1712411 (Refugee)

1712411 (Refugee) [2019] AATA 6509 (23 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712411
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Alison Murphy
DATE:23 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 23 September 2019 at 9:29am

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – fear of loan sharks – default on mortgage payments – bankruptcy – fear of killing – effective protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 9 March 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia owes 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.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - Complementary Protection Guidelines and 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 issue in this case is whether the applicant meets any of the criterion set out in s.36(2)(a), s.36(2)(aa), 36(2)(b) and 36(2)(c) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background to the review
The applicant is [an age] year old male from Kedah, Malaysia. He first arrived in Australia [in] February 2017 as the holder of a [temporary] visa valid until 28 May 2017. He lodged an application for protection on 9 March 2017.
The applicant states in his visa application that he left Malaysia because he was running away from a debt collector and loan shark, due to financial hardship. He states he made rough decisions which put his life in danger and he owes the loan sharks $[amount]. He states his salary is not enough to support himself and his family and his father works as a labourer which is why the applicant has to help his father support the family. He states that if he returns to Malaysia, the debt collectors and loan sharks will find him and harm him because he was run away from them and did not pay the money back.
On 12 June 2017, a delegate of the Minister decided to refuse to grant the applicant a protection visa, not being satisfied that he was a person to whom Australia owed protection obligations. In that decision the delegate noted the applicant had not claimed to fear harm in Malaysia because of his race, religion, nationality, political opinion or as a member of a particular social group. The delegate was not satisfied there was a real chance the applicant would be persecuted for one or more of the reasons set out in s.5J(1)(a) of the Act and concluded he was not a refugee for the purposes of s.5H.
In relation to the complementary protection criterion, the delegate considered country information which indicated that the Malaysian authorities were reasonably effective in combating illegal money lending. The delegate concluded that the applicant would receive effective protection from the Royal Malaysian Police and judiciary against any threats he faced from illegal money lenders, gangs or other persons in Malaysia. The delegate was not satisfied that there were substantial grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia.
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility[1]. However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant[2].
Hearings
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The applicant appeared before an officer authorised to take evidence pursuant to the powers contained in s.428 of the Act on 25 June 2019 (the authorised officer). At that time the applicant elaborated on his claims and his evidence was recorded. I have had regard to the evidence given to the authorised officer in reaching my decision.
The applicant attended a further hearing before me on 20 August 2019 (the Tribunal hearing).
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport. He has at all times maintained that he is a citizen of Malaysia. The Tribunal finds he is a Malaysian citizen and has assessed the applicant’s claims against Malaysia as his country of nationality.
Assessment of claims
Business failure and bank loans
At the Tribunal hearing and before the authorised officer, the applicant gave evidence he worked as [an employee] for [a named employer] in Malaysia until 2010, when he got involved in a multi-level marketing business (MLM business). He resigned his job in May 2010 to focus on the MLM business, but within 3 months the government cracked down on this kind of business model because it cheated people.
He says this was because although the business promoted a range of [products], in reality this was just a smokescreen and the business model relied on members recruiting other people to invest money in the business. The persons who recruited a member would get a cut of the funds the new member invested in the business.
The applicant stated he contributed funds in three steps in 2010 – firstly, the sum of [amount]RM, then [amount]RM and finally [large amount]RM. He took a personal loan of [loan amount]RM from [a bank] to join the MLM business. He was unable to borrow the whole [large amount]RM because he had earlier purchased a house with [a] loan from the bank, costing [amount]RM.
The applicant gave evidence that within 3 months of his investment in the MLM business, the Malaysian government cracked down on this kind of business and the MLM business collapsed, leaving him with no money or savings. He then started a small business in his parent’s shop selling [product], but a fly-over was built over the shop cutting it off from his customers and reducing his income from [amount]RM each day to [amount]RM each day.
After a year of being unable to pay his loans, the bank sent a letter asking him to clear his outstanding payments. They later wrote advising him they were repossessing his house in order to auction it off. The applicant gave evidence that his house was sold by the bank in 2015 and he did not receive any funds from the sale. He stated that at the time of the second Tribunal hearing on 20 August 2019, he continued to owe the bank [loan amount]RM for his personal loan. The applicant has given detailed and consistent evidence about the above events and I accept they occurred as claimed.
Loan from loan shark
The applicant stated to the authorised officer that when the bank first asked him to clear his outstanding payments, he didn’t know how to pay off his debt so he took a loan from a loan shark called [Mr A]. He first borrowed [amount] RM to settle the outstanding payments. Of the [amount] RM he only got [amount] RM with the loan sharks charging 10% interest and also taking a deposit. He was then charged him 5% per month. [Mr A] and his associates came to his shop every day to collect, sometimes on motorbikes and sometimes in cars.
He gave evidence they would say last time he didn’t pay so they added 5%. The applicant would fight with them and the amount went up. The bank was calling for payments on his personal loan of [amount] RM personal loan. He could not pay for his house, his personal loan and his loan from the loan sharks. He sold his house before coming to Australia but didn’t get anything for it and moved to a rental house near his shop.
He gave evidence the loan sharks were always searching for him. They knew his motorcycle, his car, his house and his shop. He tried to move one hour away near [a specified region], but only stayed for two days. They continued to come and search for him in his house and disturbed and threatened his family and his mother called him crying and asking him to come back.
If he returns to Malaysia, the loan sharks will find him and beat him to pay. In one month he must pay [amount range] RM, but if he goes back to Malaysia he can only earn about [amount] RM. The loan sharks have poured paint on his house and broke the door of his shop. Now he sends money to his mother who pays the loan sharks. He sends [amount] per week.
However the Tribunal has significant concerns about the credibility of the applicant’s claims to have borrowed money from loan sharks or gangsters as claimed. As discussed with the applicant at hearing, this is because his evidence of those events has differed significantly over the course of the review:
·Before the authorised officer, the applicant stated he borrowed [amount] ringgit to pay his outstanding debts, but after the loan shark took his percentage he only received [amount]ringgit. However at the hearing before me the applicant gave evidence that he borrowed [larger amount] ringgit. When the apparent inconsistency was put to him, he stated that the whole amount borrowed was [the larger amount] ringgit but after the percentage withheld by the loan shark he only received [amount] ringgit. I note that evidence to be inconsistent with each of his earlier statements as to the amount borrowed;
·Before the authorised officer the applicant gave evidence that the loan sharks broke the door of his shop as part of their harassment of him. However at the hearing before me he stated that they never damaged his shop because they knew that it was owned by someone else. When the apparent inconsistency was put to him, he stated that they didn’t break the door but just damaged the lock to let him know they were there;
·Before the authorised officer the applicant gave evidence that the loan sharks came and threatened his family at their home and poured paint on his house. He stated he made the decision to come to Australia about a month before travelling in February 2017 because the loan sharks were always searching for him and knew his house, his shop, his car and his motorbike. He also said that before coming to Australia he tried to move one hour away from his home to an area near the [specified region], but only stayed 2 days because the gangsters were always coming to his house and threatening his family. However at the hearing before me he stated that the loan sharks only knew the location of the house he purchased using the bank loan (which he also stated was sold in 2015), and they didn’t know that it had been repossessed and that other people were living there. He stated that the loan sharks never discovered the location of his rented premises where he lived after his house was repossessed and sold by the bank. When the apparent inconsistency was put to him he stated that the loan sharks only went to the house that was repossessed by the bank. This explanation is inconsistent with his evidence to the authorised officer that they were searching from his in his house one month before he came to Australia in February 2017, which is significantly later than the time he told me his house was repossessed by the bank and sold. It is also inconsistent with his evidence to the authorised officer that gangsters came to his house and threatened his family when he relocated to an area near the [specified region] for two days just before travelling to Australia;
·Before the authorised officer the applicant gave evidence that he was sending $[amount] or [amount] ringgit per week to his mother who was using it to pay the loan shark. At the hearing before me he stated he was sending [larger amount] ringgit per month to his mother, of which she was paying the loan shark [amount] ringgit per month. When the apparent inconsistency was put to him he stated that he may have made an error at the first hearing and given the amount in Australian dollars. However having gone back and listened to the recording of his evidence to the authorised officer I am satisfied the applicant gave the amount in both Malaysian ringgit and Australian dollars.
Further the applicant was unable to give any meaningful detail about the person he claimed to have borrowed money from or the basis for his claim that [Mr A] was part of a large criminal network who would find him and pursue him throughout Malaysia. Despite his claim that [Mr A] could locate him throughout Malaysia, he gave evidence that [Mr A] had not located the rental premises he had rented for his family near his shop in his home town [named] after his own house was repossessed by the bank in 2015. As noted above, this is inconsistent with his evidence to the authorised officer.
In assessing the applicant’s claims about events in Malaysia, I have had regard to his wife’s evidence to the authorised officer and at the hearing before me about the applicant’s fear of harm in Malaysia. However as acknowledged by the applicant and his wife at the hearing before me, the applicant’s wife has no direct knowledge of those events and knows only what she has been told by the applicant. For that reason I give her evidence as to the applicant’s experiences in Malaysia before she met him little weight.
For the above reasons the Tribunal does not accept that the applicant has borrowed money from loan sharks as claimed. It follows that the Tribunal does not accept there to be a real chance the applicant will be harmed by loan sharks or gangsters if he returns to Malaysia.
While the Tribunal has accepted that the applicant has an unpaid personal loan from a bank in Malaysia, the applicant does not suggest and the Tribunal does not accept that the bank would seek to harm the applicant in order to recover this loan. The Tribunal accepts however that the bank may seek to recover its money from the applicant through the usual civil debt recovery methods, including the potential use of bankruptcy laws. I consider this to be consistent the applicant’s evidence that the bank took possession of his house and sold it in 2015 after he defaulted on his mortgage payments.
As discussed with the applicant at hearing, the Tribunal considers that Malaysia’s bankruptcy laws constitute laws of general application, applicable to all citizens of Malaysia. Laws of general application do not generally constitute persecution, as they lack the necessary discriminatory element. At hearing the applicant agreed that the harm he feared from his financial situation did not arise for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
Nor do I accept that the act or effects of bankruptcy constitute serious harm. In making this assessment I have considered the non-exclusive list of incidents that may constitute serious harm contained in s.5J(5). It is not suggested that the act of bankruptcy or the consequences that may follow constitute a threat to the applicant’s life or liberty, significant physical harassment or mistreatment and I find that they do not.
While I accept any potential bankruptcy will cause the applicant economic hardship, I do not accept such hardship would threaten his capacity to subsist or deny him the capacity to earn a livelihood of any kind, nor do I accept he will be unable to support his family on his Malaysian salary. In making this assessment I note that the applicant’s own evidence is that if he returns to Malaysia, he will be able to obtain employment but that employment would not match his earning capacity in Australia. While I accept that his earning capacity is greater in Australia, I find the applicant will be able to obtain employment in Malaysia enabling him to subsist. In making that assessment I note the applicant’s evidence that he was employed by [an employer] and also ran a small [business] while living in Malaysia.

