1710845 (Refugee)

1710845 (Refugee) [2023] AATA 2489 (15 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1710845

COUNTRY OF REFERENCE: Malaysia
MEMBER:Mary Sheargold
DATE:15 June 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 15 June 2023 at 11:03am
CATCHWORDS
REFUGEE – protection visa – Malaysia – no Convention nexus – inheriting family debts – drug addicted family members – physical assault – state protection – separation from immediate family – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
SZRSN v MIAC [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78
WZARI v MIMAC [2013] FCA 788
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 April 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas on 22 December 2016. According to Departmental records, they arrived in Australia on [date] December 2016, and the first named applicant has remained in Australia continuously since. The second named applicant left Australia on [date] March 2019. The first named applicant advised the Tribunal that his relationship with the second named applicant broke down at the end of 2017, and that he has not seen her since January 2018. The second named applicant has not engaged with the review process.
The first named applicant appeared before the Tribunal on 4 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 (Cth) (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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
A family is capable of constituting a particular social group for the purposes of s 5J(1) of the Act. However, this is subject to s 5K, which provides that, in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family, the Tribunal must disregard:
(a) 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) any fear of persecution, or any persecution, that the applicant or 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 (a) above had never existed.
Therefore, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s 5J(1)(a) (race, religion, nationality, membership of a particular social group, or political opinion) will not have a well-founded fear of being persecuted within the meaning of s 5J.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter his or her political beliefs, conceal his or her true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.
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.
‘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.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has considered these Guidelines along with the DFAT Country Information Report on Malaysia most recently revised and published on 29 June 2021.
CONSIDERATION OF Claims and evidence
Receiving country
[The applicant’s] and [Applicant 2’s] Malaysian nationality is not in issue. They provided certified copies of their passports issued by the Malaysian government at Ipoh, Malaysia, that were valid from [2015] to [2020]. The Department accepted their claimed identities and nationality set out in his passport, as does the Tribunal. The Tribunal finds that Malaysia is [the applicant’s] and [Applicant 2’s] receiving country for the purposes of assessing their protection claims.
Relevant background, claims and evidence
Is [Applicant 2] a member of [the applicant’s] family unit?
At the outset, the Tribunal notes there is no evidence before it to indicate that [Applicant 2] has made any claims in respect of protection herself. At the time the primary decision was made, she relied on being a member of [the applicant’s] family unit and in turn, relied on his protection claims. [Applicant 2] has not engaged with the review process and has, according to [the applicant], cut all ties with him. [The applicant] has stated that she does not respond to any attempts to communicate with him. The relationship broke down over 5 years ago.
[The applicant’s] evidence at the hearing is that when the couple settled in the [specified] area in Melbourne in late 2017, he worked in [industry 1]for a man he knew as “[Employer A]” while [Applicant 2] found work in a [business]. [Applicant 2] is significantly younger than [the applicant], and he stated that she had met someone in her workplace who was closer in age to her, and that they had begun a relationship. [The applicant] said that [Applicant 2] moved out of their apartment and into the apartment with her new boyfriend, located in close proximity to where [the applicant] remained living alone.
[The applicant] told the Tribunal that he has married another Malaysian national who is currently living in Australia holding a student visa where she is studying [a course]. The couple have one child, born in late [year], and on the date of his hearing, [the applicant] told the Tribunal his wife had let him know just several days earlier that she was pregnant again. The evidence before the Tribunal makes plain that [Applicant 2] is no longer a member of [the applicant’s] family unit.
The Tribunal has no evidence before it to indicate that [Applicant 2] has made her own claims for protection. According to Departmental records, she left Australia in 2019. As the Tribunal is satisfied that she is no longer a member of [the applicant’s] family unit, and as she has made no claims of her own for protection, and given she is no longer in Australia, the Tribunal finds she does not meet the criteria in either s.36(2)(a) or (aa) of the Act.
[The applicant’s] claims
[The applicant] is [an age] year old Malaysian national who has had a difficult childhood. His father was a drug addict, and shortly after the birth of his younger [sibling], his mother left the family unit and started her life over again. [The applicant’s] evidence at the hearing is that his mother remarried and had [more] children, and she has not seen or spoken to [the applicant] or his [sibling] for as long as he can remember.
In his protection visa application form, [the applicant] states that his father passed away when he was [age] years old, after his grandfather sent him to [Country 1] for ‘detoxification,’ and that he was ‘throw[n]’ to different relatives to take care of him from the time he was [age] until he was [age]. [The applicant] stated that his relatives were disgusted by him and believed he would turn out like his father. [The applicant] stated that his father had stolen or robbed money from his family to buy drugs, and that once [the applicant] had grown up and left to live on his own, earning his own income, his relatives tried to force him to return the money his father had taken from them.
[The applicant] stated in his application that the last time he had seen his relatives was during Chinese New Year in 2016, and that he found his cousin smoking and taking drugs. He claimed his aunt and uncle accused him of selling his cousin the drugs and that they threatened to report him to the police. He believes that if he returns to Malaysia, his aunt and uncle will file a police report against him and force him to return the money his father “borrowed”.
In response to the question, “did you experience harm in [Malaysia]?”, [the applicant] answered that he was always scolded, laughed at, and “disgusted to me” by his relatives. He claims that he was treated like a maid, that his cousins bullied and hit him, and that he was forced to remain silent about the abuse because he had no parents and no home after his grandfather passed away. He stated he did not seek help in Malaysia regarding the harm he suffered because he had no relatives who could help him, nor did he try to relocate within Malaysia because he did not have parents, his relatives were disgusted by him, and he had no place to go because no one would fight for him or protect him. He said he believes he will be harmed or mistreated if he returns to Malaysia because he cannot have a new life, and he has never been happy since he was [very young]. [The applicant] claims the authorities cannot protect him because his problems are family problems. He claimed he could not relocate within Malaysia because he tried for many years but felt really disappointed.
The delegate concluded that [the applicant’s] claims were vague and unsubstantiated, and was not satisfied that he had demonstrated he could meet the criterion in s.36(2)(a) because he made no claims about fearing persecution on the basis of his race, religion, nationality, political opinion, or membership of a particular social group. The delegate carefully examined the justice system in Malaysia and whether [the applicant] may have access to services to protect him from any further threats or harm from his relatives and was satisfied that the country information available supported access to justice for a person in [the applicant’s] circumstances.

At the hearing, [the applicant] elaborated on the written statements in his visa application form. He was understandably highly emotional discussing his father’s life experiences as a drug addict and the massive impact that drug addiction had on his own life. [The applicant] claimed he had been deceived by his family regarding his father’s whereabouts and even his life; ultimately, he was led to believe that his father did return to Malaysia alive after his drug rehabilitation program, but that he returned to drug use, and that he passed away in 2005, not in [earlier year] as indicated in [the applicant’s] application form. [The applicant] attended his father’s funeral and was harassed by his relatives again. [The applicant] claims his [sibling] did not attend the funeral. [The applicant] and his [sibling] were separated after their mother abandoned them, and they did not develop and close bond or relationship. [The applicant] told the Tribunal that his [sibling] had turned out to be like his father, and any time [the sibling] became aware that [the applicant] had money, he would ask [the applicant] to give money to him as well. It is for this reason that [the applicant] claims to have cut ties with his [sibling] altogether. He told the Tribunal he has blocked his [sibling’s] phone number, and he cannot remember the last time they spoke.
[The applicant] told the Tribunal that he had been a good student at school, but that his relatives had not supported his education and so he had to leave school when he was [age]. He spent [number] years working in [specified occupations] around Perak state in Malaysia. His evidence is that while he moved from Ipoh and travelled around different towns and villages, he never left Perak.
[The applicant] said he met [Applicant 2] when they both worked in a [company] where [the applicant] did [specified roles] and [Applicant 2] was an administrative clerk. He stated they formulated a plan to come to Australia together because they had heard a lot about how good life was in Melbounre. [The applicant’s] evidence is that when they arrived in Australia, they met some Chinese Malaysian people in a [business], and told them they were looking for work, and they were advised to follow those people to a farm in [Town 1]. [The applicant] said that after a couple of months working on the farm, he returned to Melbourne looking for work in [industry 1], and was hired by a subcontractor from [Country 1], known to him as “[Employer A]”.
[The applicant] stated that he has “at last” got a very good life here in Australia. He has taken his good luck in meeting his wife and starting his family as a sign that he was not born into “bad everything” and now he knows that good things are coming to him. [The applicant] appeared deeply emotionally affected by the quality of life he experienced in Malaysia, with a drug addicted father, a mother who abandoned him, an extended family who treated him as second rate compared with their own children, and who have attempted to blackmail him into repaying his father’s debts by threatening to make false police reports about him selling illicit drugs to his cousin.
The Tribunal accepts [the applicant’s] claims regarding his difficult upbringing and accepts his claim that his aunts and uncles subjected him to derogatory treatment when he was a child. The Tribunal finds it is likely that [the applicant’s] relatives have harassed him to repay debts his father owed to them once he had moved away to live and work on his own. However, the Tribunal notes there is no evidence available to suggest that any harassment has continued beyond 2016, and there is no evidence to demonstrate a history of persecution or harm to [the applicant] I Malaysia during his adult life.
Well-founded fear of persecution
The Tribunal notes at the outset that [the applicant] does not make any claims in respect of fear of persecution in her home country on the basis of his race, religion, nationality, political opinion, or membership of a particular social group.
In the absence of any claims or evidence to demonstrate that [the applicant] faces a real chance of persecution if he returns to Malaysia on the basis of his race, religion, nationality, political opinion, or membership of a particular social group, the Tribunal finds he does not meet the definition of ‘refugee’ set out in s.5H of the Act, nor is the criterion in s.36(2)(a) of the Act met.
Real risk of significant harm
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). To do this, the Tribunal must determine whether, as a necessary and foreseeable consequence of being removed from Australia to his receiving country, Malaysia, there is a real risk that [the applicant] will suffer significant harm. Based on the Tribunal’s findings regarding [the applicant’s] claims about his past experiences in Malaysia and the reasons he fears returning, there are 2 aspects to this consideration: first, the potential risk for significant harm to be inflicted against [the applicant] by his extended family members in Malaysia, and second, the potential for psychological harm should [the applicant] be separated from his wife and child who temporarily reside in Australia while his wife completes her studies.
As noted above, the Tribunal accepts [the applicant’s] account of the repeated and sustained acts of emotional and physical abuse inflicted on him by his father’s family members that occurred throughout his childhood and adolescence. [The applicant] claims that his father’s siblings, their spouses, and their children have tried to destroy his life for as long as he can remember. He has severed ties with his [sibling] because his [sibling] harasses him for financial support. [The applicant] told the Tribunal that he has been subjected to numerous threats by his uncles and aunts to report him to police for allegedly selling [a drug] to his cousin. He is clearly very distressed by this accusation, that the Tribunal accepts is false and malicious, given the very serious impact his father’s drug addiction had on his own life.
[The applicant] clearly feels much more settled and much safer in Australia, especially now that he has identified a purpose in life, being to provide for his wife and child(ren). The Tribunal appreciates that it would be distressing for [the applicant] to return to Malaysia.
However, as set out above, the definition of ‘significant harm’ is exhaustive, and the threshold is high. Unfortunately, there is insufficient evidence before the Tribunal to allow a finding that [the applicant] faces a real risk of significant harm from his extended family members if he is returned to Malaysia. While the Tribunal accepts the evidence that it is customary in Chinese families for the eldest son to inherit his father’s debts, by [the applicant’s] own evidence, he has had no contact with any member of his family for at least 10 years, well before he left Malaysia to come to Australia. The Tribunal understands that there is a possibility of [the applicant] being found by his family members if he is returned to Malaysia, and the Tribunal also accepts [the applicant’s] account of previous wrongdoings by his extended family members towards him. However, this evidence does not support a finding that [the applicant’s] family poses a real risk of significant harm towards him in the foreseeable future.
In reaching this conclusion, the Tribunal has had recourse to DFAT’s latest country information report for Malaysia, and notes that Malaysia’s law enforcement agencies and its judiciary are readily willing and able to prosecute offenders, and that most cases in Malaysian civil courts comply with the rule of law and legal procedure. The Royal Malaysia Police operates over 800 police stations across Malaysia. There is no evidence to suggest that [the applicant] would face any obstacle seeking assistance from the RMP in the event that any family member did approach him and make any threat towards him. Further, based on the country information available, there is no reason to believe that the RMP would mistreat [the applicant] in the event that his aunt and uncle filed a historical report regarding his alleged supply of [drug] to their son in 2016.
Given his history of systemic abuse at the hands of his father’s relatives, the Tribunal understands [the applicant’s] repugnance towards them and his lack of willingness to make good on his father’s alleged debts to them. However, [the applicant] is a grown man with an established career and a family to support. He is no longer the vulnerable young boy he once was in the eyes of his father’s family.
While the Tribunal accepts his claims regarding historical abuse inflicted on him when he was a child, there is no evidence to suggest the possibility, let alone probability, of any form of significant harm being inflicted towards him should he return to Malaysia and be discovered by his extended family members. Further supporting this finding is the fact that, if [the applicant’s] family returned to Malaysia, his evidence is that they would likely live near his wife’s family in the peninsula states, and that they would not return to Ipoh or Kuala Lumpur.
The second consideration is whether, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, [the applicant] would suffer significant harm on the basis of being separated from his wife and child, who hold temporary residency visas permitting his wife to study in Australia. The Tribunal has considered the impact on [the applicant] of potentially being removed from Australia without them.
As noted throughout this decision, significant harm is exhaustively defined in s.36(2A) of the Act: 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. Included in these definitions is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
The Tribunal does not accept that there is any intention to cause [the applicant] harm by separating him from his pregnant wife and his child. While the fact that [the applicant] being separated from his wife and child may cause him some hardship and distress, the Tribunal does not consider that it is there is any intention in the act of separating [the applicant] from them to cause any significant harm to him. In making this finding, the Tribunal recognises that [the applicant’s] wife and child are both Malaysian citizens who could, if necessary, return to their home country.
The Tribunal also does not accept that the actual act of removal of [the applicant] from Australia falls within the scope of s.36(2)(aa), as it would appear from the words of s.36(2)(aa) and s.5(1) that these provisions do not encompass harm of this nature.
In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[1] The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[2] Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.[3]
[1]     SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji.
[2]     SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[62].
[3]     SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [63].
Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.[4]
[4] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [64].
Lastly, the Court in SZRSN v MIAC had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.[5]
[5] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [65].
Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A). As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of [the applicant] being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.
Having regard to all the circumstances and findings above, the Tribunal finds that [the applicant] does not have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk he will suffer significant harm if he returns there. Therefore, he does not meet the criterion in s.36(2)(aa) of the Act.
Member of same family unit
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).
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Mary Sheargold
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.
…

[2023] AATA 2489

15 June 2023

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