1708439 (Refugee)

1708439 (Refugee) [2020] AATA 3771 (4 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708439
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Amanda Mendes Da Costa
DATE:4 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 4 August 2020 at 9.56am
CATCHWORDS
REFUGEE – Protection visa – Malaysia – hacking into a government database– involved in a group called Bersih – unable to describe the information he accessed– economic purpose – credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 and Border Protection on 22 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 on 7 November 2016. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant’s circumstances gave rise to a real risk that he would be subjected to any form of significant harm if he returned to Malaysia or that he was a person in respect of whom Australia had protection obligations.
The applicant appeared before the Tribunal on 17 January 2020 and 16 July 2020 to give evidence and present arguments. The hearings were conducted with the assistance of an interpreter in the Malay and English languages.
The Tribunal exercised its discretion to hold the second hearing by telephone. This hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the fact that the applicant had attended the first hearing and had been given an opportunity to give evidence ‘in person’.
The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the second hearing was not to be conducted by telephone.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues to be considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia, and that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessments.
There is no evidence to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Applicant’s protection claims
The applicant made the following protection claims in his visa application:
·     He left Malaysia because he was involved in a group called Bersih.
·     The purpose of this group was to reclaim the general election and ensure that it was clean and fair.
·     In September 2016 Bersih organised a meeting about the upcoming 2017 election.
·     During the demonstration they were attacked by acid gas and water guns. They were also raided by the authorities and many members were arrested and others were beaten by the authorities.
·     He managed to escape the police.
·     If he returns to Malaysia, he will be imprisoned and the authorities will be able to find him.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, 1992 at para 196). However, the handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220.
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
Applicant’s evidence
The applicant was born in southern Malaysia and is currently [age] years of age. He was raised and educated in southern Malaysia and his parents and [siblings] remain living there. After completing his secondary education, the applicant completed a [qualification] in Kuala Lumpur and obtained a position as [an] [Occupation 1] in that city. He left that job to gain better paid employment in [another field]. The applicant has never been married and has no children.
The applicant told the Tribunal that he feared returning to Malaysia because the authorities in that country were chasing him for hacking into a government database.
Until 2015 the applicant had no interest or involvement in political activities in Malaysia.
In 2015 the applicant attended a rally organised by the Coalition for Clean and Fair Elections (Bersih). At this stage the applicant was not seriously involved in the Bersih movement. He was not an organiser of or speaker at the rally. He listened to the speeches and watched what was happening with the other protesters. Although other protesters were detained by the police the applicant was not detained or arrested. The police did ask the applicant his name and took down his IC (identification) number but took no other action against him. The police did not visit the applicant after the 2015 rally and no other action was taken by the authorities against him.
In 2016 the applicant met two men who had been involved in organising the 2015 Bersih rally. They questioned the applicant about his skills and discovered that he had a knowledge of computers which he developed through his [Course 1] studies. These men offered the applicant MYR RM[amount] (equivalent to AUD[amount]) to break into the database of the government – the main building where the Prime Minister’s office is located. The applicant was motivated to ‘hack’ the government’s database for monetary reasons rather than any belief in the goals of Bersih.
The applicant explained that in May 2016 he and a friend from Bersih broke into the government’s database using an IP address for the government system. His friend had computer training and they used ‘certain software’ to break into the database. When questioned by the Tribunal about the identity of the database involved, the applicant said that it was an ‘account database’ operated by the [Government agency 1]. He and his friend were looking for information about [deleted]. After breaking into the government system and taking the data, the applicant gave the information to a Bersih member to analyse. The Tribunal questioned the applicant about the nature of the information he obtained. The applicant explained that it was hard to explain. When the Tribunal asked him whether it included information such as banking records, he said that although the information related in part to banking records, he didn’t really understand the purpose of the data. He said he was motivated by the money he was offered and later paid for his hacking activities.
The Tribunal questioned the applicant about how he had been able to hack into a government database which would take considerable computer skills. He explained that he had gained computer skills during his studies in [Course 1].
The applicant told the Tribunal that he again attempted to break into the same database in the [Government agency 1] in August 2016. When asked by the Tribunal about the activities of the Department, the applicant said he was not sure exactly what it did. He explained that although he and others again tried to access the [Government agency 1] database, they failed because someone had traced what they had done and stopped them. When questioned by the Tribunal about how they were stopped the applicant explained that they used a person like them. The applicant said he and seven to eight other Bersih members were traced by the authorities to a meeting room in the office of a government employee (also a Bersih member) [in] Kuala Lumpur.