For these reasons I find the applicant does not have a well-founded fear of persecution for any reason relating to his outstanding bank loan or possible future bankruptcy. As I have not accepted the applicant owes a debt to load sharks, it follows that I do not accept that the applicant has a well-founded fear of persecution for any reason relating to his debts if he returns to Malaysia, now or in the reasonably foreseeable future.
The applicant’s marriage
The applicant gave evidence he has married a [Country 1] national since arriving in Australia. A marriage certificate submitted after the hearing indicates that marriage took place [in] June 2019. His wife attended the Tribunal hearings and gave evidence she has converted to Islam and cannot safely return to [Country 1]. She has lodged her own application for a protection visa and is awaiting a decision in relation to that visa application from the Department. She has a young son by her former husband, who is also a Malaysian national. Before the authorised officer she gave evidence that her son’s father may now be in [another country] and was not seeking custody of their child. At the hearing before me she confirmed to me she lived in Malaysia for about a year with her former husband before coming to Australia, but she did not meet the applicant until after her arrival in Australia. She told me that she has no direct knowledge of the events that occurred to the applicant in Malaysia, although the applicant has told her he had trouble with a loan shark in Malaysia and it is dangerous for them to return to that country. She stated that to the best of her knowledge, she has no current right to enter or reside in Malaysia.
The applicant states that he and his wife have applied for Malaysian citizenship for his wife’s son through the Malaysian Embassy. He states that because he didn’t apply during his son’s first year, it may take three or four years to come through. I note that the applicant’s wife’s son would appear to have inherited Malaysian citizenship through his biological father and I accept the applicant’s evidence in that regard.
I accept the applicant has married a [Country 1] national since arriving in Australia and assumed responsibility for her child. I accept he and his wife have sought Malaysian citizenship for her son but this has not yet been processed. The protection claims of the applicant’s wife and son are still being assessed by the Department and are not before me. The applicant does not suggest that any person will seek to harm him in Malaysia because of his marriage to his wife. On the evidence before me I do not accept there to be a real chance the applicant will face harm for any reason relating to his marriage if he returns to Malaysia, now or in the foreseeable future.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Malaysia and the Tribunal therefore finds that Malaysia is the ‘receiving country’ for the purposes of s.5(1).
For the reasons set out above, the Tribunal has not accepted that the applicant owes debts to loan sharks or gangsters as claimed. Nor has the Tribunal accepted there to be a real chance the applicant will face harm in Malaysia for reason of his marriage. In MIAC v SZQRB, the Full Federal Court held that 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.[3] For the same reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis.
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
While the Tribunal has accepted that the applicant has an unpaid personal loan from a bank in Malaysia as a result of which he may be subjected to bankruptcy proceedings, it does not accept that any sanctions applied to the applicant as a result of bankruptcy proceedings constitute ‘significant harm’, as that term is defined in s.36(2) of the Act (attached). In particular the Tribunal does not accept there to be a real risk the applicant will be subjected to the death penalty or torture, nor that he will be arbitrarily deprived of his life for any reason relating to his potential bankruptcy. In considering whether there is a real risk that the applicant will be subjected to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ for any reason arising out of potential bankruptcy proceedings, the Tribunal finds that any bankruptcy proceedings would arise from lawful sanctions imposed by the Malaysian authorities. There is no evidence before the Tribunal that would indicate such lawful sanctions are inconsistent with the International Covenant on Civil and Political Rights (ICCPR) and the Tribunal finds they are not.
For these reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia.
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. In that regard I note his wife’s evidence that she has made an application for a protection visa which has not yet been assessed by the Department. 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.
Alison Murphy
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.
…

[2019] AATA 6509

23 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice