1709624 (Refugee)

1709624 (Refugee) [2017] AATA 3125 (11 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709624
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Frances Simmons
DATE:11 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

STATEMENT MADE ON 11 OCTOBER 2017 AT 5:00PM
CATCHWORDS
Refugee – Protection Visa – Malaysia – Particular social group – Anti-corruption protestor – Bersih movement – Witness credibility – Inconsistent evidence – Actions of applicant not consistent with genuine fear of significant harm – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
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 on 7 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of Malaysia. He applied for the visa on 20 February 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Application for a protection visa
The applicant records that he was born in the state of Kelantan on [a particular date]. He declares that he speaks, reads and writes Malay and English. According to his application, he lived at the one address in Kelantan Malaysia from [his birth] to November 2016. His wife and [children] live in Malaysia.
Between May 2015 and November 2016 he had a small business selling [particular goods]. Previously he worked as [a particular occupation] at a company in [Country 1] from January 2010 to April 2015.
In his protection visa application, the applicant claims:
·The applicant left Malaysia ‘in order to avoid a risk of being arrested by the Malaysian government and police’.
·The applicant claims that the Malaysian Government and police intend to arrest him because he attended demonstrations against corruption.
·From May 2015 he ran a small business and had to bribe government officers. These corrupt officers would close his business if he did not give them money.
·The applicant attended Bersih demonstrations against government corruption in [2016] in Kelantan Malaysia. He was randomly arrested by the police and detained for one week.
·After this time the police came to his place and asked for money. The first time he gave them money and the second time he refused.
·The applicant attended another demonstration in October 2016 and ran away when he saw the riot police approaching.
·The applicant claims that he will be arrested if he returns to Malaysia because he attended demonstrations against corruption in Malaysia.
·The applicant could not relocate within Malaysia as the police wanted to arrest him because he was involved in demonstrating against government corruption.
The delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations on the basis of his political opinion or for any other reason.
Review application
The applicant provided a copy of the delegate’s decision with his application for review.
The applicant appeared before the Tribunal on 11 September 2017. He told the Tribunal he spoke English and would seek the assistance from the interpreter when required. During the hearing the applicant sometimes spoke in English and sometimes the services of the interpreter, who was present throughout the hearing, were utilised.
The applicant presented his passport which indicates that he travelled to [Country 2] [in] November 2016 and departed the same day and travelled to [Country 2] [in] October 2016 and departed the same day. He arrived in Australia [in] November 2016.
The applicant told the Tribunal all the information he had provided in his protection visa application was true and correct. He completed his application himself. What follows is a summary of information the applicant provided at the hearing.
The applicant told the Tribunal he worked in [Country 1] for five years before opening a business in 2015 in Malaysia. After he attended a demonstration he was randomly arrested by the police for one week. The police then came to his place of business to ask for money: the first time he gave them money because they told him if he did not close down his business; on the second occasion he didn’t give them money and they pressured him. He attended another demonstration. Then the police found him and he decided to travel to Australia to claim protection.
The applicant told the Tribunal that the last demonstration he attended was in October 2015, two or three weeks before he left Malaysia. After the Tribunal pointed out he arrived in Australia [in] November 2016, the applicant clarified that the last protest he attended was towards the end of October 2016 in Kota Bharu and about 500 people attended. Asked if he left the country in October, he said no, but, when shown the passport stamps in his passport, he gave evidence he went to [Country 2] twice: [in] October 2016 to visit relatives, and [in] November 2016 to buy [a particular good].
The applicant claimed that if he returned to Malaysia the police would try to get him. The Tribunal put to the applicant that his passport indicated that he was able to travel in and out of Malaysia in October and November 2016. The applicant said he had no problems going out of Malaysia. It was put to him that he claimed the police were looking for him and he was asked to explain how, if this was the case, he was able to travel out of the country. The applicant claimed that they never stopped him travelling in and out of the country; he was allowed to go to [Country 2]. He told the Tribunal after he went to the second demonstration they wanted to find him to get some information about demonstrations.
The applicant gave evidence that he lived at a stated address in Kelantan between April 2015 and [November] 2016 (‘the Kelantan address’). His wife is still living at the Kelantan address and she has no problems living there.
The applicant told the Tribunal that his last job in Malaysia was selling [particular goods] in Kelantan. He had this business for a year before he stopped work in October 2016. He stopped work because the police were asking him for money and this was wrong.
The applicant said he became involved in political activity in June 2015 after he returned to Malaysia from [Country 1] because he saw many people with economic problems and he wondered why they did not grow plants. He found out the problem was due to the harm or threat from wild animals in Malaysia. He conveyed his concern to a local politician (who he named) and, although no solution was provided, he kept writing to this local Member of Parliament to try and fix the problem.
The applicant told the Tribunal that Bersih was ‘an NGO’ that was ‘against corruption’. He didn’t know when it was formed. He repeated his written claims he had been to two demonstrations organised by Bersih. The first protest he attended was in Kota Bharu and was attended by about 1000 people. He decided to protest as he was not satisfied by the things done by the political members; he had raised his concerns but they had not done anything. Instead, they used their powers to give him problems.
The applicant told the Tribunal that his arrest in [2016] was ‘random’; he said [a number of] people were arrested. He was not charged with an offence. He was held for seven days at [a police station]; he didn’t know the address of the station. Asked why he was released, he said they just wanted to take a statement from him, they didn’t charge him.
The applicant was questioned about the Bersih movement and invited to comment upon country information published by DFAT about the treatment of protestors and the Bersih movement (set out below). After the Tribunal raised with the applicant that there was a Bersih rally in November 2016 in Kuala Lumpur, the applicant then claimed for the first time that he was involved in this rally, which he said was held in Kuala Lumpur a few days before he left Malaysia.
The applicant confirmed his evidence was that he went to three political rallies: in [a particular month in 2016], October 2016 and in November 2016 in Kuala Lumpur. He said that he was not involved ‘that much ’in the rally in Kuala Lumpur because he was just an audience. He was watching other people, he did not involve himself.
When the applicant was asked why he would face problems if he returned to Malaysia and attended Bersih rallies, he reiterated that he was involved in Bersih because of his business and the concern he raised with the politician. After that he was pressured by the police.
The Tribunal put to him that, given he could travel in and out of Malaysia, it did not appear he was of interest to the Malaysia authorities at a national level. The applicant said if he went somewhere else maybe his family would face difficulty living. His wife was taking care of his father who was unwell. The Tribunal noted that he had told he had lived in [Country 1] for five years before moving to Australia and leaving his family in Kelantan. The applicant told the Tribunal that even when he was in [Country 1] he was by himself.
The Tribunal put to the applicant that he had lived and worked in different locations and it was unclear why he could not avoid the problems he faced in Kelantan by moving to another part of Malaysia. The applicant suggested that because of the political and police problem, the police might link him again with this issue. The Tribunal put to the applicant that the fact that he had been able to travel in and out of Malaysia [in] October 2016 [in] November 2016 to [Country 2] on his own passport without any difficulty might suggest he is not of any interest to the authorities in Malaysia.
The Tribunal also raised with the applicant its concerns about the credibility of his claims and invited him to comment on information in accordance with the procedure in s 424AA of the Act. Where relevant the applicant’s evidence referred to below.
ASSESSMENT OF CLAIMS AND EVIDENCE
The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant's receiving country for the purposes of the refugee and complementary protection assessment.
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal 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.[1] 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.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220
[2] 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
The Tribunal has significant concerns about the credibility of the applicant’s claims. The Tribunal found the applicant’s evidence about his claimed involved in the Bersih movement to be vague and shifted over the course of the hearing. Of particular concern: the applicant initially gave clear evidence to the Tribunal he attended two protests organised by the Bersih movement in Malaysia. He claimed, consistently with his written claims, that the first demonstration was held in Kota Bharu in [2016] and that he was randomly arrested by the police and that the second demonstration was held in Kota Bharu in October 2016.
However, after telling the Tribunal that the last demonstration he attended in Malaysia was in Kota Bharu in October 2016, later in the hearing his evidence shifted and he claimed that the last demonstration he attended was in November 2016 in Kuala Lumpur. When Tribunal expressed concern that his evidence about how many protests he attended changed the course of the hearing, he replied he was not ‘that much’ involved in the rally in Kuala Lumpur, he was just an audience. The Tribunal is concerned that the applicant has given inconsistent evidence about the demonstrations he has attended in Malaysia and it considers that his changing evidence about this matter casts doubt upon the credibility of his testimony.
The Tribunal also considers the fact that the applicant travelled in and out of Malaysia to [Country 2] on two occasions between October and November 2016 undermines his claims that he was interest to the authorities in Malaysia. While the applicant’s written claims assert that the Malaysian government and police intend to arrest him because he attended demonstrations against corruption in Malaysia, his evidence indicates that, in the two months before he travelled to Australia, he travelled in and out of Malaysia on two occasions to [Country 2]. The applicant’s evidence was that he did not have any difficulty doing so and nor does he claim to have had any difficulty departing Malaysia [in] November 2016 when he travelled to Australia. The Tribunal finds that the applicant’s conduct in returning to Malaysia from [Country 2] is inconsistent with his claim that he feared being arrested or otherwise harmed in Malaysia.
Furthermore, the timing of the applicant’s departure from Malaysia also suggests that he did not leave Malaysia because he was afraid of being harmed. As the Tribunal put to the applicant under s 424AA of the Act departmental records indicate that he was granted a visitor visa on [a particular date in] October 2016. The Tribunal explained that this information was relevant because the fact that he remained in Malaysia until [a particular date in] November 2016 (even though he was in possession of a valid passport and a visitor visa that would enable him to enter to Australia) indicated that he did not leave Malaysia because he was afraid of being harmed or in need of Australia’s protection. The applicant elected to respond to the information at the hearing: he said when he applied for the visa he had already booked his ticket for [November] and he could not change the day. The Tribunal notes he did not claim to have tried to have changed his date of departure or indicate why he decided to depart on this date rather than an earlier date. The Tribunal has formed the view that the fact that the applicant remained in Malaysia for a month after he was granted a visitor visa casts doubt upon his claims that he left Malaysia because he was in need of protection.
Furthermore, while the Tribunal is prepared to accept that the applicant may have written to a local politician in Kelantan regarding his concerns that the impact of wild animals on local businesses, the Tribunal found his evidence about his participation in Bersih rallies to be vague and lacking in persuasive detail. While the applicant was able to identify in very broad terms some of the concerns held by Bersih (for e.g., that they were opposed to corruption) and that Bersih held demonstrations around the country, his evidence about the Bersih movement was limited to generalities. He did not claim to be a political organiser or a high profile political activist. Furthermore, as noted above, the fact that he was able to travel freely in and out of Malaysia indicates that he is not of interest to the Malaysia authorities and undermines his written claims that he could not relocate within Malaysia because the authorities intend to arrest him because he attended demonstrations against corruption.
The Tribunal acknowledges that DFAT reports that individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds.[3] However, as the Tribunal put to the applicant, DFAT assesses that ‘protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest. High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code. [4] As the Tribunal explained to the applicant, the question it must consider is whether there is a real chance that he would face serious harm or significant harm if he returned to Malaysia now or in the reasonably foreseeable future. However when the Tribunal put to the applicant that, even if it were to accept that he would be involved in Bersih rallies if he returned to Malaysia, the risk that he would face any harm for doing so might be considered to be remote, the applicant declined to make any comment.
[3] DFAT Country Information Report Malaysia, 19 July 2016, p.16
[4] DFAT Country Information Report Malaysia, 19 July 2016, p.16

However, as the Tribunal discussed with the applicant, the Tribunal has been unable to locate specific information about Bersih rallies in Kota Bharu in [a particular month in 2016] or October 2016 although it did locate a report that Bersih had a seven week nationwide road show in October 2016 where they went to different regions in Malaysia (including Kota Bharu) to mobilise support for the Bersih rally held in November 19 2016[5]. However, as the Tribunal put to the applicant, it could not locate any reports of people being arrested or detained because of their involvement in the Bersih movement in Kelantan and the people most at risk of being arrested in relation to their involvement in the Bersih movement seemed to be high profile leaders and activists. The applicant did not wish to comment on this information.
[5]
According to DFAT, Bersih, which is a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4). The rallies attracted thousands of protesters and were supported by opposition parties. The Bersih 4 rallies on 29 to 30 August 2015 saw approximately 100,000 people, mostly opposition parties and their supporters, civil society activists and Chinese Malaysians, take to the streets in Kuala Lumpur to call for the resignation of Prime Minister Najib in light of 1MDB corruption claims. The protest was peaceful and no violence was reported, despite the government declaring the protest illegal and banning the yellow t-shirts with ‘Bersih’ print that were worn by the protestors. [6] This was an improvement on the July 2011 Bersih 2 protest where the police used tear gas and water cannons to break up the protest and made approximately 1,500 arrests. [7]
[6] DFAT Country Information Report Malaysia, 19 July 2016, p.16
[7] DFAT Country Information Report Malaysia, 19 July 2016, p.16
For the purpose of this decision, the Tribunal has accepted that Bersih rallies occurred in Kota Bharu in [2016] and October 2016. However, the Tribunal found the applicant’s account of being randomly arrested at a Bersih rally in Kota Bharu and held for a week to make a statement before being released without any further action being taken against him vague and unpersuasive. It was not otherwise supported by independent country information. The fact that the applicant did not provide any comment in response to DFAT’s assessment of the risks facing protestors reinforces the Tribunal’s doubts about the applicant’s claims that he is afraid of being arrested if he returns to Malaysia because he was involved in demonstrations against government corruption. Having considered the applicant’s travel in and out of Malaysia in the months immediately before he travelled to Australia, the timing of his departure from Malaysia, as well as his shifting evidence about the number of Bersih demonstrations and his evidence that his business (which he claims was targeted by corrupt government officials) was able to operate up until October 2016, the Tribunal is drawn to the conclusion that the applicant was not of any adverse interest to the Malaysian authorities for any of the reasons claimed.
For all the reasons set out above, Tribunal is drawn to the conclusion that the applicant has not told the truth about the reasons he left Malaysia and the reasons he does not want to return to his country now. Having regard to its cumulative concerns about the credibility of the applicant’s testimony, the Tribunal has concluded he is not a credible witness. The Tribunal does not accept that he fears that he will be harmed if he returns to Malaysia because of his political beliefs and activities or that this was the reason he left Malaysia in November 2016. The Tribunal does not accept that the applicant was ever a protestor at Bersih rallies in Kota Bharu or Kuala Lumpur. The Tribunal does not accept that the applicant was arrested and detained for a week after attending a Bersih rally in Kota Bharu in [a particular month in 2016] and it rejects, in their entirety, his claims that he attracted the adverse attention of the authorities because he attended government demonstrations against corruption. The Tribunal does not accept that the applicant was harassed or subject to demands for money by corrupt officials (either at home or at his business or elsewhere) and it rejects, in their entirety, his claims that his business was targeted by corrupt police/government officials who demanded that he give him money.
Because the Tribunal is not satisfied that the applicant ever attended Bersih rallies in Malaysia or any other political protests, the Tribunal rejects his claims that the Malaysian government and police intend to arrest him because he attended demonstrations against corruption or that he is otherwise of adverse interest to the Malaysian authorities. Furthermore, the Tribunal is not satisfied that, if he returned to Malaysia now, he would wish to attend protests or demonstrations in support of the Bersih movement and/or against government corruption. Furthermore, while it is possible that the applicant wrote letters of complaint to a local politician as claimed, the Tribunal does not accept that doing so attracted the adverse attention of the authorities. Furthermore, while the applicant’s business may well have ceased operating in around in October 2016, the Tribunal is not satisfied that the applicant decided to close his business because of pressure from corrupt officials/police and it rejects his claims that he refused to give corrupt police/officials money.
The Tribunal does not accept that the applicant was actively involvement in the Bersih movement or that he would seek to attend political rallies or involve himself in the Bersih movement if he returned to Malaysia. In making these findings the Tribunal is not improperly requiring the applicant to modify or suppress his political opinion. Rather, the Tribunal has formed the view that the applicant has no genuine interest in, or commitment to, participating in demonstrations against government corruption/ participating in Bersih rallies. Even if he writes letters to local politicians about issues affecting business in Kelantan, the Tribunal does not accept that there is a real chance that he will face serious harm or significant harm on this basis. The Tribunal finds that there is no real chance that the applicant will be persecuted by the Malaysian authorities or any other person or group if he returns to Malaysia now or in the reasonably foreseeable future for any reason related to his political opinion and/or the corrupt conduct of government officials or any other reason.
Conclusions
Having regard to its findings of fact and the country information, the Tribunal finds that he does not face a real chance of persecution now and in the reasonably foreseeable future in Malaysia for reasons of his actual or imputed political opinion, or because he attracted the adverse interest of the police or for any other reasons. On the evidence before it, the Tribunal finds that there is no real chance that he will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
The Tribunal has considered whether the applicant is entitled to complementary protection. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB.[8] In view of the above findings of fact and the country information set out above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. Accordingly, 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 that he will suffer significant harm. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
[8] [2013] FCAFC 33
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Frances Simmons
Member

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

[2017] AATA 3125

11 October 2017

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