1714536 (Refugee)
[2018] AATA 5662
•20 December 2018
1714536 (Refugee) [2018] AATA 5662 (20 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1714536
COUNTRY OF REFERENCE: Malaysia
MEMBER:Mireya Hyland
DATE:20 December 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 December 2018 at 7:21pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – social group – blackmailed by ganster group – threats to applicant and family – no threats since leaving Malaysia – lack of details to support claim – no real chance of persecution – credibility issues – inconsistent evidence – delay in applying for protection – decision affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-5LA, 36, 65, 91R, 438, 499Migration Regulations 1994, Schedule 2
CASESChan Yee Kin v MIEA (1989) 169 CLR 379Applicant M164/2002 v MIMIA [2006] FCAFC 16
Kopalapillai v MIMA (1998) 86 FCR 547.
MIAC v SZNSP (2010) 184 FCR 485
MIAC v SZRKT [2013] FCA 317
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
MZYWL v MIMA [2013] FCA 895
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SAAG v MIMIA [2002] FCA 547
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Sundararaj v MIMA (1999) FCA76
SZLUN v MIAC [2009] FMCA 1013
W148/00A v MIMA (2002) 185 ALR 703Any 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 27 June 2017 to refuse to grant the [applicant], a protection visa under s.65 of the Migration Act 1958 (the Act). [The applicant] applied for the visa on 7 April 2017. The delegate refused to grant the visa on the basis that [the applicant] did not claim to fear harm for one of the reasons in s.5J(1)(a) of the Act and he has effective protection in Malaysia so does not have a real risk of significant harm.
The issue in this case is whether [the applicant]’s claims are credible. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
An applicant for a protection visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act, that is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ or ‘complementary protection’ criteria, or is a member of the same family unit as that person and that person holds a protection visa. In the case of persons who have a nationality, the refugee criterion is that they are outside their country of 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). If a person does not meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if he or she is entitled to complementary protection. The complementary protection criterion requires that 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). Additional requirements relating to the criteria are extracted at the end of 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 (the Department) – PAM3 Refugee and humanitarian - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, Country Information Report – Malaysia dated 19 April 2018. To the extent that it pertains to this decision, the DFAT Country Information Report – Malaysia dated 19 April 2018 contains comparable information to that provided to [the applicant] for comment from DFAT’s Country Information Report – Malaysia dated 19 July 2016.
CONSIDERATION OF CLAIMS AND EVIDENCE
[The applicant] was born on [date]and is [age] years of age. Before coming to Australia he lived with his parents and younger sister in an apartment owned by his mother in [a suburb]near Kuala Lumpur. He has [several siblings]who have their own families and do not live in [their]apartment. [The applicant]’s father has been in [a role]for the last two years and before that he was [in another role]. His younger sister, who is [age] years old, works at[a shop]. His older sisters work as the manager of a [shop] and a sole trader selling[goods]. [The applicant]’s younger brother, who is [age] years old, works for a [company].
[The applicant] left the family home a week before coming to Australia and stayed with his younger brother and his family. However, he saw his parents at the airport before coming to Australia on [date] January 2017.
[The applicant] left school in [year], at[age], and worked for a year at a [shop] and at [another]company for one year. In about 2007 [the applicant] started working for [Company 1 in a certain role]. After five years he moved to [a different role]. He resigned from [Company 1] on 31 December 2016.
[The applicant] told the Tribunal that he travelled to [Country 1] in September 2016 with a friend, although the Tribunal notes that the stamp in his passport has him entering [a district] on 29 November 2016 and departing on 30 November 2016. He told the Tribunal that he went to [Country 2] in November 2016 with a different friend. The Tribunal again notes that his passport is stamped with an entry into [Country 2] on 28 December 2016 with a return to Malaysia on 29 December 2016.
[The applicant] told the Tribunal that he had been planning to come to Australia since 2015. He was granted a visa on 23 December 2016 and arrived in [Australian city 1] on [date] January 2017 as the holder of [a temporary]visa with three friends (including the friends he travelled with to [Country 1] and [Country 2]). [The applicant] told the Tribunal that his friends only came for a visit, but he came to Australia for protection because he was threatened.
The day after his arrival [the applicant] went to [Australian city 2] for two weeks to see a friend of his older sister’s and then he followed his friend to [Australian city 3] for three weeks. In [Australian city 2] he was supported by his sister’s friend and in [Australian city 3] his friend’s friend paid for food and transport. [The applicant] said he did not have any other expenses and did not work in [Australian city 2] or [Australian city 3]. [The applicant] then returned to [Australian city 1] where he lives in [a suburb]with two of the friends he arrived with and a third friend (one of the friends he arrived with has returned to Malaysia). He is now working in [an industry] for[a company].
Nationality
On the basis of the evidence before it the Tribunal finds that [the applicant] is a citizen of Malaysia, that Malaysia is his receiving country for the purposes of both the refugee and complementary protection criteria, and that he is outside his country of nationality for the purposes of s.5H(1)(a) of the Act. There is no evidence before the Tribunal to suggest that [the applicant] has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Claims and Evidence
[The applicant]’s claims are contained in his protection visa application form. He attended a hearing with the Tribunal on 6 October 2017 to give evidence and present arguments. Where relevant the evidence from that hearing appears in this decision. It does not necessarily appear in the order in which it was given. He was assisted at the hearing by an interpreter in the Malay and English languages.
[The applicant] provided to the Tribunal with a copy of a police report dated 17 November 2015 in Bahasa Malay and an English translation.
Protection Visa Application
[The applicant] told the Tribunal that he filled in his protection visa application form himself using Google Translate for the questions he did not understand. It states [the applicant] had to leave Malaysia because he was being blackmailed by a gangster group. He used to be in the group, but after he realised that it was a bad influence he decided to leave. He came to Australia to seek freedom and security in order to make ‘my life no interrupt: I am realised that I’m still young to involved with all these matter.’
In answer to the question ‘what do you think will happen to you if you return’, [the applicant] wrote ‘obviously, they are group of gangsters. They definitely going to kill me.’ He claimed that he had experienced harm, like the gang hunting him physically and mentally. He said seven months before the application (September 2016) the gang beat him up after he told them he was leaving the group. He claimed ‘mentally they kept on blackmailing me.’
[The applicant] claimed that he never sought help from the authorities because he knew there was no point since the gang is linked with the authorities. He tried to move to another state within Malaysia, but the gang has too many links and he claimed they will still find him. The gang sent other members to stalk him and get information. He also tried to move to the neighbouring country of [Country 2], but they still could find him because it is not far from Malaysia.
In answer to the question ‘do you think you will be harmed or mistreated if you return’ [the applicant] wrote ‘yes, because they are kept blackmailing me to kill me if I am back to my country.’ He does not think the authorities can protect him because he knows that the gangster group is linked with the authorities. He claimed he has already tried to move to another state in Malaysia, but the gangsters kept stalking and blackmailing him. He is totally helpless after these things happened to him so he decided to move to Australia.
Hearing
At the hearing, when asked why he came to Australia, [the applicant] said ‘I used to join gangster and many other things’ and that he joined the gangsters ‘for a long time’. He said when he decided to leave the gang they threatened to beat and kill him.
[The applicant] joined the gang in 2015 for four or five months. It did not have a name, it was just a group linked to other groups, like a Malay association where all the Malay people got together. The gang operates in [areas] around Kuala Lumpur, but they are on both the north and south sides of Malaysia. It has many people, around 200 in [the applicant]’s area. The gang extorts and beats people. They ask for money from people who run shops. If there is someone who starts a business the gang will ask for money for their protection. It has been around a long time although [the applicant] was not sure how long since he joined in 2015.The leader, [Mr A], runs the group.
Joining the Gang
A friend, [Mr B], who [the applicant] worked with at [Company 1], asked him to join the gang when they had known each other for about a year. [Mr B] was ‘mad and crazy’ because he had a good position in the gang. He claimed that he and [Mr B] were very close. When [Mr B] started at [Company 1] in 2014 they would always ‘do the sales thing together and be together, he always called me, and that’s how he asked me to join.’ [The applicant] said he just joined, but did not extort or beat people. However, he did know that they were involved in those activities.
The Tribunal asked why [the applicant] joined the gang if he was aware of their activities. He said if [Mr B] could get a lot of people under him he could ‘get a position, he will get a name, if he has a lot of followers he will get a promotion that’s why.’ The Tribunal pointed out that that explained why [Mr B] asked [the applicant] to join the gang, but not why he said yes. [The applicant] said he felt like if he joined the gang he would feel safe. However, when it asked if he felt in danger before joining the gang, he told the Tribunal ‘no, not really’. He said it was just like if he wants to go somewhere and another group wants to ‘disturb me’ at least he would have backup from the gang if he joined. When the Tribunal asked if this was something that had ever happened he was initially unresponsive, but when the Tribunal asked again, he said ‘never.’
When the Tribunal asked what he did with the gang [the applicant] said that they got together, he drank with them, and joined them in extorting money from people and beating people. He followed them to make the group bigger. When the Tribunal asked why they needed to be bigger if they were already 200, he said they did not all show up all the time. However, the Tribunal pointed out, they could show up and his being there did not seem to meaningfully increase the size of the group. He only said let’s say if they meet together just to extort money not all of them will come together to do that activity at that time.
Leaving the Gang
[The applicant] said he left the group in May or June 2015. When he tried to leave they threatened to beat him. They called him and ‘disturb my fiancé and her family.’ The Tribunal asked why a gang with 200 people in his area alone would care if he left. At first he just said they have links outside the area. He then explained they cared because he knew what they were doing. [The applicant] claimed not everyone knew what the gang was doing (although the Tribunal notes they were openly extorting and beating people) and they were afraid someone would inform the police. [The applicant] was threatened by the members of the gang, by [Mr A]’s people, but not [Mr B]. However, [Mr B] could not stop the threats because [Mr A] is above him.
[The applicant] informed [Mr B] he was leaving the gang and then he just avoid them. He left because he is still young and he did not want to be arrested by police and ‘be altogether with them.’ [The applicant] admitted that he had realised this before he joined, but joined anyway because, although no one had threatened him, if he joined he would feel safe. The Tribunal asked what reason he gave [Mr B] for leaving the gang, but he was unresponsive saying only that they did not let him and [Mr A] said [the applicant] knew what activities they were doing.
The Threatening Phone Calls
[The applicant] said he was threatened by phone more than 10 times, every three to four days. He said everywhere he went he felt like people were following him. He was not sure it was their people, but someone followed him.
The Tribunal asked [the applicant] when after he left the gang did he first receive threats. He said that even before he told them he wanted to leave the gang he received threats. They were not that bad at first, he would avoid the gang and they would call, but he would not pick up the phone. When asked why he received threats before he left the gang, confusingly he said this was because he told them he wanted to leave the gang, but they would not let him. They were afraid their activities would become known to the authorities.
[The applicant] clarified that when he was about to leave the gang they said do not do that because if the people running the gang found out they would threaten him. He said he first spoke to [Mr B] and it was [Mr B] who said do not leave the gang because the people running the gang will know and do something to him.
When [the applicant] left the gang they threatened him and his fiancé. The Tribunal asked when this first occurred, but he was unresponsive. When it asked again, he said after one month, being July 2015. The Tribunal expressed surprise that the threats had not started right away, but [the applicant] said they were looking for him. However, he also said they did not know his address, but they did have a phone number. He then changed his evidence, and said he meant that within the first month they were looking for him, not after a month. When the Tribunal asked why they did not just call, he said they did call and threaten him: he said ‘when I was about to leave within this month they always call me’ and ‘one day I received their call, they threatened me, they asked where are you.’
The Tribunal asked [the applicant] to clarify when these initial threats occurred and he said ‘first I told my friend I wanted to leave and he said don’t they will threaten you. When the people above found out they start calling me, start threatening me.’ The Tribunal asked again when the calls started, and [the applicant] said it was when [Mr B] told him not to leave the gang. And when the Tribunal asked again, he said ‘after a week I spoke to my friend.’ He then said he had forgotten because they called him many times, [Mr A]’s people called many times. The Tribunal confirmed that he left the gang in May or June, but he could not tell it how long after leaving the threats started, and he said ‘yes I’m not sure.’
[the applicant] does not know who of [Mr A]’s people called him because he followed [Mr B]. He knew the people above [Mr B], but not by name. He said ‘he called me, but he didn’t tell me the name.’ The caller asked where [the applicant] was and said ‘we stand by. I will cut you.’ [The applicant] said he then went and made a police report.
Reporting to the Police
Before [the applicant] made the police report, he said, the gang started threatening his fiancé and his family. The gang called and said they would cut him and kill him. They also threatened his family and his fiancé’s family so he made the police report for the safety of all. [The applicant] said he carried the police report with him for his safety in case they did anything, although he did not explain what this meant.
[The applicant] was not sure when he made the police report, but said there was a date on the report. As explanation for why he did not know the report was made on 17 November 2015, he said there were too many incidents of harm and that is why he did not know what to do so he came to Australia. He said there were threats to his family and his fiancé’s family and once they started threatening his family, his fiancé said he should report it to the police. [The applicant] said he went to the police station to make the report.
According to [the applicant] it was lunchtime when he made the report. When the Tribunal pointed out that according to the report it was made at 11:28 at night, [the applicant] only said he received the threat around lunchtime: ‘when I received the phone call it was lunchtime, and my mom overheard the conversation.’
The Tribunal suggested that [the applicant] provide it with a translation of the police report as evidence of what he was claiming he had reported to police.
Threats to [the applicant]’s Fiancé and Family
The Tribunal asked when the gang started to threaten his family, and [the applicant] said it was from the date of the police report. When the Tribunal asked again when that was, he said ‘I don’t know because I didn’t read the report.’ The Tribunal pointed out that if the threats to his family were so significant to him that they caused him to go to the police and report the gang, it was difficult to believe that he would not have some idea when they happened. [The applicant] said ‘in the beginning I read it, but it has been with me a long time; I didn’t read the report.’
[The applicant] said he was out with his fiancé and his mother. He stopped at the traffic light and received a call from a private number. The person on the phone said ‘where are you now, just standby, I will cut you.’ [The applicant] asked who was speaking and the caller just dropped the phone. When the Tribunal pointed out it did not sound like any threat was made to his family, [the applicant] then said before that the caller said if he did not find [the applicant] he would find his family.
The Tribunal asked when the gang started to threaten his fiancé and her family. [The applicant] claimed they started coming to his fiancé’s workplace. He said maybe they knew that he had been there. Her workplace is close to his home. They would wait outside and call her to come out. Then they would asked her where he was at that time. When the Tribunal asked what threats were made to his fiancé or her family, he said the gang were asking about him. Afterwards, when the Tribunal queried whether there had actually been threats to his fiancé or her family, he told the Tribunal they said ‘if we find him then later on we will take care of you.’ Again the Tribunal asked when she or her family were threatened, but [the applicant] was unresponsive saying that ‘the one’ he had told the Tribunal about was only the first time. They came again and said ‘if we don’t find him even your family will be involved.’ When the Tribunal persisted in trying to get a timeframe for the threats he said ‘I forgot, it’s a long time ago.’
The Beating
The Tribunal asked [the applicant] what happened after he reported the gang to police. Initially, he said ‘nothing much after I reported.’ He then said they looked for him, they caught him, and they beat him. He got beaten because it took a long time for them to look for him, more than seven months. He said seven months after leaving the gang they beat him, being December 2015 or January 2016. [The applicant] told the Tribunal he was beaten many times and that is why he left the country to go to [Country 1]. Before he made the report he just got phone calls. After the report ‘I have been touched by them and beat me, but I run away. I have bumped with that group many times. Sometimes they punch me. One time they punch me and kick me.’
Relocation
The Tribunal put to [the applicant] that from the time when he started receiving threats in as early as June or July 2015 until he left Malaysia on [date] January 2017 he lived in the same apartment, worked at the same job, and continued to meet his fiancé at her workplace. When it asked why he did not move to avoid the gang, he said he stayed with his family. If he moved it would involve a lot of money and he did not want to bother his family with what he had done.
[The applicant] also told the Tribunal that he tried to leave, he went to [Country 1]. The gang ‘also meet me over there.’ They knew where he was in [Country 1]. He said he just went to [Country 2] for a few days and they found him there too. He did not know how they found him in [Country 1] and [Country 2]. They have their people over there. When asked if there was any reason why he could not move elsewhere in Malaysia, he said he had tried [Country 2] and [Country 1] and the gang exists ‘in north side and south side’ of Malaysia.
The Police Report
During the hearing [the applicant] showed the Tribunal an untranslated police report in Bahasa Malay dated 17 November 2015 made at ‘2328PM’. It states that the person making the report is [the applicant], he works in ‘[a particular discipline]’, and was born on [date]. On 17 October 2017 [the applicant] emailed the Tribunal the translation of the complaint that he claimed at the hearing he made because his family, his fiancé, and his fiancé’s family were threatened by the gang:
ON 17/11/2015 AROUND 2304HRS WHEN IM STOPPING AT TRAFFIC LIGHT[LOCATION DELETED], I HAVE RECEIVED A CALL FROM A PRIVATE NUMBER, WHOM ASKED ME OF MY WHERE BUT I DID NOT ANSWER THE QUESTION INSTEAD I ASKED HIM QUESTIONS THAT, WHO ARE YOU , AND WHERE ARE YOU BUT MY QUESTION IS NOT ANSWERED, EVEN TOUGH ME WITH A STATEMENT THAT IS, HE SAID TO ME ‘YOU CAN HIDE OUT, I WILL CUT YOUR’. I SUSPECT HE IS THE SAME PERSON DISTURBS MY FIANCEE AND HER FAMILY. I COME TO THE POLICE STATION TO MAKE A COVERING REPORT BECAUSE IM AFRAID SOMETHING WOULD HAPPEN TO ME AND IM CONCERN ABOUT MY SAFETY IN THE FUTURE, THAT A FOR MY REPORT.
Findings and Reasons
The Tribunal has serious concerns about [the applicant]’s truthfulness. His evidence was vague, confused, and contradictory. He was unable to remember the timing or provide details of fundamental events. Many of the explanations for the inconsistencies were implausible or inconsistent themselves. [The applicant] was not a persuasive witness and for that reason the Tribunal is not satisfied that his claims are true.
Credibility
In determining whether [the applicant] is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of [the applicant]’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that, if it makes an adverse finding in relation to a material claim made by [the applicant], but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to ‘significant harm’. It remains for [the applicant] to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is [the applicant]’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
[4] Sun v MIBP [2016] FCAFC 52 at [69].
The Tribunal acknowledges that there are a small number of adverse points below that relate to more minor issues. The Tribunal does not generally consider that minor or trivial matters of fact should, on their own, undermine an applicant’s credibility. However, when all the problematic evidence set out below is considered cumulatively, the Tribunal has found some things that might otherwise have appeared to be inconsequential, together take on more significance.[5] Therefore, those less substantial, yet still relevant, inconsistencies have been given some weight. While each may, itself, be minor, collectively they show a picture of an applicant who has made small mistakes about a number of supposedly unimportant details because he is not telling a story from personal experience.
[5] MIAC v SZRKT [2013] FCA 317 at [78] and Sundararaj v MIMA (1999) FCA76; MIAC v SZNSP (2010) 184 FCR 485 per Katzmann J at [49]; SZLUN v MIAC [2009] FMCA 1013.
There are some claims, when viewed together, that appear implausible to the Tribunal. The Tribunal does not generally place weight on its mere opinion of whether a claim seems probable, particularly if there might be any other explanation regardless of how unlikely.[6] However, when the sheer number of issues below are viewed in conjunction with its concerns, the Tribunal has factored them into its decision about [the applicant]’s overall credibility, although not specifically into its reasoning for its finding on any particular claim.
The Report to Police
[6] W148/00A v MIMA (2002) 185 ALR 703 at 717 per Tamberlin and Nicholson JJ and MZYWL v MIMA [2013] FCA 895; Applicant M164/2002 v MIMIA [2006] FCAFC 16; SAAG v MIMIA [2002] FCA 547.
First, the Tribunal has particular concerns about [the applicant]’s claims about why he went to the police. [The applicant] told the Tribunal the gang ‘disturb my fiancé and her family’ so he made a police report. His claim that he reported the gang to the police is inconsistent with the application where he stated that he never sought help from police. In the application, he claims he did not go to the police because he knew there was no point since the gang is linked to the authorities. When this was put to him for comment, [the applicant] only said ‘correct.’ The Tribunal repeated its question about the inconsistency, and he said ‘I didn’t tell that because this one is for myself. This report I made because they started to involve my family and fiancé .’ That is, the report to police was in relation to his family and the application was not in relation to his family, but in relation to [the applicant] alone, therefore, he did not include the report to police, or, in fact, the threats to his family, in the application.
[The applicant] said the gang would be concerned if he went to the police and confirmed to the Tribunal that he did not go to police and tell them anything except that the gang threatened his family because, he said, ‘this is my fault so once they involved my family I reported.’ But the translation of the police report provided by [the applicant] in support of his claims is not consistent with this version of events. It is not about threats to [the applicant]’s family or his fiancé. The report refers only to the phone call [the applicant] received in his car and the fact that the caller threatened [the applicant]. It refers to its purpose being to protect [the applicant], not his family or his fiancé.
When [the applicant] described that phone call at the hearing, he was in the car with his fiancé and mother, and the person on the phone made threats against his family before making threats against [the applicant] himself. The police report does not include any reference to [the applicant]’s fiancé and mother being in the car or his family also being threatened during the phone call in the car. There is merely a passing reference to his belief that the caller also harassed his fiancé and her family. There are no details about that harassment, which one might expect if the police were intended to investigate or protect his family and fiancé from the caller or the gang. So not only does this undermine [the applicant]’s claim that he went to the police to protect his family, it also undermines his explanations for why those threats and the police visit are missing from the application.
Second, [the applicant] did not explain how, if the police are linked to the gang, making the report would make any difference or provide any protection for his family. When the Tribunal asked why he did not go to the police before November 2015, he asked ‘for what?’ The Tribunal repeated that he could have gone to police about the threats earlier, and he said ‘that’s the one, I reported it.’ It asked again why he had not reported the threats he claimed he had been receiving for months, and he then said ‘because they have strong links with people who have power. I start making the report because they start connecting with family members.’ He also said ‘I can save my family’ and ‘if I report for myself police will ask why I joined the gang.’
The Tribunal queried why the police did not asked why he joined the gang when he did finally report to them, but [the applicant] only said ‘my family asked me to go and report.’ This does not answer the question, particularly since the translation provided indicates the report was about [the applicant] himself and not about his family or fiancé. Nor does any of [the applicant]’s evidence explain the apparent inconsistency, that he could not go to police when he was being threatened because police are in league with the gang, but could go to police when his family was threatened with no apparent ramifications. If the police are connected to the gang, it is certainly difficult to see how he expected the police report would give him or his family any protection.
Third, the information about reporting to the police is contradictory. On the one hand, [the applicant] said that the police told him they would find the people threatening [the applicant] and his family. However, [the applicant] knew who was threatening him. When the Tribunal asked why he did not tell the police, he said the highest person is [Mr A], but he did not know who actually threatened him. He could not explain why he did not tell the police about [Mr A], who he said is the person who tells people what to do, or [Mr B]. He only said that if he told the police, the gang would threaten him and he did not want the gang to hurt his family. This explanation does not make sense if he was reporting the threats to protect his family from the gang.
Fourth, other aspects of [the applicant]’s claim that he reported the threats to police are also difficult to reconcile. He could not remember when he went to the police station and made the report, saying only that there was a date on the police report. If he was receiving threatening phone calls every three to four days for months, and they suddenly threatened his family which worried him so much he decided to finally go to the police, the Tribunal would expect that he would at least remember the month.
Fifth, [the applicant] was also inconsistent about the timing of the report to police. He said he reported the threats to police at lunchtime. When the Tribunal pointed out that according to the police report it was made at 11:28 at night, [the applicant] said he received the threat around lunchtime. However, first, the Tribunal has checked the recording of the hearing and it was clear that its question was about when he reported to the police. Second, in any event, he did not give any responsive explanation about why there was such a discrepancy between when he claimed the call was made and when the report to police was made, saying only that his mother overheard the telephone conversation.
The Tribunal finds that [the applicant]’s evidence about reporting to the police is sufficiently problematic to undermine his credibility generally.
The Gang
There are several inconsistencies in [the applicant]’s evidence about the gang and his interactions with them that trouble the Tribunal.
First, when the Tribunal initially asked why he came to Australia, [the applicant] said he joined the gangsters ‘for a long time’. However, he later told the Tribunal that he only joined the gang for four to five months, which is not a long time.
Second, when [the applicant] initially told the Tribunal about joining the gang he said he just joined, but did not extort or beat people. Later, he said he did join in all the group’s activities including beating and extorting people. When the Tribunal pointed out he had previously said he was not involved in those activities, he said ‘not before, but after I joined the group.’ The Tribunal has listened to the recording of the hearing and does not accept this explanation. [The applicant] did tell the Tribunal he just joined, but did not participate in the gang’s criminal activities.
Third, in his application [the applicant] states that after joining the gang he discovered it was a bad influence so he decided to leave. However, he told the Tribunal that he knew they were a bad influence when he joined and he did it anyway. When this was put to him he did not address the inconsistency, but said he thought when joining that there would be someone backing him up if anything happened later on.
Fourth, [the applicant] said he joined the gang so he would feel safe. But he also told the Tribunal he did not feel in danger before joining the group and nothing had every happened that would make him feel unsafe. He could not explain to the Tribunal why, therefore, he needed to join the gang to feel safe.
Fifth, [the applicant] said the gang was threatening him and his family because they were concerned he would tell the authorities about their criminal activities. But, at the same time he claimed the police are linked to the gang and, therefore, must know about their activities. When this was put to [the applicant] he was unresponsive, just saying it was because he did not want his fiancé and her family or his family to suffer because of his actions.
The Tribunal finds that, while some of these inconsistencies may appear minor, when looked at as a whole, and in conjunction with all the other difficult evidence, [the applicant] has not given a persuasive accounting of his time with the gang. While this may not be sufficient alone to bring into doubt whether he ever joined a gang, it certainly adds to the material undermining his credibility generally.
Harm to [the applicant]
The Tribunal did not find the evidence about the harm suffered by [the applicant] to be convincing. It was vague, contradictory, and often confused. Viewed together it significantly undermines [the applicant]’s overall credibility.
First, [the applicant]’s evidence about when he left the gang and his difficulties started was vague and changing. He said he was in the gang for four or five months, but he could not remember what month he left the group. When the Tribunal expressed surprise that [the applicant] could not remember at least the month when he and his fiancé started getting threats, he said it was a long time ago. Given that [the applicant] was so fearful of the threats that he had to leave Malaysia and seek protection in Australia, the Tribunal might expect that he would have a clearer idea of when the trouble with the gang started, that is, when he left the gang. It was only after the Tribunal expressed concern about this, that [the applicant] said it was in May or June 2015.
Second, the information about when [the applicant] was first threatened was confused and contradictory. He said he first received threats a month after leaving the gang, but they were looking for him. He also said that they called in the month before he left the gang, which did not explain why the gang failed to call for a month after he left while they looked for him despite obviously having the phone number. But, he then said that he had meant that the threats started within the first month after leaving the gang, not after the first month. [The applicant] then changed his evidence again, saying he had forgotten when the calls started because there were so many.
Third, [the applicant] said he received threats before he left the gang, but these claims were confused and appeared circular. He said these threats were because he said he was going to leave the gang. He would avoid the gang and they would call, but he would not answer. He also said when he left he would avoid the gang and they would call, but he would not answer. There does not appear to be anything that distinguishes the time [the applicant] claims is before he left the gang from the time he claims is after he left. This makes his evidence confusing and the claim hard to identify in the face of a complete lack of detail. He then said the threats were because he told the gang he was going to leave and they told him not to leave. Later, he said it was [Mr B] he spoke to and [Mr B] told him not to leave. If [the applicant] has interpreted these as the threats made before he left the gang that is inconsistent with his evidence that [Mr B] did not threaten him.
Fourth, initially [the applicant] told the Tribunal that he received threatening phone calls every three to four days. He later told the Tribunal that after he left the gang they called him every day threatening him. When this inconsistency was put to [the applicant] he said it was every two to three days, not every day.
Fifth, the Tribunal asked what happened after November 2015 when the phone calls stared to include threats to his family and fiancé. [The applicant] said they ‘just come to my workplace.’ When asked who came to his workplace, he changed his evidence and said he was in different places during the day so they could not trace him, and it was his fiancé’s workplace.
Sixth, in his application [the applicant] states he was beaten seven months before the application, being the end of 2016. However, he told the Tribunal they beat him seven months after he left the gang, which is the end of 2015. When this was put to him, [the applicant] said for the first time that he was beaten many time and that was why he left the country, including to [Country 1], which his passport shows was on 29 November 2016, not 2015. The Tribunal notes that this explanation begs the question why these numerous beatings were not in the application or raised with the Tribunal earlier.
Seventh, the claim that the gang found [the applicant] many times and beat him is inconsistent with his evidence that the gang could not find him and he only received phone calls. It is also inconsistent with his claims that they went to his fiancé workplace and threatened his family because they could not find him. When the Tribunal asked [the applicant] about this, he said ‘I’m telling from start until I reported.’ But he and the Tribunal were discussing what occurred after he reported the threats to police, and in any event this does not address the inconsistency.
Eighth, [the applicant] was inconsistent about his reasons for coming to Australia. Originally he told the Tribunal that his friends came to Australia for a holiday, but he came for protection. However, when discussing relocation [the applicant] told the Tribunal he came to Australia ‘just for a visit’, but after meeting his sister’s friends ‘that’s how I’m trying to live here now.’ This is not a trivial inconsistency. The Tribunal believes that if his fear of harm in Malaysia were genuine he would have been consistent when discussing when he decided to seek protection, while still in Malaysia or once he visited [Australian city 2], no matter the context.
Ninth, [the applicant] said when he decided to leave the gang they threatened to kill him. However, when he provided the Tribunal with details about the threats he had received from the gang he did not include in any of that detail anything about a threat to kill him. Only once the Tribunal had drawn to his attention a claim in his application that the gang would kill him if he returned to Malaysia, did he say, in that context, that the gang had threatened to kill him before.
Tenth, [the applicant] was vague evidence about the harm he feared in the future, saying he was not sure what would happen if he returned to Malaysia since it had been nine months and the gang do not have his phone number in Australia. In his application, he claimed that the gang will kill him if he goes back to Malaysia. At the hearing he only said that they will threaten him again and he will try to go to a different police station, the headquarters, ‘that’s the only thing.’ The Tribunal put its concern about this omission to [the applicant] who then changed his evidence and said ‘I’m scared because they have threatened me before that they’re going to kill me. Because I’m out of Malaysia for a long time that’s why I’m not sure what’s going to happen.’
Eleventh, the Tribunal raised with [the applicant] whether his claim that the gang wanted to kill him if he returned to Malaysia was mere speculation. He lived in the same house, went to the same employment, and visited his fiancé at her workplace which was known to the gang for the 18 months that he said the gang was threatening to kill him. But not only did they not kill him, he claimed he encountered them many times and was not killed. In response, [the applicant] said that he is just worried ‘if they are not satisfied with me’. This is an evasive, and inadequate, response that does not address the issue. Such ambiguous equivocation was characteristic of [the applicant]’s answers to matters raised by the Tribunal, about the harm he claimed to have suffered or feared he would suffer in future, when he did not appear to have any explanation.
Threats Against the Family and Fiancé
Aside from the Tribunal’s concerns that [the applicant]’s claims about threats to his family and fiancé did not appear in his application, which it has addressed above, he could not explain when the threats occurred or why they stopped. This evidence brings into doubt his credibility as a witness.
First, the Tribunal asked on several occasions when [the applicant]’s fiancé was threatened, but never got a satisfactory response. He told the Tribunal about the gang calling his fiancé out of work, but when it asked when this had occurred, he said this was only the first occurrence. Instead of a time, he said they came again and told his fiancé ‘if we don’t find him even your family will be involved.’ When the Tribunal persisted in trying to get a timeframe for the threats he said ‘I forgot, it’s a long time ago.’
Second, [the applicant]’s family is still living in the same apartment and has not had any problems. Although [the applicant] claimed he received threats, nothing ever happened to his family and nothing has happened to his family since he left Malaysia. [The applicant]’s fiancé still works as a nurse in the same workplace and while [the applicant] claims she received threats nothing ever happened, even though the gang knows where she works. [The applicant] also told the Tribunal that the gang has not made contact with his fiancé since he left Malaysia. This appears to indicate that there was, and is, no real chance the gang would have, or will, follow through on any threats which is inconsistent with the genuine fear [the applicant] claims he has and brings into doubt that the threats were, in fact, made.
Third, the fact that the gang is no longer threatening [the applicant]’s family or fiancé also indicates that the gang has no interest in [the applicant]. He told the Tribunal the gang threatened his family and fiancé to get him to go to them. But he could not explain to the Tribunal, if the gang was still after him, why they had not continued to approach his fiancé at work or threatened his family since he said the gang now knows where he lived. [The applicant] said this was because the gang are not able to contact him through the phone. But his family can contact him; he had spoken to them three days before the hearing. If the gang used them to bring him to them before, it is difficult to reconcile them not doing so now just because he is outside Malaysia. [The applicant] said that maybe they do not think there is any point because he is not there. The Tribunal does not accept this explanation. If the gang were interested in [the applicant] and had threatened his family and fiancé to find him before, and they know how to contact his family and fiancé directly, it would seem to naturally follow that they would threaten them again to get him to return knowing this would be passed on to him by his family and fiancé.
Locating [the applicant]
First, [the applicant] said the gang could not find him, so they threatened his fiancé at her workplace, because in his job he was free to go anywhere he wanted as long as he made a sale. He did tell his boss where he would be each day, but he could not explain then why [Mr B], who was above him at [Company 1], could not find out and tell the gang if they really wanted to find him. In response, [the applicant] said [Mr B] had ‘no position’ at [Company 1], which is inconsistent with his evidence that [Mr B] was above him in the company even though [Mr B] had only worked there a year and [the applicant] had been there four years. When this was put to [the applicant] he said [Mr B] had a position in the gang, not in his workplace. At [Company 1] they were the same. The Tribunal has listened to the recording of the hearing, and [the applicant] said [Mr B] was above him at [Company 1].
Second, [the applicant] claimed that the gang harassed his fiancé to find him. However, when the Tribunal asked how they knew where she works, he said ‘maybe they have seen me meet her.’ It is difficult to see why they would be unable to find [the applicant], or needed to threaten his fiancé, if they had seen him meeting his fiancé at her workplace. Also, [the applicant] claimed the gang did not know where he lived. It does not seem plausible that they would follow him to his fiancé’s workplace, but not follow him home, particularly since he claimed they were also threatening his family. When this was put to [the applicant], he said it was because ‘I go back home at night after work.’
Third, [the applicant] said the gang will be able to find his family even though they did not know where he lived because they will ask around and find out. It is difficult to fathom, if all they had to do was ask around, why the gang would not have just found where [the applicant] lived and waited for him rather than bringing him to them by threatening his family and fiancé.
Fourth, [the applicant] claimed that he tried to escape from the gang by going to [Country 1] and [Country 2], but they found him. [The applicant]’s passport indicates that he entered [Country 1] on 29 November 2016 and left on 30 November 2016. He entered [Country 2] on 28 December 2016 and left on 29 December 2016. It does not seem plausible that the gang could have found [the applicant] in another country in such a very short period of time. This is particularly the case since [the applicant] also claims that they were unable to find his mother’s apartment, which he returned to every night, over months, and that is within the gang’s own area of operation. When this was put to [the applicant] he was unresponsive and did not explain the discrepancy.
Fifth, in his application [the applicant] claimed that he tried to move to other states within Malaysia, but the gang had links in other states so they were able to find him. This is inconsistent with [the applicant]’s evidence to the Tribunal that he did not move to different states. When this was raised at the hearing [the applicant] said that it might have been the translation program he used. He meant he tried to go to other states, just for two to three days, not move there. Again the Tribunal pointed out it seemed unlikely the gang could find him elsewhere within Malaysia if they could not find him in his own town. It was then that he said for the first time that he thought the gang did know where he had lived.
When considered cumulatively, [the applicant]’s evidence on whether the gang could find him undermines his claim that they were looking for him, and the veracity of all his claims, because it brings into doubt his truthfulness as a witness generally.
Delay
First, the Tribunal raised with [the applicant] its concern that he had waited 18 months before coming to Australia. If he had left the gang and received threats from mid-2015, if they started to threaten his family at the end of 2015, if the gang was concerned that he went to the police in 2015, and he was beaten many times, the Tribunal would have thought that he would not have waited until January 2017 to come to Australia for protection. This delay undermines [the applicant]’s claim that he had a genuine fear of being harmed in Malaysia as claimed. [The applicant] responded that ‘I have been threatened, I have been beaten, but I have always been threatened, I cannot be patient anymore.’
Second, [the applicant] told the Tribunal that at the end of March 2017 he started to look for information on the internet about how to stay in Australia because he did not want to go back to Malaysia. The Tribunal pointed out that he had arrived in January and claimed to have left Malaysia because he was seeking protection, but had waited until the end of March, almost three months, to look into protection. [The applicant] said his [temporary] visa was only for three months and he did not want to stay illegally so that was why he asked for protection. He said he did not know about protection visas, although he had previously said he came to Australia to for protection. The Tribunal asked why he had not found out about protection visas in January instead of waiting until his visa had almost expired, but he only repeated that he did not know about protection visas. Since [the applicant] could have found out about protection visas in January instead of March it does not appear that it was particularly urgent, but rather a practical afterthought to remain lawful, for him to get protection. When this was raised with [the applicant], he said at the time he was looking by himself and did not get help from any ‘to protect this problem.’
His delay in leaving Malaysia and in seeking protection once he arrived in Australia seriously undermine [the applicant]’s credibility generally.
Given all the material set out above, the Tribunal finds that [the applicant] is not a truthful witness. When viewed cumulatively and as a whole his evidence so thoroughly lacks credibility that it is clear he has tried to mislead the Tribunal about his circumstances in Malaysia. The Tribunal finds the veracity of the information [the applicant] gave in support of his claims has been so weakened that the Tribunal cannot believe any of the material provided.
The Police Report
In light of the problematic evidence provided by [the applicant] in relation to the police report, and the Tribunal’s finding that he thoroughly lacks credibility and has misled it about his claims to fear harm from the gang, the Tribunal finds his credibility has been so weakened that the well has been poisoned beyond redemption and it cannot be satisfied with any corroborating evidence in the police report dated 17 November 2015. Therefore, the Tribunal gives that evidence no weight.
Findings of Fact on Relevant Matters
The Tribunal finds, based on its credibility finding above, that [the applicant] has fabricated his story. The Tribunal rejects all [the applicant]’s claims, including all his claims about joining a gang, leaving the gang, and any harm he claims flowed from his claims about the gang. The Tribunal does not accept that he, his family, his fiancé, or his fiancé’s family suffered any harm, including threats or beatings. Nor does it accept that he has a fear that a gang will harm him, his family, his fiancé, or her family in the future. The Tribunal rejects all the claims made by [the applicant] and finds that neither he nor anyone else associated with [the applicant] will suffer any harm in the foreseeable future if he returns to Malaysia.
Refugee Criteria
Under s.5J(1), a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 is taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA.
In determining whether an asylum seeker has a ‘well-founded fear of persecution’ s.5J(1)(a) contains a subjective requirement that an applicant, in fact, holds a fear of being persecuted. Further, s.5J(1)(b) imposes an objective standard that there be a real chance [the applicant] will be persecuted if returned to his or her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well-founded fear of persecution even if the possibility of the persecution occurring is well below 50 per cent.[7]
[7] Chan Yee Kin v MIEA (1989) 169 CLR 379.
[the applicant] does not have a genuine fear of being persecuted. On the basis of the evidence the Tribunal finds that he does not have the subjective fear of being harmed in the foreseeable future contemplated in s.5J(1)(a) of the Act.
For all the reasons above, and in light of its finding that [the applicant] is not a credible witness and has been untruthful, the Tribunal reject all the various claims made by him and finds that he does not have a real chance of any harm, let alone persecution, in the foreseeable future for any of the reasons put forward. [the applicant] does not meet the requirements in s.5J(1)(b).
[The applicant] does not have a well-founded fear of persecution as defined in s.5J of the Act. Therefore, he does not meet the meaning of ‘refugee’ set out in s.5H of the Act.
Complementary Protection Criteria
Section 36(2)(aa) requires an applicant to have a ‘real risk’ of suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8]
[8] MIAC v SZQRB [2013] FCAFC 33.
Therefore, for the reasons above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk he will suffer significant harm.
Conclusions
For the reasons given above, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mireya Hyland
MemberATTACHMENT - 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
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(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.
…
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