1714968 (Refugee)

1714968 (Refugee) [2022] AATA 1194 (25 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714968
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:R. Skaros
DATE:25 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 March 2022 at 10:24am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm by money lender – claim contrived for the purposes of applying for protection – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
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 and Border Protection on 21 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia applied for the visa on 31 March 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant was scheduled to appeared before the Tribunal by video on 7 March 2022 to give evidence and present arguments. The applicant had some difficulty connecting to the hearing by video but agreed to participate in the hearing by audio. Accordingly, the Tribunal proceeded with the hearing by teleconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant confirmed that she could hear me and the interpreter clearly.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa) (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, 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 the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
According to information in the protection visa application, the applicant is a [age]-year-old national of Malaysia. She was born in Sabah, Malaysia and is of Sino Kadazan ethnicity. Her religion is Roman Catholic (Christian). She speaks, reads and writes Malay and English. She was married in 1988 and is separated from her husband. Her parents reside in Sabah, Malaysia. She has four children: three daughters and a son, who reside in [Town 1], Malaysia. She contacts her relatives twice a week by mobile.
She departed Malaysia (Kuala Lumpur international airport) [in] February 2017 using her Malaysian passport and arrived at Melbourne Airport on the same day. She travelled to Australia on an Electronic Travel Authority (Subclass 601) visa. In Malaysia she resided at two different addresses: Sabah and [Town 1]. Her address in Australia was in [Town 2], Victoria.
She completed high school in Sabah, Malaysia in [year]. She worked in [Occupation 1] from 2000 until 2017 at [employer] in [Town 1], Malaysia.
In relation to her claims for protection, the applicant stated that she does not want to return to Malaysia because of financial problems. She claimed to have borrowed money from a money lender which she could not repay on time and that the money lender has threatened to harm her. She claimed to have left Malaysia out of fear that the money lender will harm her. She claimed that if she returns to Malaysia, the money lender will go to her house or work to harm her because she had failed to repay her debts.
In response to the questions about whether she had experienced harm in Malaysia, the applicant stated that they came to her house and work asking for the money that she had borrowed. She claimed that they threatened her if she does not pay and punched her face until she was bleeding. She claimed that she did not seek assistance after the harm because she was scared, and they threatened her not to inform the authorities and so she decided to keep silent. The applicant claimed that she did not move to another part of Malaysia because they have a big company in Malaysia and, no matter where she goes, they will find her. The applicant claimed that if she returns to Malaysia the money lender will disturb and harm her, and may harass her, because she will not be able to repay the debt. The applicant claimed that the authorities in Malaysia would not protect her if she returns because the money lender is ‘clever to changes the real situation’.
The application form was signed and witnessed on 27 March 2017 in [Town 2]. A certified copy of the bio-data page from the applicant’s Malaysian passport (issued [in] 2015) was provided with the application.
In refusing to grant the protection visa, the delegate noted that the applicant had not provided any proof to substantiate her claims that she will be harmed by the money lender because she cannot repay the debt. The delegate also found that country information indicated that Malaysian authorities are reasonably effective in combating illegal money lending and that the applicant would receive effective protection from the authorities.
Review application
The applicant provided a copy of the delegate’s decision record to the Tribunal. No further material was provided in support of the review.
At the hearing, the Tribunal discussed with the applicant information that was provided in her protection visa application and her current circumstances.
In response to the Tribunal’s queries about how the protection visa was prepared, the applicant gave evidence that she was assisted by her friend [Ms A] who worked with her on the farm. She said that [Ms A] asked her the questions and she answered them. She said that she had not checked all the information that was provided on the form and she could not recall what had been provided in the application because it was a long time ago.
The Tribunal noted that she had applied for protection in March 2017 and asked why she had sought Australia’s protection when she made the application. In response, the applicant stated that she told her friend that she is a single mother, and it was easy for her to get work in Australia and earn some money. When asked if there was any other reason why she was seeking Australia’s protection (and why she does not want to return to Malaysia) she said that Australia is a good country, it has good leaders, and she likes living here.
The applicant confirmed that she last travelled to Australia in February 2017. She gave evidence that she travelled to Melbourne and has been working on a farm doing seasonal work, including [tasks]. She gave evidence that she previously travelled to Australia (on three other occasions) between 2014 and 2016. She said that previously she had travelled to Perth to stay with her friend. On each occasion she stayed between three months and six months. When asked about the purpose of her previous travel to Australia, she said that it was to assist her friend with babysitting. When asked if she had been paid for babysitting, the applicant confirmed that she was.
The applicant gave evidence that she was married in Malaysia but that she has since separated from her husband. She said that they did not formally divorce because they were married in a church. She is Roman Catholic. She said that they separated in about 2002 or 2003. The applicant gave evidence that she has four children. Her eldest daughter, who was born in [year] is a single mother. The applicant gave evidence later in the hearing that her eldest daughter is currently living in Australia with her. She said that her eldest daughter got pregnant in Malaysia and travelled to Australia to visit her and give birth to the child. She said that the child’s father is living in Malaysia. She said that her eldest daughter and the child’s father were not married or in a relationship, they had separated after the eldest daughter became pregnant. Her second daughter, who was born in [year], is living in Malaysia and is married with three children. Her third daughter, who was born in [year], is in Malaysia and is married with a child. Her son, who was born in [year] and is [age] years of age, lives in Malaysia with his father (her ex-husband).
The Tribunal noted that on her evidence (and as indicated in the visa application) she is a Roman Catholic. The applicant confirmed that this was correct. When asked if she had any issues in Malaysia or faced any harm in Malaysia because of her religion as a Roman Catholic, the applicant stated that she did not.
The Tribunal noted that the visa application indicates her ethnicity is Sino Kadazan and asked the applicant whether she faced any issues in Malaysia because of her ethnicity. The applicant stated that while she has some mixed ancestry (hence her Chinese surname), they are indigenous to Sabah (North of Borneo) and she has not faced any issues in Malaysia because of her ethnicity.
The Tribunal informed the applicant that on the visa application, it was claimed that she was seeking protection because she had borrowed money from a money lender in Malaysia and that she feared being harmed by the money lender if she returned to Malaysia. When asked if that claim was true, the applicant stated that it was not true. The Tribunal put to the applicant that the person who assisted her with the visa application appears to have contrived claims about the money lender for the purpose of the protection visa application and that on her evidence, the Tribunal may not accept that claim and may find that she would not experience harm in Malaysia on that basis. In response, the applicant said that she is a single mum, and she informed her friend (who assisted her with the application) that she needed to work in Australia. She said that her friend told her that she should say that she owes money to a money lender and so she went along with it.
The Tribunal asked the applicant if she had ever experienced harm in Malaysia since she became a single mum (i.e., since she separated from her ex-husband), the applicant stated that she had not.
When asked about her current circumstances, the applicant stated that she is working on a [farm], where she has just started the [picking] season. In between [picking] season she undertakes other farming work. The applicant gave evidence that she communicates with her children in Malaysia every day. She said that she does not send money to them regularly, but if they ask her for money, she sends it to them. When asked about her savings, the applicant claimed that she had not saved much. The Tribunal noted that she had been in Australia since 2017 and gave evidence that she has been working. When pressed further, the applicant then stated that she has some savings in Malaysia. The applicant said that sometimes she looks after her eldest daughter who lives with her in Australia. When asked if her eldest daughter also works in Australia, the applicant stated that her daughter works with her, but it depends on whether she can find someone to look after the child.
The Tribunal referred the applicant to its earlier discussion about the purpose of a protection visa. It noted that, under Australian law, to be granted a protection visa she must, among other requirements, demonstrate that there is a real chance that she will face serious harm if she returns to Malaysia or that there are substantial grounds for believing that there is a real risk that she will suffer significant harm if she is returned to Malaysia. The Tribunal noted that it was not the purpose of the protection visa that applicants remain in Australia to work and earn money. When asked if she understood what the Tribunal was explaining to her the applicant confirmed that she understood.
The Tribunal asked the applicant if there was any other reason she did not want to return to Malaysia. The applicant said that she really likes Australia and wants to stay. The applicant requested the Tribunal to extend her visa so she can stay a bit longer to work. The Tribunal explained to the applicant that the Tribunal does not grant visas and that its role is to review the delegate’s decision and determine the issues in the review. It noted that if the purpose of her stay in Australia is to live and work, then she should seek advice about her eligibility to obtain a more appropriate visa, such as a work visa.
Consideration
The Tribunal has considered all the evidence before it and makes the following findings.
Based on information provided with the visa application, including the bio-data page of the applicant’s passport, information in the application form about the applicant’s place of birth and citizenship, and her oral evidence at the hearing (which was given in Malay), the Tribunal finds that the applicant is a national of Malaysia. The Tribunal has assessed the applicant’s claims against Malaysia as the receiving country. The applicant has not claimed, and there is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any other country.
Having been informed by the applicant that she had not checked the information provided in the visa application form and that she could not recall what was written in the application, the Tribunal sought to confirm with the applicant the information provided in her protection visa application. The Tribunal formed the view that (other than the claims for protection), the applicant’s personal information was largely correct.
The Tribunal accepts that the applicant was married to her former spouse, from whom she is now separated (though not divorced), and that she has four children aged between 17 and 33 years. The Tribunal accepts that the applicant is a Roman Catholic and that her ethnicity is Sino Kadazan (an ethnic group indigenous to Sabah with mixed Chinese heritage).
The Tribunal accepts that the applicant most recently travelled to Australia (via Melbourne Airport) in February 2017 and that she has been working on farms in [Town 2]. It also accepts that the applicant had previously travelled to Australia (on three occasions) to assist a friend with babysitting, for which she got paid. It also accepts that she worked in Malaysia as indicated on the visa application form.
The Tribunal accepts that the applicant’s eldest daughter lives (and sometimes works) with her in Australia and that the applicant would like to remain in Australia to work and earn money.
The Tribunal does not accept that the applicant has financial problems in Malaysia because she borrowed money from a money lender. It does not accept that she left Malaysia out of fear that a money lender would harm her because she could not make the repayments on time. It also does not accept that she had been threatened or physically assaulted in Malaysia by a money lender. On her own evidence, the applicant informed the Tribunal that the claims about having borrowed money from a money lender in Malaysia were not true and had been included in the form on the advice of her friend [Ms A] who assisted her with the visa application. The Tribunal finds that the claims about the applicant having borrowed money from a money lender in Malaysia had been contrived for the purposes of the protection visa application.
Given the above, the Tribunal finds that there is not a real chance the applicant will be harmed by a money lender if she returns to Malaysia now or in the reasonably foreseeable future. It also finds that there is not a real risk that the applicant will experience significant harm from a money lender as a necessary and foreseeable consequence of being returned to Malaysia.
The applicant has not suggested that she fears harm in Malaysia because she is a Roman Catholic. She indicated at the hearing that she had not experienced any harm in Malaysia on account of her religion as a Roman Catholic. Country information also indicates that Christians (which includes Roman Catholics), account for almost 10% of Malaysia’s population and that Christians generally live free from societal discrimination on a day-to-day basis and are usually able to worship freely without significant official interference.[1] On this basis, the Tribunal is not satisfied that there is a real chance (or real risk) that the applicant will experience serious harm or significant harm in Malaysia because of her religion.
[1] DFAT Country Information Report (Malaysia) 29 June 2021 at 3.58
In relation to her ethnicity, the applicant gave evidence that she has not faced any issues in Malaysia because she belongs to the ethnic group Sino Kadazan. There is also no evidence before the Tribunal which suggests that the applicant would experience harm upon return to Malaysia because of her ethnicity/mixed ethnicity. On this basis, the Tribunal is not satisfied that there is a real chance (or real risk) that the applicant will experience serious harm or significant harm in Malaysia because of her ethnicity.

When asked why she did not want to return to Malaysia, the applicant stated that she is a single mother and needed to work, and she was advised by her friend that it was easy for to get work in Australia and earn some money. When asked if there was any other reason why she was seeking Australia’s protection (and why she does not want to return to Malaysia) she said that Australia is a good country, it has good leaders, and she likes living here.
The Tribunal has next considered whether there is a real chance (or real risk) that the applicant will suffer serious harm or significant harm in Malaysia because she is a single mother. Firstly, the Tribunal notes that the applicant, on her own evidence, indicated that she had not experienced harm in Malaysia because she is a single mother, but has indicated that she prefers to remain in Australia to work and earn money. While the Tribunal accepts that the applicant is likely to earn a higher income in Australia than in Malaysia, the Tribunal is not satisfied that she would not be able to find work in Malaysia to at least subsist.
The applicant has worked in Malaysia and Australia and has experience in farm work, including [tasks], babysitting and [Occupation 1]. If she wished to do so, she could find similar work in Malaysia upon her return. Secondly, the Tribunal notes that three of the applicant’s children are now adults (two of whom still live in Malaysia), and her youngest child (her son) is being cared for by his father (the applicant’s former spouse). In the circumstances, the Tribunal considers that the applicant would be able to subsist on a modest income. Thirdly, the applicant indicated that she has some savings in Malaysia. Although she initially claimed she did not have savings, after the Tribunal noted that she had been living and working in Australia since 2017, the applicant said she had some savings in Malaysia though sought to understate the value of those savings by stating that it was not much. The Tribunal considers that the applicant could initially rely on her savings, however modest, (and stay with family if she so wished) upon her return to Malaysia until she secures work.
The Tribunal accepts that the applicant’s eldest daughter (who is also a single mother) is in Australia and that the applicant wants to remain in Australia to support her. The Tribunal notes however that the applicant’s eldest daughter has worked with her on the farm, and the Tribunal is not satisfied that the applicant’s eldest daughter would not be able to support herself through her own employment efforts in Australia.
For the above reasons, the Tribunal is not satisfied that there is a real chance (or real risk) that the applicant will suffer serious harm (including a denial of capacity to subsist) or significant harm in Malaysia because she is a single mother.
Conclusions
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that that there is a real chance of her suffering serious harm amounting to persecution for any of the reasons in s.5J(1)(a) if she returns to Malaysia now or in the reasonably foreseeable future. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal is also not satisfied, for the reasons set out above, that there is a real risk that the applicant will suffer significant harm, as exhaustively defined in s.36(2A), for any reason if she is removed from Australia to Malaysia. For these reasons, the Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
In relation to whether the applicant is a member of the family unit of a person who holds a protection visa, the Tribunal notes that the applicant gave evidence that her eldest daughter travelled to Australia as a visitor. The applicant has not provided any evidence which suggests that her daughter holds a protection visa. Accordingly, the Tribunal is not satisfied that the applicant meets s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
R. Skaros
Senior Member

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

[2022] AATA 1194

25 March 2022

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