1710105 (Refugee)

1710105 (Refugee) [2017] AATA 2972 (22 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710105
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Luke Hardy
DATE:22 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 November 2017 at 12:44pm
CATCHWORDS
Refugee – Protection visa - Malaysia - Race – Chinese - Harm from Malay gang – Implausible, contradictory and inconsistent evidence - Identical claims as another application – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and 36(2B), 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [is] an ethnic Chinese citizen of Malaysia. He arrived in Australia via [City 1] [in] April 2015 a [temporary] visa and overstayed. Around two years later, [in] March 2017, she lodged a protection visa application with the Immigration Department. The Minister’s delegate refused to grant the visa [in] April 2017.
[The applicant] appeared before the Tribunal on 22 September 2017 to give oral evidence and present arguments. The hearing was facilitated by an interpreter in the Mandarin-English medium.
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
The issues
The main issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds. Another significant issue in this case is [the applicant]’s credibility as a witness.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Immigration Department
In his original protection visa application, [the applicant] claimed to have been an unmarried [occupation] in Melaka. He claimed that “some Malays” came to “our” house, citing the “13 May 1969” race riots in Kuala Lumpur (KL), in which thousands of Malays went on an anti-Chinese rampage, and demanding he leave Malaysia, or else be killed by them. He claimed he did not immediately worry about the incident but became more concerned after the gang reappeared at his house with a “[weapon]”. He said that after that, “we have no choice but [to move] from place to place”.
[The applicant] claimed that racist Malay gangs hate all Chinese who have joined “the NOC”, an interim body that ran Malaysia in the aftermath of the 13 May 1969 riots until parliament could again resume control of the country.[1] He did not suggest he or anyone he knew had been part of any such body. I note that [the applicant] was not born until [year].
[1] DFAT Country Information Report: Malaysia, 19 July 2017
[The applicant] claimed the Malay gang even disrupted him at his workplace, threatening him there with a [weapon]. He said they came often to his work place, sometimes as often as once a week, demanding that he leave Malaysia and threatening him. He said this seriously affected his work and his life.
[The applicant] claimed the gang used to pursue him on his way home from work and even [hurt him] with a [weapon] a few times as he walked home.
[The applicant] claimed he lodged a police report but received no feedback from the police as to any action or results arising. He said that people avoid discussing Malaysia’s history of Malay-Chinese racial issues.
[The applicant] said he had heard that the gang that harassed him was “directed” by “some top politician”. He said he tried to move to an “outstation” and even change his work on a number of occasions, only to be located by the gang. Seemingly contradicting his claim about changing jobs in Malaysia, [the applicant] claimed to have worked as [an occupation] for the same firm at the same Melaka address from until March 2015, just before he came to Australia.
[The applicant] said the current political situation in Malaysia was “better than before” but said he did not want to go back to Malaysia because some politicians are corrupt and wield too much power. He said the police are unable to provide protection in Malaysia. He said no-one had ever apologised for all of the ethnic Chinese who were killed in the 13 May 1969 riots.
[The applicant] provided no supporting material and did not even provide any dates or timelines such as might assist in assessing when the claimed mistreatment in his case occurred.
[The applicant] was not interviewed by the delegate. He did not submit a copy of the delegate’s decision. He did not lodge any submissions with the Tribunal.
Evidence to the Tribunal
At the Tribunal hearing, [the applicant] said he arrived in Australia via [City 1] where he stayed for [a few] months before moving to [City 2], where he resided at an address in [Suburb 1]. He said he lived at the [Suburb 1] address for about a year and then, in January 2017, moved to an address in [Suburb 2].
I asked [the applicant] if he knew anyone in Australia who applied for a protection visa on the same day as he did and he said he did not because he applied by himself. I asked him if he knew anyone else in Australia who had also applied for a protection visa in this country and he said he did not. I asked him if he had ever resided with anyone in [City 2] (i.e., in [Suburb 1] or [Suburb 2]) who he had also known and mixed with during his time in [State 1], and he said he did not. I asked him if he was currently living with anyone at the [Suburb 2] address who had also shared accommodation at the [Suburb 1] address, and he said he was not.
I asked [the applicant] if he is in any kind of partner relationship with anyone in Australia and he said he is not; he said that all his intimate relationships had been in Malaysia. He did say that he was currently sharing accommodation with [number] people of whom one is female but said that this woman, who he knows only as “[name]” was not his girlfriend. He emphasised that he has never cohabitated with a girlfriend in Australia.
I asked [the applicant] how he has been able to support himself in Australia since he came here in early 2015, and he said his parents send him money. I put to him that such a level of support over such a period suggested that his family enjoys a substantial degree of stability in Malaysia, and he said that this was they are “middle class”. He concurred with the perception that his family has not been affected by any potentially relevant disruptions in Malaysia.
[The applicant] told me he had not lived with his parents since he was [age]. I asked him about domestic arrangements in Malaysia because he had not provided any such information in responses to questions about domicile in Malaysia; the first and only address he had provided was an address in [street], not [another street] as now claimed, [in Suburb 2].
I asked [the applicant] to tell me who had helped him with his protection visa application, as he claims not to speak English whereas the application is filled out in English. In reply, he said he was helped by his friend. I asked for the friend’s name and [the applicant] said “[Mr A]”. He said that [Mr A] helped him fill out, sign and complete the form at his ([the applicant’s]) home.
I asked [the applicant] if all of the claims in his protection visa application form were true and correct and he said, “Yes.” I asked him how he had ascertained that all of the information in his form was true and correct and he said, “we did [the form-filling] together with that man.” I asked him to tell me who he was talking about specifically when he said “we” prepared applications “together with that man,” and in reply he said, “Me and [Mr A],” meaning himself and the man who facilitated his protection visa application. I returned to this issue later in the hearing, because [the applicant] had quite clearly identified a plural “we” that was separate from “that man” who he identified as “[Mr A]”.
[The applicant] said the house where he was assailed by the racist Malay gang was a flat he shared with co-workers; however, he provided evidence at the Tribunal hearing that plainly contradicted claims he had made in his protection visa application. For a start, he told me that the gang did not know where he worked and only ever attacked him at his residential address. I put to [the applicant] the discrepancy between what he said to me and what he said in his protection visa application and he said the discrepancy was the result of an error on the part of Mr “[A]”.
Secondly, whereas he claimed in his protection visa application that the gang [used] a [weapon] on several occasions, he claimed to me that the only weapons they ever brandished were [specific weapons]. When I raised this inconsistency with [the applicant], he said no [weapon] had ever been involved.
Thirdly, although [the applicant] claimed to me that the gang [hurt him] with their [weapons], he said this happened inside his home, rather than while he was walking home from work, as previously claimed. When I raised the discrepancy between the original and more recent claims, [the applicant] simply acknowledged that this was another claim about being attacked on the way home was also not true.
Furthermore, whereas [the applicant] had originally claimed that the [incident] happened a few times when he was on his way home, he told me such an attack only happened once. [The applicant] indicated that the claim in his protection visa application form was not reliable, telling me that the [incident] only ever happened once.
In addition to these material inconsistencies, I found other parts of [the applicant]’s evidence somewhat implausible in the claimed circumstances. He claimed that the gang used to kick down the front door of the flat where he and his colleagues lived, and did the same again after they moved to another flat; however, he also claimed that these loud attacks did not attract any attention from neighbours. I asked him if the gang ever attacked other flats where he lived and he did not know. I asked him if he had any Chinese neighbours in either building and he seemed to evade the question, saying he had Muslims living on the floor above at one of the flat blocks. He did ultimately indicate, though, that he had Chinese neighbours but did not know if any of them had been attacked by the gang because he had not thought about asking if any other local Chinese were being treated in a similar way to the manner in which he was being treated.
I asked [the applicant] if he had any ideas or theories as to whether the Malay gang was affiliated with or controlled by anyone and he said he did not. I then put to him that in his protection visa application form he had suggested the gang was being co-ordinated I some way by a “top politician”. In reply, he said he did not know. I put to him that this appeared to be another unreliable claim in his protection visa application and he agreed.
Meanwhile, other claims in the protection visa application form that were not central to [the applicant]’s main substantive claims were consistent with what he told me at the hearing, such as his having attended a Catholic [school]. I put to [the applicant] that it seemed all of the basic biographical data that appeared in his protection visa application appeared not to have been misunderstood or mistranslated whereas a number of this substantive claims appeared simply to be false. In response he said, “some minor details are incorrect.” I put to [the applicant] that it appeared that there were inconsistencies in quite significant claims in his case. And that if one put them aside as “minor details” what remained of his claims was very vague; in reply, he said this was correct.
Essentially, I indicated to [the applicant] that I was concerned about discrepancies in his case being attributed to anyone other than himself.
I asked [the applicant] if he was acquainted with anyone else who had been harassed in a similar way by a Malay gang and he said he did not. I asked him if he knew anyone in Malaysia who had been harassed in a similar way and he said he did not. I reminded him then that he had just claimed that his flatmates in Melaka had also been similarly harassed and he said, “I didn’t know.”
[The applicant] said he did not know anyone in Australia who had applied for a protection visa.
[The applicant] showed me his driver’s licence which shows that he was residing at an address in [Suburb 2], as at the time of the issuing of the licence. He told me he only resided at that address for two weeks.
Under the protocols of s.424AA, I put to [the applicant] that his claims were essentially very similar to those made by another protection visa applicant ([Ms B]), whose review application (number 1710104) was listed for hearing before me on the same day. Under the same protocols, I put to him that this other applicant had given the [Suburb 2], address as her only address in Australia. I put to him that this other applicant knew him by his full name and also claimed to have been assisted by “[Mr A]” in the preparation of a somewhat identical set of protection visa claims. I put to [the applicant] that he and the other applicant not only gained assistance form the same agent but also lodged their protection visa applications on the same date. I put to [the applicant] that subject to comments and responses he might provide this information before me would be a reason for refusing him a protection visa, as it contradicted many of his claims before me, appeared to undermine the suggestion that his claims are individual claims originating from him and also contradicted the suggestion that he did not know any other person who was applying for a protection visa in Australia. I asked [the applicant] whether he wished to comment or respond immediately or, instead, wished to ask for more time; in reply, he opted to respond immediately.
[The applicant] said that “[Mr A]” might have had more than one client on the same day. I then asked [the applicant] how the other protection visa applicant knew him by name and in reply he said he did not know
Under all of the same s.424AA protocols, I put to [the applicant] that the other applicant claimed to me that she had been living in a relationship with him. I then asked [the applicant] whether he wished to comment or respond immediately or, instead, wished to ask for more time, and, in reply, he opted to respond immediately: he said “That other person was correct.”
Essentially, [the applicant] now acknowledged having given me false information in response to the information I had put to him under the protocols of s.424AA.
I put to [the applicant] that he had significantly changed his evidence within the duration of the Tribunal hearing and, in reply, he said, “Yes.” I put to him that in the circumstances it might be difficult to accept that he had ever encountered the gang described in his protection visa application. In reply, [the applicant] said his “gang story is correct”, and that the other applicant’s is different. (Here he seemed to be suggesting that the other applicant’s account was different enough to be unique and truthful.)
I asked [the applicant] if he knew that name of the other applicant and he said, “No.” He then changed his evidence when I asked if they were living together, and he said they “could be”, whereupon I asked him to name the other applicant he was talking about and he said her name was [Ms B].
I asked [the applicant], if, putting aside his claims about attacks, threats and home invasions by the racist gang, there might be any other reasons why he might face a real chance of persecution or a real risk of significant harm in Malaysia. In reply, he said he faced “psychological hurt”; however, he then said he faced this from the gangs that had broken into his home, and indicated that he did not fear harm from anyone else for any reason.
I asked [the applicant] if he had any other claims and he said he did not. I asked him to clarify that he was a Buddhist who had been educated in a Catholic school, as stated in his protection visa application form. In reply, he said this was correct. I asked him if he had any claims in relation to religion and he said he did not.
Findings in relation to s.36(2)(a) of the Act

I accept that ethnic Chinese in Malaysia experience some societal and institutional discrimination, largely due to the Malaysian government’s “affirmative action” policies favouring ethnic Malay Muslims in that country[2]. Whether [the applicant] faces a real chance of persecution for reasons of being Chinese is a separate matter that I must consider on its merits.
[2] DFAT Country Information Report: Malaysia, 19 July 2017, cited at length in the primary decision [number]
I accept that [the applicant] is an ethnic Chinese citizen of Malaysia who lived and worked in Perak. I note that [the applicant]’s only claims about harassment for reasons of his ethnicity or “race” are the claims about the gang that invoked “13 May 1969” whilst intimidating, assaulting and threatening him. I do not accept that ever could have joined the NOC as[reasons deleted].[3] In any event, I have several problems with his clams about the purported gang that supposedly antagonised NOC members.
[3] DFAT Country Information Report: Malaysia, 19 July 2017
As shown above, I find that [the applicant]’s claims about his encounters with the gang are inconsistent in several particular regards; this is even without factoring in the his misleading evidence about his relationship with the other applicant who had made the same claims through the same “agent”.
Generally, [the applicant] had no explanation for the discrepancies between his written and oral evidence, except sometimes to blame the man he called “[Mr A]” and to say that “some minor details are incorrect.” I have duly considered whether the [applicant]’s claims contain a germ of truth that might somehow have been compromised by errors and other ineptitude on the part of the man identified here as “[Mr A]”; however, I have also had regard to other factual problems in this case that have nothing to do with the alleged migration agent “[Mr A]”, and these lead me to find that [the applicant] is to an overwhelming extent the source of the deficiencies in his evidence. In particular, I am concerned that [the applicant] dismissed the inconsistencies in his evidence as minor ones, when he said that “some minor details are incorrect.” The inconsistencies I raised with him were about very serious and central facts in his case: the use of a [weapon]; the practice of stalking him at his work place and following him home from work; the suggestion that the gang was being co-ordinated in some way by a leading politician. Generally, [the applicant] stood by his oral claims instead in preference to his written ones; essentially this meant that he was the one omitting the details, not “[Mr A]”, and yet, ultimately, he stood by his oral account of events rather than the written one. This leaves [the applicant]’s final account rather more threadbare than his original claims, and that account suggests much less persistent action, and less severe harm on the part of the gang over time. Overall, I do not accept that the discrepancies between the written and oral accounts in this case is merely a matter of some truthful details having been omitted.
Meanwhile, [the applicant]’s oral claims to me about the gang knocking his door down and not attracting neighbours lacked an air of reality. His apparent lack of interest in finding out if any of his Chinese neighbours witnessed what happened to him or had suffered any similar mistreatment also lacked an air of reality. These might not necessarily be weighty factors on their own, but I have given them some cumulative weight in this case.
I am of the view that the account of the gang in both versions is fabricated. Overall, I am not satisfied that [the applicant] has been truthful about his encounter with a Malay gang, or about the threats and demands they made, or about the harm they caused.
In view of these findings above, it is not necessary for me to weigh the issues that arose in the course [the applicant] commenting on and responding to the information I put to him under the protocols of s.424AA. However, [the applicant]’s responses to the s.424AA material go to his overall lack of reliability as a witness in this matter, leaving me with the impression that he and the other applicant, [fabricated] similar claims with the assistance of the same “agent” named “[Mr A]”.
As to whether [the applicant] faces a real chance of persecution for reason of his race outside of the problems he has claimed, I note that his claims only ever brought us back to the gang story, which I dismiss as unreliable. I give weight in this matter to the evident stability and prosperity enjoyed by [the applicant]’s family in finding that [the applicant] does not face a real chance of persecution in Malaysia for reasons of “race” or “religion”.
On the evidence before me, I am not satisfied that [the applicant] faces a real chance of any discrimination amounting even cumulatively to persecution in Malaysia in the reasonably foreseeable future for reasons of “race” or “religion” or any other factor cited in s.5J(1)(a) of the Act. His claimed fear of persecution is not well founded. SH is not a refugee.
For the reasons given above, I am not satisfied that Ms [B] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. 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 (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. “Cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Essentially, [the applicant]’s complementary protection claims rely on the same facts as his refugee claims. Those claims generally failed for lack of credibility and for not meeting the “real chance” test. In view of my findings of fact above, [the applicant]’s refugee claims can no more succeed as complementary protection claims.
Having considered all of the evidence in this matter I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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 2972

22 November 2017

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