1708158 (Refugee)

1708158 (Refugee) [2017] AATA 2961 (10 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708158
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Christine Cody
DATE:10 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 November 2017 at 6:00pm

CATCHWORDS
Refugee – Protection Visa – Malaysia – Family violence – Member of the same family unit – Wife joint applicant – Credibility issues – Changing evidence – No fear of serious and significant harm
LEGISLATION
Migration Act 1958, ss 5AAA, 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K-LA 36, 36(2)(a), 36(2A)-(2B), 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
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 relevant law is set out in Annexure A.
The applicant who claims to be a citizen of Malaysia, applied for the visa [in] January 2017. The delegate refused to grant the visa on the basis that there was a lack of supporting documents and information. The delegate was not satisfied that the applicant is a refugee or entitled to complementary protection.
The Department
The Departmental file contains documents including the applicant’s protection visa application forms, a copy of his passport, a printout of the visitor visa, and the delegate’s decision record. There are no certificates restricting disclosure of any material on the Department’s file.
According to the applicant’s written documents, his background and claims can be summarised as follows:
·     The applicant was born on [date] in Sabah, and is now [age]. He can speak, read and write in Malay. His ethnic group is Jawa, and his religion is Islam. He does not have a current occupation.
·     He was educated until [date] in Sabah; he was employed from 2000 until 2016 as a “general worker”, in “self-employment”. He provided a single address (with no dates) in Sabah.
·     His relationship started in 1991, they were married [in] February 2007 in Kuala Lumpur.
·     His passport was issued [in] 2016. His visitor visa for Australia was issued on [date] February 2016.
·     He left Malaysia [in] March 2016, arriving in Australia on the same day. He has resided at a single address in Australia.
·     The reason why he left Malaysia was to save himself from harm arising as a result of his relationship with his wife. He cannot relocate, and he cannot seek protection from the state authorities.
·     His parents reside in Malaysia.
The protection visa application forms were lodged by both the applicant, and his [wife] (hereafter referred to as “the wife”), with their claims made upon the basis of their relationship, and were given a single Departmental file number. They lodged separate applications for review to the Tribunal (the wife’s Tribunal file number is 1708162).
The Tribunal
The applicant provided to the Tribunal an application for review form together with a copy of the delegate’s decision record. He did not provide any other relevant document, evidence or submission.
The applicant appeared before the Tribunal on 7 November 2017 to give evidence and present arguments. The applicant and his wife consented to a joint hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The Tribunal took evidence from the applicant and his wife separately. The Tribunal explained that if at any stage either of them wished any discussions to take place in in the absence of the other, they should tell the Tribunal this. Later in the hearing the Tribunal also explained that it would put to both of them its concerns, as well as information pursuant to section s424AA of the Act. The Tribunal explained that it was considering whether the applicant met the requirements as a refugee or under complementary protection, noting that it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it, up until the time it issued a written decision. The Tribunal noted that the evidence included concerns in relation to inconsistencies between the evidence of the applicant and his wife.
Some of the evidence given by the applicant at hearing included the following:
He commenced living in the house which he purchased with his sibling in 1999. He lived there until he came to Australia. He lived in Sabah; he worked [there] for 4-5 years from 1995 and he also started [Occupation 1] work again after they were married. He also worked as [an Occupation 2]; he had no other jobs. His relationship with his wife started one year before their marriage in 2007. He has never been married before; his wife has a past relationship and she has two children. Her ex-husband is not happy that he married her. He had harassed and threatened the applicant, who did not go to the police. His family and his wife’s brother (who has become physical towards him) are also trying to separate himself and his wife.
He told the Tribunal that he fears physical harm as a result of their marriage but that nothing else causes him concern about returning.
Further relevant evidence and information is set out below.
FINDINGS AND REASONS
Country of reference
The applicant produced his passport issued by the Malaysian authorities. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Malaysia, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Malaysia.
Member of family unit
As set out below, the Tribunal had significant concerns with the applicant’s evidence as well as the evidence of his wife. However, having observed the applicant and his wife at hearing, it is prepared to accept that they are in a marital relationship, and to consider each as a member of the family unit of the other.
Credibility
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 the 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.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
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 him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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 Tribunal had a number of concerns about the inconsistencies in significant details of the applicant’s claims, as well as his changing evidence, and inconsistencies between the evidence of the applicant and his wife. The Tribunal’s concerns are set out below.
Firstly, the Tribunal was concerned because the applicant provided inconsistent evidence about who would harm him as a result of his relationship with his wife. In this regard, in his protection visa application form, he feared harm from his wife’s parents, noting they would kill him if he returns home. However, at the hearing, he told the Tribunal that he faced harm because of their relationship from his wife’s ex-husband, his wife’s brother, and his siblings. When the Tribunal put to the applicant that the source of the harm had changed, and that his protection visa application form referred to harm from his wife’s parents, he then changed his evidence to say that he also faced harm from his wife’s parents. He did not offer an explanation as to why the source of his fear of harm was changing, and when asked by the Tribunal, he said no comment. The Tribunal also noted that the evidence of the wife at hearing was also inconsistent (as put pursuant to section 424AA of the Act) as she had not mentioned at hearing a fear of harm from her parents, brother or the applicant’s siblings. In response, the applicant said he didn’t mention his father-in-law trying to separate them because he respects him as a father-in-law. The wife said in response that is correct the siblings are against the marriage, and it is also correct that they were scared of her ex-husband. The Tribunal is not persuaded by the explanations and considers that the inconsistencies undermine the wife’s credibility in corroborating the applicant’s claims, and that the applicant’s inconsistent and changing evidence undermines his credibility and his claims.
Secondly, the Tribunal put to the applicant further inconsistencies between his application form and his evidence, including:
·     He told the Tribunal that he had started his relationship with his wife about one year prior to their marriage in 2007, however his application form recorded that the relationship had started in 1991. The Tribunal asked him about this inconsistency (noting he did not claim to have had any previous marriage or relationship when asked) and he said that maybe his friend had written it wrong. The Tribunal does not find that explanation to be persuasive, as earlier, it had discussed with the applicant that he had submitted his protection visa application forms to the Department and that they were in English. He confirmed that they were true and correct, and that they were read back to him.
·     The Tribunal noted that in his application form he had claimed to live in hiding, but he told the Tribunal that he had lived at his home until the time he came to Australia. It asked for any comment and he was silent. The Tribunal again asked him if he wanted to comment, and he said that he did live at the house, but to have peace of mind sometimes he stayed away from that place. The Tribunal does not find his explanation to be persuasive.
·     The Tribunal noted that in his application form he had claimed that his wife’s parents had beaten him badly and separated them, and that they are rich and have strong connections to corrupt authorities and they will hire people to kill him, but he did not say this in his evidence to the Tribunal. In response he said it is true that he did not mention her parents, this was out of respect to his parents-in-law, it is a cultural thing, and that is why he had only mentioned the wife’s brother. Given it is the applicant’s claim that he faced harm and faces harm from his parents-in-law, and that he lodged an application for a protection visa, the Tribunal is not prepared to accept the applicant’s explanation.
The Tribunal considers that the above undermines the applicant’s credibility.
Thirdly, the Tribunal was concerned that the applicant was prepared to give changing evidence to the Tribunal, which undermined his credibility. The applicant told the Tribunal that his only work was as [an Occupation 1] and [Occupation 2]; these were the only jobs he had after he and his wife were together. Noting that this was inconsistent with the wife’s evidence at hearing that her husband was [an Occupation 3] (and had received threats from the wife’s former [husband]), the Tribunal put this inconsistent evidence to the applicant and his wife pursuant to section 424AA of the Act. In response, the applicant then said that he was [an Occupation 3], and he didn’t tell the Tribunal this because he had been threatened when he was [at work], so this is why he changed his job to be [an Occupation 2]. He then produced a [professional document] from his pocket which he showed to the Tribunal. The Tribunal is prepared to accept that the applicant has a [professional document]; however it does not find his reason for telling and untruth to the Tribunal to be persuasive. The Tribunal considers that this undermines his credibility.
Fourthly, the Tribunal was concerned that there were numerous inconsistencies between the applicant and his wife in their evidence concerning their circumstances, which was put to both of them jointly pursuant to s.424AA of the Act. The concerns and the comment/responses are referred to below:
·     The applicant said that his wife was a divorcee in 2007 when he married her, whereas she said she only got divorced in 2010, and she married the applicant in 2010. In response the wife said that they got married [in] October 2010; her divorce had arrived in June 2010 and they had to wait three months before they could get married. The applicant however said no comment. The Tribunal is not satisfied with the explanations provided for the inconsistencies.
·     The wife said she (alone) bought the house[1] in 2009, and that she lived there; the applicant had moved in to her house after they were married in 2010 and they thereafter lived together in her house. The applicant, however, said that he bought the (same) house with his sibling in 1999, and that after he married his wife in 2007, she moved in to the house that he owned with his sibling. In response, the wife said the house was bought under both names, they bought the house before they got married. The applicant said in response that his wife’s name was not on the house but after they got married her name is on the house. The wife then said no comment. The Tribunal considers that the explanations are not persuasive and indicate changing evidence.
·     The applicant said that the last incident with the wife’s ex-husband occurred on [Date 1] December 2015, it was in [a public space], and he threatened to hit the applicant, and said he did not want to see him again. The wife however said that the last incident occurred on [Date 2] December 2015 when her ex-husband came to the house, he had a knife and was drunk and yelling, but luckily he couldn’t get into the house. In response, the applicant said that there was an incident where the ex-husband was using a knife, but he didn’t tell the Tribunal this because he didn’t report it to the police. The Tribunal does not find this to be a persuasive reason as to why the applicant did not tell the Tribunal about such an incident. The wife commented by saying that the event on [Date 2] December 2015 did occur and she was there, that she was not present when the marketplace incident occurred so she did not know the exact date. The Tribunal is not prepared to accept the explanations for the inconsistency, and considers that if they were forced to leave their country because of a fear of harm as a result of their relationship, they would have been able to tell the Tribunal with some consistency about the last incident that occurred with the ex-husband (no matter who was present), prior to them leaving the country in fear.
·     The applicant said that the physical altercation occurred between him and his wife’s ex-husband in August/September 2015, when the ex-husband grabbed the husband’s collar, and shook his fist at the husband. The wife however said that the physical altercation occurred in 2014 in a [certain location]. In response, the applicant said that what his wife said is the truth, but he did not want to badmouth her ex-husband, because he cannot recall the exact date of the incident. The wife then said that she had no comment. The Tribunal does not consider the applicant’s explanation to be persuasive, and notes that the wife provided no explanation.
·     The wife said that she had complained about her ex-husband to the police and this is how she managed to get a divorce from him. The applicant however claimed that he did not know whether the wife had had any contact with the police about her first husband. The Tribunal put to both that if they were experiencing threats and fears of harm and of being killed by him, it would consider that they would have discussed whether or not the police could assist them, and the applicant would have been aware that the police had already been involved in assisting his wife against her ex-husband. Neither the wife nor the applicant sought to comment.
·     The wife said that her two children have been living alone in the house since they left, except that the older one has now gone to live in a hostel while studying at university. The applicant however said that the children live with his [siblings] in the house; he did not suggest that one had moved out to study at university. The Tribunal put its concern that it would expect that they would have given consistent evidence about these matters. In response, the wife said that sometimes the children stay with the applicant’s siblings at a (different) house in a village. The applicant said no comment. The Tribunal is not prepared to accept the wife’s explanation in light of the initial evidence given (and put as information). The applicant said no comment.
[1] The only address provided in his protection visa application form
The Tribunal considers that the lack of explanations, as well as the inconsistencies, undermines the wife’s credibility in corroborating the applicant’s claims. Further, these matters also undermine the claims and credibility of the applicant.
Finally, the Tribunal is concerned that although the applicant claimed to be escaping from harm in Malaysia by coming to Australia, he delayed in lodging his protection visa application form. In this regard, the Tribunal noted that he had arrived in Australia [in] March 2016, he became unlawfully present after three months ([in] June 2016)[2], yet, he only attempted to lodge in September 2016[3] (finally succeeding in January 2017). The Tribunal put to the applicant that it had taken him six months after he arrived to lodge his protection visa application. In response the applicant (and his wife) said that they had tried to get help from someone who they paid money to and cheated them and did not lodge their application. Although the Tribunal accepts this can occur, having regard to all of the concerns above, it is not prepared to accept this explanation. The Tribunal considers that the delay in attempting to claim protection (until September 2016) undermines the applicant’s claims that he came to Australia in fear of serious and significant harm.
[2] As set out the delegate’s decision record provided to the Tribunal by the applicant, and in the printout of the visa provided to the Department.
[3] As set out the delegate’s decision record provided to the Tribunal by the applicant. Although the Tribunal does not have copies of that first application, as noted at hearing it is prepared to accept that the applicants attempted to lodge a protection visa application in September 2016.

For the reasons set out above, the Tribunal does not consider the applicant to be a credible witness.
Other matters
While the Tribunal acknowledges that the applicant could have been nervous at the hearing, the Tribunal does not accept that this can explain the difficulties with his evidence.
Further, while the Tribunal acknowledges that the wife has given some consistent evidence (for example that they are married, that the wife had an ex-husband and children, that he was [an Occupation 3] at some stage, that there has been past harm and they face future harm), having regard to the significant concerns with the evidence of the wife, the Tribunal is not prepared to place any weight on the evidence of the wife in corroborating the claims of the applicant.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims.
Findings on the applicant’s claims
The Tribunal is not prepared to accept that the applicant or his family suffered as described in his written materials or his oral evidence. On the basis of the adverse credibility finding, the Tribunal is not satisfied that the claims made by the applicant in relation to himself or his family are true. It does not accept that his wife has an abusive ex-husband, or children (the Tribunal notes that when it put these concerns at hearing, the applicant said no comment). The Tribunal does not accept that the applicant or his wife has experienced any threats or harm (from anyone, including his wife’s relatives or ex-husband, or anyone else) in Malaysia. It does not accept that he or his family members have been or will be targeted nor does it accept that he was in hiding, nor that anyone tried to separate himself and his wife in Malaysia. It does not accept any of the claims flowing from these claims, including that that he has tried, or would have tried to obtain state protection, but that the perpetrators’ connections to authorities meant or would mean that he could not obtain state protection.
The Tribunal does not accept any claims that flow from these claims, nor does it accept that the applicant feared or fears returning to Malaysia, nor that anyone seeks to harm him or anyone connected to him. As it does not accept the claim that anyone was targeting him (or his wife) for reason of his relationship with his wife, or for any reason at all., it does not accept that there is a real chance or a real risk that he (or any of his family members including his wife) would be so targeted in future.
The Tribunal finds that the applicant was prepared to make false and changing claims to support a protection visa application. The Tribunal does not accept that anyone has had any adverse interest in the applicant while he was in Malaysia or since he has been in Australia.
The Tribunal noted at hearing that if it did not accept his claims, it would appear there was nothing in the country conditions, as set out in the DFAT Report to which the Tribunal is required to have regard, which would indicate that he would face a real chance of serious harm or real risk of significant harm in Malaysia. The applicant did not seek to comment about this.
The Tribunal is not satisfied on the evidence before it that this applicant faces a real chance or real risk of requiring access to state protection.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, and, having regard to the findings that the applicant is not a credible witness concerning past or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution for any of the reasons put forward by him. The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicant faces a real chance of serious harm.
The Tribunal does not accept that there is any credible evidence to support that the applicant faces a real chance of persecution in Malaysia. 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).
Complementary protection
Having concluded that the applicant does not meet the criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal has accepted that the applicant is [an age] year-old male who had been residing with his wife in Malaysia who has work experience, and who was resourceful enough to come to Australia, and survive here. For the reasons discussed above, the Tribunal is not satisfied that the applicant has been truthful in relation to the majority of his claims. The Tribunal does not accept that the applicant or his family have experienced any of the past harm claimed, and it notes that he has not claimed to have otherwise experienced any discrimination or harm for any other reason. The Tribunal considers that he is a resourceful person who has relatives in Malaysia. The Tribunal considers that he will return with his wife to Malaysia, he will work again in his home country and that he does not face harm for any reason. The Tribunal is not satisfied that he will face a real risk of adverse attention amounting to significant harm, from anyone, for any reason.
On the evidence before it, and for the reasons discussed above, and having considered the claims singularly and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Malaysia, there is a real risk he will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
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.
Christine Cody
Member

ANNEXURE A - 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 below.
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 below.
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 (namely the DFAT Country Information Report Malaysia, 19 July 2016 (“the DFAT report”)), to the extent that they are relevant to the decision under consideration.
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 2961

10 November 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction

Judicial Review