Approximately half an hour after the applicant and his friends tried to break into the government database, the building was raided by plain clothes special branch police officers. At the time of the raid the applicant was outside the building smoking. Although the police were not in uniform, the applicant explained that he was able to recognise them as police officers. The applicant waited outside and saw his fellow Bersih members (in handcuffs) being removed from the building by police. The applicant then left the building and hid at the home of a friend who was not a member of Bersih. The applicant subsequently became aware that all of the Bersih members arrested by the police in the raid had been charged with criminal offences. Two of the men were each subsequently imprisoned for 10 years whilst the remainder were found not guilty of any offences by a Court.
The applicant said that the police were aware that he had been involved in attempting to break into the government database. They became aware of his identity through CCTV at the government office and through admissions made by one of the men imprisoned to police. This man, who was beaten by police whilst in custody, identified the applicant to them as a person involved in attempting to break into the government database. The applicant was advised by the wife of the man who identified him to police, that her husband had told the police about his involvement in the attempt to break into the database in August 2016.
The applicant further explained that two to three days after the raid, the police went to the applicant’s home in Kuala Lumpur and his mother’s home in southern Malaysia to look for him. A car was also parked outside his mother’s house with police watching for him. Whilst staying with his friend at this time, the applicant destroyed all documents (including code documents) and photographs associated with Bersih activities. The applicant sought advice from his friends about his future. They suggested that he withdraw his MYR RM[amount] savings from his bank account and depart for the United Kingdom, New Zealand or Australia. At the end of August 2016, the applicant came to Australia. He already had a passport when he made the decision to leave Malaysia and he withdrew his savings from his bank account before leaving Malaysia. The applicant flew to Australia from Kuala Lumpur airport. The applicant told the Tribunal that the authorities made no attempt to prevent him from leaving the country.
Since arriving in Australia, the applicant has not had any interest or involvement in political activities in Malaysia. Nor has he had any communication with his former Bersih colleagues. This was in part due to his previous [social media] page in Malaysia being blocked by the company and his previous mobile phone (including its memory card) being damaged beyond repair. His previous involvements in Bersih had made his mother worried and he realised it was a big mistake. Although he had some awareness of the Bersih rally which took place in Kuala Lumpur in November 2016 he was not interested in the activities of his former Bersih colleagues. He viewed his previous involvement with them as being motivated by the desire for money rather than any real interest in their political aspirations. The applicant told the Tribunal that he loved his life in Australia. Given his employment here he did not have the same financial concerns as he had in Malaysia as wages were better in Australia. He also enjoyed more time to himself than in Malaysia and appreciated the emphasis on workplace safety in his Australian employment.
The Tribunal questioned the applicant about why he had not included in the application form, his activities in hacking into government databases as a reason for fearing return to Malaysia.
In response, the applicant explained that he had been concerned about being refused a visa by Australian Immigration authorities, if he included this information in his visa application form. This was because he was aware that he had engaged in illegal behaviour in Malaysia.
The Tribunal advised the applicant that it had considered country information regarding Malaysia, including the DFAT Country Information Report[1] which indicates that the Malaysian government commenced a process of electoral reform following the 2018 election and many Bersih members currently hold positions in the new government. Further, the report suggests a general improvement in expression of political dissent since the change of government in 2018. This suggested to the Tribunal that his previous attendance at a Bersih demonstration would not result in any action being taken against him by the authorities if he returned to Malaysia.
[1] Report issued 13 December 2019.
In response, the applicant explained that his main concern about returning to Malaysia was not his attendance at a Bersih demonstration but his activities in hacking into Malaysian government databases.
The Tribunal is concerned about the applicant’s explanation for failing to include his claimed hacking activities in his visa application form. The Tribunal considers that if the applicant had been fearful about returning to Malaysia due to hacking and not his participation in a demonstration, he would have made this claim in his application form, even if it resulted in him admitting the commission of illegal acts in Malaysia. The Tribunal considers that the applicant’s claim of hacking into a government database is a recent invention.
Whilst the Tribunal accepts that the applicant attended a Bersih demonstration, it does not accept that the applicant left Malaysia because he attended a demonstration organised by Bersih in 2015 or that he will be imprisoned by the authorities on returning to Malaysia as a result of his attendance at the demonstration. The Tribunal accepts the country information which indicates that since the 2018 election a number of Bersih members have become members of the government, and that there is an improved climate for the expression of political dissent in Malaysia. The Tribunal notes that the applicant did not claim in his oral evidence that he was concerned about returning to Malaysia due to his attendance at a demonstration. It has further considered that the applicant has not attended any other demonstrations in Malaysia or been involved in any political activities in Australia.

The Tribunal discussed with the applicant its concern that he did not appear to have the skills necessary to gain access to government databases which would have had significant data protection systems. The Tribunal noted that the use of a computer for [Course 1] studies would be insufficient to enable him to gain the skills necessary for him to compromise government digital services.
The Tribunal further discussed with the applicant his evidence that he was unable to describe the information which he had accessed via the Malaysian government databases. The Tribunal raised its concern that if he had hacked into the Malaysian government databases on two occasions, he would have been required to understand the nature of the information sought in order to gain such access.
In response, the applicant explained that during his [Course 1], he had taken a particular interest in subjects related to computer skills and this had enabled him to develop the necessary skills for hacking into government databases. Whilst he was undertaking his studies he was introduced to his partner in hacking. He has not engaged in any similar behaviour since leaving Malaysia.
He further explained that the information that he obtained by hacking into the government databases related to finance and fraud, which had not been exposed in the Malaysian parliament. When questioned by the Tribunal about the nature of the fraud, the applicant said that he didn’t have much idea about the information because when he obtained the ‘file’ from the databases, he just passed it on to someone else. He was told by someone that the information he had obtained was about fraud and finance.
The Tribunal does not consider the applicant’s evidence that he had gained the necessary skills and experience to break into a government database based on his course in [Course 1], as either credible or convincing. It also finds his evidence about gaining computer knowledge through his activities with a fellow ‘hacker’ as vague and lacking in detail.
The Tribunal also finds the applicant’s evidence about the information he obtained from his ‘hacking’ activities to be vague and lacking in detail. It does not accept that if he had broken into government databases on two occasions that he would have been unable to recall any detail of the information which he accessed.
The Tribunal does not find as either credible or compelling his claim that he hacked into government databases on two occasions. The Tribunal does not consider that he possessed the necessary computer skills or experience to undertake such a task. The Tribunal does not consider that the applicant’s experience in using a computer to complete his [Course 1] studies would have been sufficient to give the applicant the necessary skills as a hacker. Nor does the Tribunal consider that the applicant would have been unaware of the nature of the information he obtained in accessing the government databases in greater detail than his vague description of it being related to bank records, finance and fraud.
The Tribunal finds the applicant’s description of the methods used by him as an IP address and ‘certain software’ as insubstantial, vague and lacking in detail. If he had broken into a government database as claimed, the Tribunal would expect that he would have been able to demonstrate the methods used by him to enter the databases.
The Tribunal further questioned the applicant about the circumstances in which he left Malaysia in 2016. The Tribunal noted that it was concerned that if he had been wanted by police for hacking into a government database the police or immigration authorities in Malaysia would not have permitted him to leave the country.
The applicant told the Tribunal that he had fled Malaysia six days after he had fled the police. During that period, he had cleaned up any evidence he had relating to his hacking activities. This included a video of him hacking into government databases, which he had deleted from his previous phone.
The applicant said that given he left Malaysia within six days of coming to the attention of the police, the authorities did not have time in which to take action to prevent him from leaving the country.
The Tribunal further considers that if the police in Malaysia were aware of his illegal hacking activities (as asserted by the applicant in his oral evidence) he would not have been permitted by the authorities in Malaysia to leave the country and that given the use of computer records, six days was sufficient for the police to advise immigration authorities about the applicant and prevent him from leaving the country.
It follows from the above findings that the Tribunal does not find as either credible or convincing the applicant’s evidence in relation to the following:
·he was approached by members of Bersih to break into a government database and retrieve sensitive financial information;
·he was paid MYR RM[amount] (or any amount) to break into a government database on any occasion;
·he gave ‘hacked’ information to a member of Bersih;
·he had been pursued by and had escaped police in Malaysia;
·the Malaysian police were looking for him and would arrest and imprison him if he returned there; or
·he has destroyed evidence of his claimed hacking activities.
For the above reasons, considered cumulatively, the Tribunal does not consider the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal cannot be satisfied on the evidence before it that the applicant is a truthful witness to his claims.
In making these findings the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance of the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness to these claims.
As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept that the applicant was ever involved in hacking Malaysian government databases or that he fears returning to Malaysia because of these claimed activities.
The Tribunal is further not satisfied that the applicant will face a real chance of serious harm on the basis of his attendance at a previous Bersih demonstration or previous involvement in Bersih.
For the reasons given above, the Tribunal is not satisfied that there is a real chance of harm as set out in s.5J(1)(b) of the Act.
Complementary protection
The Tribunal has also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
Whilst the Tribunal accepts that the applicant attended a Bersih demonstration, it does not accept that the applicant left Malaysia because he attended a demonstration organised by Bersih in 2015 or that he will be imprisoned by the authorities on returning to Malaysia as a result of his attendance at the demonstration. The Tribunal accepts the country information which indicates that since the 2018 election a number of Bersih members have become members of the government, and that there is an improved climate for the expression of political dissent in Malaysia. The Tribunal notes that the applicant did not claim in his oral evidence that he was concerned about returning to Malaysia due to his attendance at a demonstration. It has further taken into account, that the applicant has not attended any other demonstrations in Malaysia or been involved in any political activities in Australia.
The Tribunal does not consider the applicant’s evidence that he had gained the necessary skills and experience to break into a government database based on his course in [Course 1], as either credible or convincing. It also finds his evidence about gaining computer knowledge through his activities with a fellow ‘hacker’ as vague and lacking in detail.
The Tribunal also finds the applicant’s evidence about the information he obtained from his ‘hacking’ activities to be vague and lacking in detail. It does not accept that if he had broken into government databases on two occasions that he would have been unable to recall any detail of the information which he accessed.
The Tribunal does not find as either credible or compelling his claim that he hacked into government databases on two occasions. The Tribunal does not consider that he possessed the necessary computer skills or experience to undertake such a task. The Tribunal does not consider that the applicant’s experience in using a computer to complete his [Course 1] studies would have been sufficient to give the applicant the necessary skills as a hacker. Nor does the Tribunal consider that the applicant would have been unaware of the nature of the information he obtained in accessing the government databases in greater detail than his vague description of it being related to bank records, finance and fraud.
The Tribunal finds the applicant’s description of the methods used by him as an IP address and ‘certain software’ as insubstantial, vague and lacking in detail. If he had broken into a government database as claimed, the Tribunal would expect that he would have been able to demonstrate the methods used by him to enter the databases.
The Tribunal further considers that if the police in Malaysia were aware of his illegal hacking activities (as asserted by the applicant in his oral evidence) he would not have been permitted by the authorities in Malaysia to leave the country and that given the use of computer records, six days was sufficient for the police to advise immigration authorities about the applicant and prevent him from leaving the country.
It follows from the above findings that the Tribunal does not find as either credible or convincing the applicant’s evidence in relation to the following:
·he was approached by members of Bersih to break into a government database and retrieve sensitive financial information;
·he was paid MYR RM[amount] (or any amount) to break into a government database on any occasion;
·he gave ‘hacked’ information to a member of Bersih;
·he had been pursued by and had escaped police in Malaysia;
·the Malaysian police were looking for him and would arrest and imprison him if he returned there; or
·he has destroyed evidence of his claimed hacking activities.
The Tribunal is further not satisfied that the applicant will face a real risk of significant harm on the basis of his attendance at a Bersih demonstration or previous involvement in Bersih.
Having considered his claims and circumstances, both individually 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 Malaysia there is a real risk he will suffer significant harm; including that he will be arbitrarily deprived of his life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s.36(2)(aa).
At no stage did the applicant advance any other reason, such as race, nationality or religion, in his written claims that he is owed Australia’s protection. The Tribunal therefore finds there are no more residual claims to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.
Conclusions
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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Mendes Da Costa
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.
…
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.
…
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear of 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 of persecution would not exist if it were assumed that the fear of persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 3771

4 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction