant’s claims from his Protection visa application can be summarised as follows:
·     The applicant left Malaysia because he is a member of the Bersih group and the Minister of Home Affairs said that Malaysians who are not happy with the country’s political system should leave.
·     Many people who participated in street demonstrations were imprisoned. He decided to seek refuge and safety in Australia.
·     If he returns to Malaysia he will be caught by police and jailed. [3]
[3] DIBP [File number], ff. 22 -24
At hearing, the applicant indicated that he received assistance in completing the Protection visa form. He stated he believes that everything in the Protection visa application is correct but he is not sure.
The applicant told the Tribunal that before coming to Australia he ran his [own] business in Kuala Lumpur. As the business owner, he did not work in a ‘hands on’ capacity but liaised with customers obtaining contracts for the work and managed the [work]. He stated that he closed the business when he left Malaysia.
The applicant said he came to Australia with a friend and that since arrival in Australia he applied for a Protection visa and obtained work rights. He has lived in the [regional] area and worked on farms until he injured his [body] in a work accident and he now helps his friend as [an occupation].
The applicant stated he came to Australia because it is peaceful. He claimed to have participated in a Bersih demonstration and that after that time he experienced problems from council related to his business. The applicant attributes these problems to his participation in the rally.
The applicant claimed that at some time after the rally two or three people in uniform went to his home in Perak on one occasion asking about his whereabouts. The applicant claims this visit was made in connection with his attendance at the rally.
The applicant does not know if anything will happen to him on return as a result of his participation in the rally, but stated he can’t return to Malaysia at the moment because of political situation.
The applicant has been in Australia about a year and has not yet worked much and he hopes to remain in Australia at least for another year before returning.
Assessment of claims
On the basis of the applicant’s detailed evidence, the Tribunal accepts the applicant ran his own [business] in Kuala Lumpur and in this role managed [work].
The applicant’s oral evidence in regard to participation in a Bersih protest rally in Kuala Lumpur was vague. The applicant could not recall the year of the rally, but suggested it might be 2014 or 2015, and he stated this was a rally of protesters wearing yellow shirts. When prompted, he recalled the name of the Bersih group that organised the rally. He indicated that he participated in the second of three main rallies protesting against the unfairness of the government and their lack of transparency in the use of funds. He stated that he participated in the rally with many of his friends and they yelled slogans and held up placards.
The applicant stated that he attended the protest in Petaling, Kuala Lumpur, and that initially the atmosphere was festive but it became chaotic when trouble makers came into the crowd and he and his friends left the rally at that time. He stated that he did not do anything significant at the rally, just participated and then left peacefully.
While the applicant’s evidence was vague, the Tribunal formed the view that the applicant had attended a Bersih rally in Kuala Lumpur as a participant and the applicant agreed that this was like to have been the Bersih 4.0 rally of August 2015. The Tribunal considered the applicant’s knowledge of the Bersih protest was minimal and in line with his statement that he had no significant role in the movement. The Tribunal accepts the applicant attended the Bersih 4.0 rally in Kuala Lumpur as a participant.
The applicant told the Tribunal that since he experienced difficulties from the council related to work sites that made it difficult for him to run his business after that time. The applicant provided the examples of having difficulty in obtaining permits for rubbish bins and that council inspectors caused trouble by picking faults at work sites. He stated that he believed these business difficulties arose because of his participation in the rally because he had been running his [business] for 20 years and nothing like this had happened in the past.
The applicant stated that on one occasion at some time after the rally two or three people in uniform went to his home in Perak asking for him. In response to the Tribunal’s request for more details, he stated that he does not know who they were or what they wanted because he was not there; that he did not have any basis for believing that the people visited in relation to his participation in the rally but that he “just knew”.
As discussed with the applicant at hearing, the Tribunal has considered the following country information from the Department of Foreign Affairs and Trade (DFAT) relevant to political protest and the Bersih movement in Malaysia: [4]
3.6 Chinese Malaysians freely participate in political life, represented by ministers in the current cabinet and participation in opposition parties. The largest Chinese party was traditionally the Malaysian Chinese Association (MCA), a component of the Barisan Nasional (BN) coalition. The MCA won seven seats at the 2013 election, down from 15 in 2008. An increasing number of Chinese support the Democratic Action Party (DAP), one of three opposition parties of the Pakatan Harapan coalition. The DAP won 38 seats at the 2013 election, a significant increase from 28 seats in 2008. The DAP is often portrayed in pro-government media as ‘anti-Malay’. Chinese Malaysian community members told DFAT that, while they believed this was mostly a political tactic, it did contribute to a sense of ethnic division and isolation from mainstream Malaysian society. They also commented that the 1MDB corruption scandal had galvanised anti-government support amongst Chinese Malaysians and had led to greater political engagement. For example, Chinese Malaysians were prominent in and helped contribute to the higher overall turnout at the 2015 Bersih 4 rallies throughout Malaysia compared to earlier protests in 2007, 2011 and 2012. All four Bersih protests have called for transparent government and strengthened parliamentary democracy in Malaysia.[5]
[4] DFAT Country Information Report, Malaysia, 19 July 2016, p. 10
[5] DFAT Country Information Report, Malaysia, 19 July 2016
In respect of the right to protest and peaceful assembly, DFAT advice, as put to the applicant, indicates that:
The Malaysian constitution states that all citizens have ‘the right to assemble peaceably and without arms’, however, in practice the government closely administers political assemblies and rallies under the Peaceful Assembly Act (PAA) and the Criminal Code. Permits can be difficult to obtain and can be restrictive in their application. The PAA requires organisers to submit notice of a rally to authorities ten days in advance.
The Constitution allows restrictions on freedom of speech ‘in the interest of the security of the Federation… [or] public order.’ The time, place and manner of public gatherings require police approval under the Peaceful Assembly Act 2012.
Protests and demonstrations occur from time to time, including the peaceful ‘Bersih 4’ (Coalition for Clean and Fair Election) rallies in August 2015.[6]
[6] DFAT Country Information Report, Malaysia, 19 July 2016, p.8
As discussed with the applicant, DFAT reports the following relevant to the Bersih group.
3.61 Individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds. Bersih, a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4). The rallies attracted thousands of protesters and were supported by opposition parties.
3.62 The Bersih 4 rallies on 29 to 30 August 2015 saw approximately 100,000 people, mostly opposition parties and their supporters, civil society activists and Chinese Malaysians, take to the streets in Kuala Lumpur to call for the resignation of Prime Minister Najib in light of 1MDB corruption claims. The protest was peaceful and no violence was reported, despite the government declaring the protest illegal and banning the yellow t-shirts with ‘Bersih’ print that were worn by the protestors. Smaller rallies were also held in Melacca, Penang, Kuching, Kota Kinabalu with a small number of arrests.[7]
[7] DFAT Country Information Report, Malaysia, 19 July 2016, p. 16
As put to the applicant, DFAT advice indicates that a small number of high-profile opposition leaders or organisers have faced official harassment through the application of Malaysian law, particularly the Peaceful Assembly Act (PAA), Sedition Act, Criminal Code and occasionally, sodomy or corruption charges.[8] As put to the applicant, DFAT assess the risk of arrest or discrimination of those engaged in political rallies as follows.
DFAT assesses that protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest. High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code.[9]
[8] DFAT Country Information Report, Malaysia, 19 July 2016
[9] DFAT Country Information Report, Malaysia, 19 July 2016, p.16
In response to the country information above, the applicant stated that he agreed that the government was only interested in high profile organisers of the Bersih rallies. He could not explain how or why he could have been identified as someone of adverse interest to the authorities and stated that thought he was picked at random like a lucky draw, but that now “they have identified him he will experience trouble.”
The Tribunal has accepted that the applicant participated in the Bersih 4.0 rally held in Kuala Lumpur. Based on the applicant’s evidence, the Tribunal finds that he is not an organiser or leader within the Bersih movement and does not otherwise have a high profile within the Bersih movement. Based on the applicant’s evidence the Tribunal finds that he protested peacefully.
In consideration of the claim that the applicant was singled out for discriminatory treatment by the council because of his political opinion, the Tribunal notes the applicant could put forward nothing to support his connection of his participation in the Bersih rally with these practices other than he had not experienced this kind of difficulty before. Taking into account the country information above and the accepted circumstances of the applicant, the Tribunal formed the view that it was purely speculative to link any difficulties the applicant experienced in relation to his business with his political opinion. On this basis, the Tribunal does not accept the applicant experienced difficulties in the operation of his business operation due to his political opinion. Further, having regard to the non-exhaustive examples of serious harm in s.5J(5) of the Act, and the definition of significant harm in s. 36(2A) of the Act, the Tribunal finds that the difficulties he experienced do not constitute either serious harm or significant harm to the applicant. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm for this reason.
The Tribunal considered the applicant’s claim that the authorities have an adverse interest in him because of his political opinion because uniformed people went to his home in Perak. The Tribunal notes that the applicant states that he does not know who these people were or what they want and they have not visited the home again. The applicant’s evidence in regard to this visit was very vague and lacking in detail. He stated that this was because he was not there. However, given the significance of this alleged event to his claim to fear harm on return to Malaysia, the Tribunal would expect him to have obtained some more details from his family in Perak if it had occurred as claimed. Taking into account the country information before it and put to the applicant that indicates that protesters have a low risk of attracting adverse interest of the authorities, and the very vague nature of the applicant’s evidence in respect to this claim, the Tribunal does not accept as credible that the police or any authorities went to the applicant’s home in Perak due to the applicant’s participation in the Bersih 4 rally or for any other reason. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm for this reason.

The Tribunal further considers that if police or the authorities had any adverse interest in the applicant or wanted to arrest or imprison him that they had the opportunity over the twelve month period after the rally and before he came to Australia to do so, noting that he remained in his usual place of abode and conducted his business and would have been easy to locate for these reasons. The Tribunal does not accept the applicant has been identified as someone of adverse interest to the authorities for any reason. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm on this basis.
The Tribunal has considered the applicant’s comment that he thought he was targeted for adverse interest by the authorities because of his participation in the Bersih 4 rally because he was picked at random like a lucky draw. Taking into account the country information above, put to the applicant, that it was high profile organisers of the protest who faced the adverse interest of the authorities, the Tribunal considers it far-fetched that the applicant was targeted in this manner. The Tribunal does not accept the applicant was identified by random and targeted by the authorities because of his political involvement.
After considering all the available evidence, the Tribunal does not accept that Malaysian police wish to detain, arrest or charge the applicant or that he faces a real chance of being imprisoned or targeted for any adverse treatment by any authority because of his involvement with the Bersih movement, or for any other reason, should he return to Malaysia, now or in the foreseeable future. On all the evidence before it, the Tribunal does not accept the applicant has a well-founded fear of persecution for one or more of the five reasons set out in s.5J(1) of the Act now or in the foreseeable future on return to Malaysia.
For the same reasons as above, the Tribunal does not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Malaysia there is a real risk that the applicant will suffer significant harm.
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 s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton

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 2388

1 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction