1709239 (Refugee)

1709239 (Refugee) [2021] AATA 1439 (7 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709239
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Tamara Hamilton-Noy
DATE:7 April 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 07 April 2021 at 11:50am
CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of social group – homosexuals – same sex relationship in Australia – dangers of being openly homosexual in Malaysia – family’s Muslim religion – lower socioeconomic status – small village environment – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 dependants.
STATEMENT OF DECISION AND REASONS
Background

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 arrived in Australia [in] May 2016 and departed Australia [in] May 2016. He arrived again in Australia [in] July 2016 and applied for protection on 24 October 2016.[1]
[1] Movement details taken from Department decision, a copy of which was provided by the applicant to the Tribunal.
Claims and Evidence
Evidence before the Department
In his written protection application, the applicant stated he was born in Puchong, Selangor and that both of his parents are Malaysian citizens. He stated he is a Malay Muslim and described his occupation as ‘jobless’. He stated that he had left Malaysia because he is gay and Muslim, that his family knows about him and are very angry and that his family is very religious and he is not. He stated that his family are looking for a girl for him to marry and he was scared and this is why he ran away. He stated that, if he returns to Malaysia, he fears his family may beat him and force him to marry a girl, and that he could go to jail because being gay in Malaysia is illegal. The applicant stated that he had not experienced harm within Malaysia. He fears that, if he returns, he will be beaten and put in jail, and he would be unable to relocate because his family will find him and the Malaysian government won’t protect him.
A delegate of the Department found that the applicant had provided limited and vague information, without supporting evidence, to support his claims. The delegate accepted that discrimination against gay men occurs to a varying degree in Malaysia, but that this does not amount to serious harm, even considered cumulatively and over time. Country information does not support that there is a significant level of violence against gay men and any negative attitudes would not prevent the applicant from living in the Malaysian community or expose him to serious harm. The delegate found the applicant is not a refugee as there is no evidence he would be likely to face persecution as a gay man in Malaysia. As to his claims that his family would force him to marry a woman against his wishes, the delegate found that there was no evidence the applicant would be forced to marry without his consent. The delegate found that the applicant is not owed complementary protection because they were not satisfied he would face significant harm if he returns to Malaysia.
Evidence before the Tribunal
The applicant requested a review of the Department’s decision by this Tribunal on 27 April 2017. On 16 July 2018 he provided a statutory declaration dated 13 July 2018, a statutory declaration prepared by [Mr A]and photos and receipts relating to travel with [Mr A]. Relevant parts of this evidence are discussed further below.
The matter was constituted to the Member on 21 February 2020. Shortly after constitution, the Tribunal’s Melbourne Registry closed due to the COVID-19 pandemic. On 3 June 2020, a Tribunal Officer contacted the applicant to determine his ability to participate in a MS Teams video hearing. On the same date, the applicant confirmed he had downloaded the technology for a video hearing.
On 5 June 2020, the applicant was invited to attend a video hearing by MS Teams on 1 July 2020. On 10 June 2020, the applicant provided a hearing response stating he would be attending the hearing and did not anticipate any difficulties in participating in a hearing by video.
On 18 June 2020, the applicant notified the Tribunal that he had appointed a representative. On the same date, the applicant’s representative requested a postponement of the hearing until face-to-face hearings resumed in Melbourne. On 18 June 2020, the applicant’s representative was advised by the Tribunal that the hearing would be postponed and that, with a view to progressing the matter and having regard to the Covid-19 Special Measures Practice Directions (Migration and Review Division), the representative was requested to provide: a written statement by the applicant; clarification of witnesses that would be called at a hearing; relevant country information; and legal submissions. The Tribunal requested that these be provided by 16 July 2020.
On 24 June 2020, the applicant’s representative requested that any information be provided a month prior to a hearing being scheduled. On 25 June 2020 the Tribunal responded to the applicant’s representative’s request, stating that the Tribunal would correspond further once in-person hearings resumed.
On 1 September 2020 the Tribunal contacted the applicant’s representative to request clarification of whether she could access MS Teams for a directions hearing. On 15 September 2020 the applicant’s representative stated she was having difficulties accessing MS Teams.
On 21 September 2020 the applicant was invited to attend an informal directions hearing by telephone. On 22 September 2020 the applicant’s representative objected to a directions hearing taking place. On 25 September 2020 the Tribunal wrote to the applicant’s representative and advised that the directions hearing would proceed.
An informal directions hearing took place on 8 October 2020 by telephone.
On 18 January 2021 the Tribunal’s Melbourne Registry had commenced some in-person hearings. The Tribunal contacted the applicant’s representative and requested she contact the Tribunal about arrangements for an in-person hearing, given that the Tribunal’s premises were only allowing a limited number of people to attend each hearing, given ongoing restrictions in Melbourne.
On 28 January 2021, the applicant’s representative advised that the applicant would be calling three witnesses at a hearing. On the same date, the applicant was invited to an in person hearing at the Tribunal’s Melbourne Registry for 2 March 2021.
On 24 February 2021 the applicant’s representative emailed the Tribunal, stating that relevant statements and evidence were attached. Nothing was attached to the email. A cpoy of the attached documents was provided by the applicant’s representative following the hearing.
The Tribunal hearing was conducted on 2 March 2021. The applicant was represented at the hearing and the Tribunal was assisted during the hearing by a Malay interpreter. The Tribunal took evidence from the applicant’s current partner during the hearing, relevant parts of which are referred to below.
Following the hearing the applicant’s representative provided submissions to the Tribunal, relevant parts of which are referred to below.
Consideration of Claims and Evidence
The relevant law
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.
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.
Assessment, Reasons and Findings
The applicant travelled to Australia on a Malaysian passport and has at all times maintained that he is a citizen of Malaysia. The Tribunal was assisted during the informal directions hearing and at the hearing by a Malay interpreter. The Tribunal accepts the applicant is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality.
The Tribunal accepts the applicant’s evidence that he was born in Puchong, Selangor and that he lived in a small village outside of Kuala Lumpur. The Tribunal accepts that the applicant’s family are practicing Muslims, that his father is deceased, that his mother lives with one of his sisters and a brother, and that another sister is married and lives separately. The Tribunal accepts the applicant completed a diploma [in] Malaysia and that he has found work in Malaysia and since arriving in Australia.
As to his claims for protection, the Tribunal found the applicant to be a generally credible and straightforward witness. The applicant has consistently claimed to have left Malaysia because of his sexuality. While he did not provide a lot of detail in his written claims to the Department, his written reasons are consistent with his claims advanced at hearing. The Tribunal is also mindful that the applicant was of a young age when he applied for protection and was not legally assisted to complete the claim form. Further, the Tribunal had the benefit of speaking to the applicant during a hearing and of taking evidence from his current partner at the hearing. The evidence of the applicant and his partner was largely consistent and the Tribunal considered that minor discrepancies in their evidence did not detract from their overall credibility.
The Tribunal notes that the applicant first arrived in Australia [in] May 2016 and stayed for only four days. His explanation that he travelled with extended family for this short period of time before returning to Malaysia is accepted by the Tribunal. The applicant’s return to Malaysia for two and a half months before returning again to Australia also does not, in the Tribunal’s view, detract from the overall credibility of his claims, on the basis of the findings made below about the applicant’s avoidance of harm while living in Malaysia and the reasons for this.
Based on the evidence given by the applicant at hearing, which the Tribunal found credible, the Tribunal accepts that the applicant identifies as homosexual. The Tribunal accepts the applicant did not have any relationships in Malaysia, with either a female or a male, and that he realised his sexuality after being attracted to a celebrity at [age] years of age and later attracted to a classmate at [age] years of age. The Tribunal accepts the applicant’s evidence that his college friends recognised he was gay but that there was no open discussion with them about this and that his family were not told about his sexuality. The Tribunal is prepared to accept the applicant attended a counsellor after experiencing heart palpitations in Malaysia after identifying himself as homosexual.
The Tribunal finds that the applicant did not experience harm in Malaysia because he hid his sexuality from family and the wider community in fear of repercussions if he was openly identified as homosexual.
The totality of the evidence before the Tribunal was consistent and credible in establishing that the applicant is in a genuine and ongoing relationship with his current partner [Mr A]. While witness statements provided by the applicant to the Tribunal are not prepared by persons independent of the applicant, they provide further support for the applicant’s claims and, given the findings of the Tribunal about the applicant’s overall credibility, are accepted by the Tribunal. The Tribunal also notes that other documents provided by the applicant support that the applicant and [Mr A] have shared holiday events together over several years. While also not conclusive, they also provide support for the applicant’s claims to have been in a long-term, committed relationship with [Mr A].
The Tribunal accepts that the applicant and [Mr A] met in November 2016 and that this is the applicant’s first same sex relationship. The Tribunal accepts from the evidence before it that the applicant moved into [Mr A]’s home in mid-2020 after losing his employment due to the COVID-19 pandemic and that, prior to that, [Mr A] would visit the applicant at his rental addresses but would not stay overnight with him. The Tribunal accepts that the applicant and [Mr A] have a sexual relationship, that they share a bedroom although the applicant has access to a separate bedroom where he stores his belongings and sleeps occasionally, and that they share household tasks, social activities and holidays and have exchanged gifts for special events such as anniversaries and Christmas. The Tribunal accepts that the applicant and [Mr A] do not have shared financial commitments but that the applicant transfers money to [Mr A] for his share of household expenses. The Tribunal accepts that the applicant and [Mr A] have a commitment to the relationship continuing long-term, as evidenced by their intention to move interstate and purchase a home together and for the applicant to join the same industry that [Mr A] is currently working in.
The Tribunal finds that, if he returns to Malaysia now or in the reasonably foreseeable future, the applicant would return to the village in Puchong, Selangor where his family are residing. The Tribunal accepts that the applicant’s family is Muslim and that the applicant identifies as Muslim although does not actively practice his religion in Australia, for example, by attending mosque or participating in Ramadan. The Tribunal finds that, if he returns to Malaysia, the applicant would return as a Muslim homosexual man living openly in a same-sex relationship.
Adult same-sex acts are illegal in Malaysia, regardless of age and consent, and the Penal Code provides for imprisonment and whipping as penalties for ‘carnal intercourse against the order of nature’. In addition, state sharia laws also prohibit same-sex relationships and non-normative gender expression.[2] State sharia laws apply to Muslims across all of the 13 states and three territories of Malaysia and all states criminalise same-sex sexual acts with fines, imprisonment and whipping.[3] At a community level, there is a strong social taboo against LGBTI issues, particularly amongst Muslims, with online abuse and violence by family members reportedly common.[4]
[2] DFAT Country Information Report Malaysia, 13 December 2019, at 3.130.
[3] UK Home Office, Country Policy and Information Note: Malaysia: sexual orientation and gender identity or expression, June 2020, at 2.4.4.
[4] DFAT Country Information Report Malaysia, 13 December 2019, at 3.130.
Members of the LGBTI community have faced threats, stigma, violence, including sexual violence, and discrimination from society.[5] DFAT assesses that the level and frequency of discrimination faced by members of the LGBTI community differs according to their socio-economic status, religion, geographic location and degree of openness; and that well-educated urban LGBTI individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. Society is reportedly more permissive of LGBTI people in Kuala Lumpur than in East Coast peninsular Malaysia or Sabah and Sarawak.[6]
[5] UK Home Office, Country Policy and Information Note, Malaysia: Sexual orientation and gender identity or expression, June 2020, at 2.4.32.
[6] DFAT Country Information Report Malaysia, 13 December 2019, at 3.140.
DFAT assesses that LGBTI individuals face a moderate risk of official and societal discrimination, which may include prosecution, ‘re-education’, exclusion from public spaces and employment opportunities and/or familial and societal violence. Some of the risks are higher for transgender individuals and for those located in poorer and rural areas.[7]
[7] DFAT Country Information Report Malaysia, 13 December 2019, at 3.141.
The Tribunal finds that homosexual men in Malaysia face prosecution, ‘re-education’, threats, stigma, discrimination and violence. In addition, Muslim homosexual men are subject to state sharia laws and face online abuse and violence from the local Muslim community. The Tribunal accepts the submissions made on behalf of the applicant that, as his family is not of high socio-economic status and lives in a rural area of Selangor and, given that he is living openly in a same-sex relationship, his risk of harm is heightened.
The Tribunal finds that the applicant would face physical harm, threats, prosecution, stigma and violence as a Muslim homosexual man in Malaysia if he were open about his sexuality and about his current same-sex relationship. Given the range of harm against the LGBTI community in Malaysia, and taking into account the applicant’s particular circumstances, the Tribunal finds that the chance of the applicant facing such forms of harm is not remote or fanciful and that the chance of harm relates to all areas of Malaysia.

While the applicant did not experience harm previously in Malaysia, the Tribunal notes that s.5J(3) states that a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identify or conceal his or her true sexual orientation. The Tribunal finds that a modification of the applicant’s behavior to avoid a real chance of persecution would conflict with a fundamental characteristic of his identity and conceal an innate or immutable characteristic and his true sexual orientation and gender identity.
As to the question of state protection, country information considered by the Tribunal states that the former government was opposed to the promotion of LGBTI issues and had committed to a five-year plan to address ‘social ills’. The new government that came in as of May 2018 led to a general improvement in the human rights situation in Malaysia, but LGBTI issues remained sensitive, and government representatives in 2018 and 2019 made public comments showing a lack of support for the LGBTI community.[8]
[8] DFAT Country Information Report Malaysia, 13 December 2019, at 3.131.
JAKIM and other state religious authorities have occasionally conducted raids on LGBTI events, for example, on a Kuala Lumpur nightclub in 2018 known to be popular among the LGBTI community. State religious officials have also reportedly conducted raids on private premises, sometimes accompanied by members of the Royal Malaysia Police.[9] State authorities are reported to have been responsible for arrests, violence, detention, harassment and discrimination towards LGBTI persons, with reports of police physically and sexually assaulting them.[10] In November 2019, media reported on the sentencing of five men to jail, fines and caning in Selangor Syariah High Court for attempted sexual intercourse following the raid on an apartment, with a further six men due to face trial for the same charges.[11]
[9] DFAT Country Information Report Malaysia, 13 December 2019, at 3.133.
[10] UK Home Office, Country Policy and Information Note, Malaysia: Sexual orientation and gender identity or expression, June 2020, at 2.5.3.
[11] UK Home Office, Country Policy and Information Note, Malaysia: Sexual orientation and gender identity or expression, June 2020, at 4.1.3.
In addition, federal and state authorities have promoted rehabilitation or re-education programs aimed at changing sexual orientation or gender identity (conversion therapy). A number of state governments run re-education programs for LGBTI individuals, including the Selangor state government which offers inducement payments to members of the LGBTI community to undergo treatment by groups that can ‘liberate, manage, protect, treat and rehab [the] community’.[12]
[12] DFAT Country Information Report Malaysia, 13 December 2019, at 3.134 – 3.135.
The Tribunal finds from this information that the state has been not only openly unsupportive of the LGBTI community in Malaysia, but has also been directly involved in harm to members of the LGBTI community. The Tribunal finds that the applicant would be unable to access effective state protection if he returns to Malaysia now or in the reasonably foreseeable future.
The Tribunal finds that Muslim homosexual men in Malaysia are a particular social group as defined in s.5L, as their characteristics are shared by each member of the group, each characteristic is an innate or immutable characteristic and is so fundamental to members’ identity or conscience that the member should not be forced to renounce it. This characteristic distinguishes the group from society and the uniting characteristic is not a fear of persecution.
The Tribunal finds that the applicant’s membership of the particular social group of Muslim homosexual men in Malaysia is the essential and significant reason for the harm he fears in Malaysia. The Tribunal finds that the harm feared by the applicant amounts to serious harm and that it involves systematic and discriminatory conduct as required by s.5J(4).
The Tribunal finds that there is a real chance the applicant will suffer persecution for reasons of his membership of the particular social group, Muslim homosexual men in Malaysia, if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal is satisfied that the applicant’s fear of persecution is well-founded and that he is a refugee as defined in s.5H.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Tamara Hamilton-Noy
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.
…

[2021] AATA 1439

7 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction