1708847 (Refugee)

1708847 (Refugee) [2020] AATA 2626 (16 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708847
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Peter Vlahos
DATE:16 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 June 2020 at 7:55am

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual male – threats and pressures – no details of adverse treatment – state protection – employment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1995) 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 and Border Protection on 4 April 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 12 October 2016. The delegate refused to grant the visa on the basis that the application did not satisfy s.36(2) of the Act.
On 28 April 2017 the applicant made an application to the Tribunal to review the Department’s decision to refuse his application for protection.
On 17 April 2020 the applicant appeared before the Tribunal to give evidence and present arguments.
The applicant did not provide any witnesses to be separately examined by the Tribunal at the hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was not represented before the Tribunal (at the hearing) by a registered migration agent or legal representative.
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-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of [name] (the ‘applicant’). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Based on a copy of the applicant’s passport which was provided to the Department of Home Affairs (the ‘Department’) and the absence of any evidence to the contrary, the Tribunal finds that the applicant’s country of nationality and for the purposes of the Refugees Convention, and that Malaysia is his receiving country for the purposes of complementary protection.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any safe country for the purposes of s.36(3) of the Act (as amended).
The Tribunal has before it the Department’s file relating to the applicant.
The applicant’s claims for Protection
The applicant made the following claims for Protection:
§The applicant is [an age] year old Muslim male from Malaysia. [He] claims he left Malaysia because he is a homosexual since [age] years of age. [He] claims his relationship with his partner was a secret until his family found out. [He] was scolded and warned by his family. [He] claims he has been evicted from home and his friends and neighbours have shunned him. Hence, he came to Australia.
§He claims he was previously abused by his family in Malaysia and his brother warned him to change back to a normal life.
§He fears harm from his family if he returns to Malaysia. He fears his family will advise him that his brother will beat him. He does not have anyone to protect him and his country does not have rules to protect human rights in his case.
§He visited a counsellor three times in Malaysia, but he thinks they could not help him. Everyone wanted him to change back to a normal life.
§He does not think the authorities in Malaysia can and will protect him.
§He did not try to relocate elsewhere because nobody understands his situation and what he wants to be in his life. [He] thinks if he relocates elsewhere within Malaysia, his family will easily locate him.
The Tribunal with the assistance of the interpreter asked the applicant if he had any further and additional claims to make so that the Tribunal can consider them. The applicant told the Tribunal that he had no new or additional claims to make.
The applicant’s migration and visa history
The applicant arrived in Australia from Malaysia, [in] August 2016 as the holder of a UD-601 Electronic Travel Authority visa (ETA). On 12 October 2016 the applicant applied for a XA-866 Protection visa (which the Department refused) but was granted the associated Bridging visa.
EVIDENCE AT THE HEARING
The applicant told the Tribunal that he is [age] years of age and single. He originates from Kuantan, Pahang, Malaysia. He is of the Muslim faith. He has family in Malaysia which consists of his parents and [number] siblings (or varying ages).[1] The applicant has completed his education in Malaysia ([specified] level) and before coming to Australia, he was employed as [an occupation].[2] Currently, while in Australia, the applicant is working [at a business].
When did the applicant realise he was a homosexual?
[1] See the applicant’s form [Q.42] at p.6 Department of Home Affairs file no. [number]
[2] Ibid (see Q.84) in the applicant’s application.
The applicant told the Tribunal as a young adult, he had on a number of occasions tried to have relationships with women but he felt ‘…more comfortable with men…’ When he was [age] years of age and at boarding school, the applicant – the Tribunal was told, understood clearly that his sexuality had changed.
At his boarding school, the applicant the Tribunal was told, had a ‘…very close [male] friend.
The applicant said that the relationship between him and this other male student was ‘…very close…’ and the two male students ‘…lived in the same room…’ The two boys also spent time together.
How did others find out about the applicant’s same-sex relationship?
The applicant said that ‘…one of his friends…’ ‘…found out…’ about his ‘relationship…’ with his male friend and told the other boys and that was when his same-sex relationship became a real problem for him.
After the relationship was made public by others, the Tribunal was told that the applicant ‘…no longer felt calm…’ or at ‘…peace…’ The applicant sensed that because people ‘…knew about his homosexuality’ they ‘…looked down at him…’ and made ‘…bad remarks…’ about him which made him feel very uncomfortable.
However, despite these issues, the applicant stated that he ‘…continued with his studies…’ and ‘…with his relationship…’ with his male friend.
According to the applicant – when his relationship was commonly known, life for him in Malaysia became very difficult because ‘…everyone knew [he] was gay…’
The applicant told the Tribunal that after it was revealed that he was a homosexual, he only managed to live ‘…five months’ with his family before being forced to leave his home and to live elsewhere. The threats and pressures place on him by his family were not easy to handle.
Even when he departed from his home, the applicant said he continued with his relationship but was very careful so that ‘…others…’ did not become aware that he was a homosexual. The applicant – the Tribunal was told – the applicant met his partner ‘…in secret…’ and in a ‘…private…’ area.
The applicant told the Tribunal that before he left Malaysia he had another three same-sex relationships with other males. However, the relationships were of a casual nature and serious.
The applicant stated that his ‘family…’ ‘knew…’ about his relationship and ‘other relationships’ but he continued with them (in secret) despite the family’s knowledge about them.
The applicant said that he refused to talk to his family about his relationships.
The applicant told the Tribunal that one of the older brothers approached him and reprimanded him about his homosexuality – telling him to change the way he lived his life.
The applicant admitted that he was reprimanded by his older brother when he was young but not when he was older – as an adult. At worse, his older brother only threatened him about his sexuality and never actually assaulted him.
The applicant admitted that he was never apprehended by the state or religious authorities while in Malaysia because he was a homosexual but he felt uncomfortable within the community – not being able to be who he wanted to be.
Why did the applicant choose to leave Malaysia?
The applicant stated that he feared being discovered and the consequences that would flow from that discovery. It was always a possibility, according to the applicant that wherever, he went in Malaysia and people found out about his homosexuality, he would not be able to live his life as he does here in Australia.
The applicant believed that his ‘friends’ would tell others about him being a homosexual.
Even if the applicant was to return to Malaysia in future, he would continue to live his life as a homosexual in a ‘secret’ way.
While in Australia, had the applicant involved himself with the LGBTI community in Victoria?
The applicant admitted that he had not involved himself in the Lesbian and Gay community but has ‘…a few friends…who are also gay…’
The applicant admitted to the Tribunal that while in Australia, he had not formed any ‘gay’ relationships. His social life is restricted while living in [a named rural town].
The applicant has contact with one of his sisters (in Malaysia) which he calls to see how she and the entire family were.
What does the applicant fear if he was to return to Malaysia in the reasonably foreseeable future?
The applicant described his return to Malaysia as being ‘…difficult…’ The Tribunal was told, he left Malaysia four years ago and a lot had changed. It would be difficult to start again from nothing. If he returned to Malaysia he would have anxieties return and old fears which he did not want to relive. Australia offered better personal and employment prospects for the applicant – in his opinion.
Country Information – Malaysia – Lesbian, Gay, Bisexual, and Intersex (LGBTI)
May 2014 report by the International Gay and Lesbian Human Rights Commission comments in relation to the Malaysian Penal Code that ‘Sections 377A and 377B criminalise “carnal intercourse against the order of nature” (anal sex, oral sex) between consenting adults regardless of the sexual partner’s gender, as well as gross indecency.’ According to the report:
“Section 377 comes under Unnatural Offences in the Malaysian Penal Code (Act 574). Sections 377A and 377B criminalise “carnal intercourse against the order of nature” (anal sex, oral sex) between consenting adults regardless of the sexual partner’s gender, as well as gross indecency. These sections of the Penal Code have reportedly been invoked only seven times since 1938, four of which were against Anwar Ibrahim, the former Deputy Prime Minister. Punishment for “carnal intercourse against the order of nature” is prison up to 20 years with liability for whipping. Section 377C criminalises rape – non-consensual sexual intercourse that involves oral and anal sex acts carried out under threat of death or hurt to the victim. Punishment for these acts of rape is a prison term of not less than five years and not more than twenty years with liability for whipping. The prevalent notion as expressed in 377C is that oral and anal rape is a lesser crime than anal and oral sex between consenting adults. Section 377D covers “outrage on decency” and criminalises the commission of, attempt to, or conspiracy to commit any act of gross indecency. Punishment is two years in prison…”[3]
[3] International Gay and Lesbian Human Rights Commission 2014, ‘Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia’, in Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia, 6 May, p.33 < Accessed 28 January 2015 <CIS2F827D91966>
An outline of the ‘Unnatural Offences’ and associated punishments within the Penal Code can be located within the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s 2015 publication State-Sponsored Homophobia.[4]
[4] International Lesbian, Gay, Bisexual, Trans and Intersex Association 2015, State-Sponsored Homophobia 2015 - A World Survey of Laws: criminalisation, protection and recognition of same-sex love, pp 77-8 < Accessed 31 May 2015 <CISEC96CF1945>
The International Gay and Lesbian Human Rights Commission reported in May 2014 that ‘[i]n Malaysia, secular laws – Criminal and Civil – and Islamic or Syariah laws co- exist to govern its citizens. Syariah laws are administered at a state level by religious departments, Syariah courts and muftis. These laws apply only to Muslims regarding issues such as marriage, divorce, and the creation and punishment of offences in relation to Islam’.[5] In January 2015, Malaysia’s Court of Appeal was reported to have recently ruled that ‘the Federal Constitution restricts Islamic legislation to marriage, divorce and inheritance based on the Supreme Court’s ruling in the landmark 1988 Che Omar Che Soh case’.[6]
[5] International Gay and Lesbian Human Rights Commission 2014, ‘Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia’, in Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia, 6 May, p.33 < Accessed 28 January 2015 <CIS2F827D91966>
[6] ‘Islamic law restricted to familial matters, Court of Appeal says in transgender case’ 2015, Malay Mail Online, 21 January < Accessed 23 January 2015 <CXBD6A0DE575>
According to DFAT’s 2016 Country Information Report – Malaysia, the Malaysian Government openly discriminates against LGBTI persons:
3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.[7]
[7]Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, sections 3.89-3.94, p.20 <CIS38A80121311>
The Human Rights Watch World Report 2015: Country Summary Malaysia describes discrimination against LGBT persons in Malaysia as ‘pervasive’.[8]
[8] Human Rights Watch 2015, World Report 2015: Country Summary Malaysia, 29 January < <NG5A1E6BC48>
Amnesty International’s Amnesty International Report 2014 – 2015 reports notes LGBTI individuals experience ‘harassment and intimidation’ in Malaysia.[9]
[9] Amnesty International 2015, Amnesty International Report 2014-15 - Malaysia, 25 February < <CXBD6A0DE13338>
In 2016 Freedom House outlines various government led initiatives that discriminate against sexual minorities:
The Ministries of Health and Education conduct campaigns to "prevent, overcome, and correct" symptoms of homosexuality in children, while the Ministry of Information has banned television and radio shows depicting gay characters.[10]
[10] Freedom House 2016, Freedom in the World 2016: Malaysia, May, section F, p.6 < Accessed 16 August 2016 <NGE43874C422>
Malaysian government ministries openly campaign against LGBTI through education and media outlets:
…..In 2014, the government continued attacks on LGBT individuals. The Ministries of Health and Education initiated campaigns for parents, teachers, counselors, and young people to "prevent, overcome, and correct" symptoms of homosexuality in children, while the Ministry of Information banned television and radio shows depicting gay characters.[11]
[11] Freedom House 2015, Freedom in the World 2015: Malaysia, May, Section F < <NG5A1E6BC218>

In its Country Information Report – Malaysia, DFAT notes that from 2011 onwards, various government initiatives have aimed at ‘rehabilitating’ suspected LGBTI youth:
3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.
3.93 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a ‘re- education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government ‘viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting ‘their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.[12]
[12] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, sections 3.92-3.93, p.20 <CIS38A80121311>
According to DFAT’s 2016 Country Information Report – Malaysia, in 2011 Malaysian authorities banned an annual sexuality rights festival under the Police Act following complaints by some Muslim organisations:
3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.[13]
[13] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 3.91, p.20 <CIS38A80121311>
FINDINGS AND REASONS
The applicant claims fear of harm from his family due to his homosexuality.
It should be noted, that the mere fact a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is “well-founded.” Similarly, that an applicant claims to face a real risk of “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant: see, MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1995) 6 FCR 155, at 169-170.
The applicant in his evidence before the Tribunal provided very limited information about his particular circumstances. He did not provide the Tribunal with any in-depth and detailed information about how he expresses his sexual identity of about his past experiences as a gay Muslim man living and working in Malaysia; for example, when asked by the Tribunal to describe and to explain when he finally realised his ‘homosexuality’, the applicant only mentioned his life at his boarding school where he had be-friended another male student and spending time with him. The applicant provided very little detail of how the two enjoyed each other’s company and what they did together with other gay male students for a social life. The applicant did not provide a sufficient and detail explanation of how he came to realise he was a homosexual – except to say - that he tried to have relationships with females but realised he had a strong personal preference for males.
The applicant provided no thought which led him (as he claimed) to want to live his life as a male homosexual; for example, in his evidence before the Tribunal, he said that he had a same-sex relationship with another male he was friends with while he was at boarding school, and that relationship continued for a while after he left school but ended when that male friend returned to his family. The applicant then stated that other ‘relationships’ came and went – three in line and just before he decided to leave Malaysia for Australia. Again, the applicant provided very little descriptive information about these three relationships with three other males. What intrigues the Tribunal is that the applicant claimed he had a partner, but when questioned about those particular relationships, he provided no in-depth detail as far as it concerned that partner, his whereabouts and the extent of his relationship with that partner.
Also, when asked to describe his fears as far as it involved the applicant’s family, the Tribunal was told that when the applicant was young he had been reprimanded by one of brothers but now that he was an adult it was not the same situation. He could face any threat from his siblings but none (he admitted) was forthcoming. The applicant also claimed that he had continued his life as a homosexual in ‘secret’ and most of the time ‘in private’ but still feared how people would think of him and treat him, if they were to be told he was a homosexual but the applicant offered no evidence (credible) of any societal or community reprimands which he had suffered while in Malaysia. Indeed, for example, he admitted that he had not been threatened by local police or any religious department authority.
It should be noted, that s. 5AAA(2) of the Act provides as follows:
“…it is the responsibility of the non-citizen to specify all particulars of his or her claim to be [a person in respect of whom Australia has protection obligations] and to provide sufficient evidence to establish the claim…”
The finds and concludes that the applicant has not provided sufficient evidence to establish his claims of being a male homosexual. The applicant’s evidence before the Tribunal is minimal and sparse on details to indicate to the Tribunal that the applicant has suffered past harm or persecution for reasons of his sexuality while living in Malaysia or that he suffered some on-going discrimination particular or generally as a member of Malaysian society.
Indeed, in determining this matter – that is, as to whether the applicant faces a real chance of persecution in the foreseeable future, as a gay male man in living in Malaysia, the Tribunal has acknowledged and referred to the country information which confirms that although there is a ‘moderate risk’ of official discrimination on a day-to-day basis a body of information exists and shows LGBTI individuals experiencing various degrees of tolerance. Many middle and upper class, educated and urban Malaysians are open about their sexuality within their family and community circles. In particular, gay life is more widespread in urban centres such as Kuala Lumpur. Therefore, the Tribunal finds that there is no real chance of persecution for one or more of the reasons provided for in subsection 5J(1)(a) of the Act if the applicant was to return (in the reasonably foreseeable future) to Malaysia.
Furthermore, the Tribunal finds that the applicant is not a refugee as defined in section 5H of the Act.
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) – complementary protection. For the reasons provided by the Tribunal in paragraphs [58]-[63] of this decision, the Tribunal does not accept that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his homeland – Malaysia, there is a real risk he shall suffer significant harm because of issues involving his sexuality, way of life or because his family’s disapproval of who and what he (the applicant) wants for his own life. Therefore, 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.
Peter Vlahos
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 2626

16 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice