1717134 (Refugee)

1717134 (Refugee) [2023] AATA 3607 (5 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717134
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Damian Creedon
DATE:5 August 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 August 2023 at 4:04pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of debt collectors – effective state protection – Royal Malaysia Police – economic hardship – capacity to subsist – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, a [age]-year-old citizen of Malaysia, arrived onshore [in] February 2017 holding an Electronic Travel Authority (Class UD) (Subclass 601) visa.
The applicant applied for a protection visa on 15 March 2017 and was granted a bridging visa which remains in force.
Protection visa application
In his protection visa application, the applicant claims to fear returning to Malaysia on account debts he has incurred.
Claims
In his protection visa application forms, the applicant makes a series of claims which may be summarised as follows:
a.The applicant claims that he left Malaysia because his “business is collapsed” and he “owed a lot of people money at Malaysia” which he cannot repay.
b.The applicant claims that he “get scare everyday because they are hired the shark loan” to recover the debt.
c.The applicant claims that his house was doused with petrol as a warning to either settle the debt or agree to trafficking drugs under the direction of the loan shark.
d.The applicant claims that if he returns to Malaysia he will be forced to traffic drugs or he will otherwise be killed.
The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision.
Application for review
The applicant was not represented in relation to the review.
Evidence
The Tribunal had before it a range of material, including, relevantly:
a.A copy of the applicant’s Malaysian passport;
b.The applicant’s protection visa application forms;
c.The delegate’s protection visa decision record dated 1 August 2017 (delegate’s decision record); and
d.The review application form lodged with the Tribunal on 6 August 2017 which included a copy of the delegate’s decision record.
The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Malaysia, 29 June 2021 (DFAT Report).
Hearing
The applicant appeared before the Tribunal on 1 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Applicant’s oral evidence
The following is a summary of the applicant’s evidence to the Tribunal:
a.The Tribunal asked the applicant about the completion of his Protection Visa application forms. The applicant stated that he had filled out the forms with the assistance of an “agent”. He confirmed that the contents of the forms were true and correct.
b.The applicant was born in Kedah, Malaysia. He is one of [number] siblings; his parents and siblings are resident in Malaysia. The applicant completed his primary and secondary education in Malaysia and began working as a “[Occupation 1]” after leaving school and “worked in [workplaces]”.
c.The applicant was married in Australia to a Malaysian national. The couple have one child, a son; the applicant’s wife and son have returned to Malaysia.
d.When asked about his decision to travel to Australia the applicant stated that the agent whom he consulted was his friend and he was told that there are “opportunities” here.
e.The applicant stated that he wished to apply for a working visa to come to Australia so as to earn enough money to repay debts he had incurred in Malaysia. He stated that he did not wish to apply for a protection visa as this prevented his travelling back to Malaysia to visit his family. He wants to obtain a working visa so that he may travel between his family in Malaysia and his work in Australia.
f.When asked by the Tribunal why he feared returning to Malaysia, the applicant stated, “debt collectors”. The applicant stated that he wished to continue working in Australia in order to settle his debts in Malaysia.
g.When pressed by the Tribunal, the applicant stated that he had borrowed (the equivalent of) approximately AUD$70,000 in Malaysia and that he now owed approximately AUD$10,000 - $15,000. The applicant stated that he had started a [business] in Malaysia and had borrowed the money to help cover costs.
h.When asked by the Tribunal what actions the debt collectors would take if he were to return to Malaysia now, he stated that he was “not sure”.
i.When pressed by the Tribunal as to whether they would threaten violence against him, the applicant stated
I’m not sure about [that] now, because the politicians and the police are getting strong.
j.When further pressed by the Tribunal, the applicant agreed that debt collectors would not “get away” with threatening violence now.
k.When asked by the Tribunal whether he could go to the police in Malaysia if he was threatened by debt collectors, the applicant stated:
Yes, I will.
l.When asked by the Tribunal whether the police would act to protect him from violence threatened by the debt collectors, the applicant stated to the effect that now, with the new government in Malaysia, he felt that they would.
m.When pressed by the Tribunal the applicant stated that he had no other fears about returning to Malaysia, but reiterated that his preference was to obtain a “working visa” to enable him to travel to Malaysia to visit family while maintain his work in Australia. He stated that he had sought to achieve this result by engaging migration agents but had been “scammed”.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria of a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or he is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or he may nevertheless meet the criteria for the grant of the visa if he or he 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 he 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
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or his. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Analysis: creditors
In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully. Overall, the Tribunal is persuaded as to the general truth of the matters he attests to. In particular, the Tribunal accepts that the applicant borrowed approximately AUD$70,000 in Malaysia of which all but approximately AUD$10,000 - $15,000 has been repaid. Further, the Tribunal accepts that the applicant’s primary motive in coming to Australia was to find work to pay his debts in Malaysia.
Overall, the applicant’s evidence regarding having been threatened by his creditors was vague, despite being pressed by the Tribunal. Ultimately, his evidence in this respect was that his creditors could not “get away” with threatening violence against him, that the police in Malaysia would act to protect him and that he would seek their protection if he was threatened.
This evidence is consistent with the country information. While corruption can limit the effectiveness of police action against loan sharks and other similar creditors in Malaysia, DFAT’s overall assessment of police and court process in Malaysia includes the following (from the DFAT Report):
5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. SUHAKAM conducts some human rights training and workshops for police, state Islamic religious authorities and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which was created in 2009 as part of the government’s response to police corruption, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts. Perceptions of the EAIC’s ineffectiveness contributed to calls for a new police accountability body (see IPCMC below).
…
5.18 DFAT assesses that, while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.
Having considered the applicant’s evidence regarding his preparedness to seek police assistance should he be threatened, and the country information set out above, the Tribunal is satisfied that effective protection measures are available in Malaysia[1] and that the State is able and willing to provide such protection.[2]
[1] s.5LA(1)(a) of the Act
[2] S.5LA(1)(b) of the Act
From the country information, the Tribunal is satisfied that Malaysia has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.[3] Therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as a victim of a loan shark or creditors as claimed.
[3] S.5LA(2)
Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicant as a victim of a loan shark or creditor.
Therefore, having considered the applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Malaysia and finds that the applicant does not satisfy s.36(2)(a).
Complementary protection.
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s.36(2)(a), the Tribunal does not accept that the applicant will suffer significant harm at the hands of his creditors.
There is no real risk of significant harm if the applicant can ‘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’.[4] To satisfy s.36(2B)(b)[5], the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[6] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[7] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, section 36(2B)(b) requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.
[4] s.36(2B)(b) of the Migration Act 1958
[5]     MIAC v MZYYL (2012) 207 FCR 211
[6]     MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.
[7]     In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).

Having considered the country information referred to above and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from the state and other authorities available to the applicant, if removed from Australia to anywhere within the applicant’s country of reference, would remove the real risk of significant harm. That is, the Tribunal finds that the Malaysian Police Force will provide effective protection to the applicant from physical harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that he will suffer significant harm. He has stated in evidence that he would seek that protection from the authorities if threatened. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia and does not satisfy s.36(2)(aa) in this regard.
In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, that there is a real risk that he will suffer significant harm of any kind.
Analysis: economic hardship
Although the applicant did not give evidence or present arguments at the hearing in specifically respect of his claims of economic hardship, the Tribunal has nevertheless considered those claims for the sake of completeness.
The Tribunal accepts that the applicant does not wish to return to Malaysia because he believes that he would be unable to earn a wage there commensurate with his earning potential in Australia. However, the applicant made no claim that this circumstance would result from one or more than one of the five reasons enumerated in s.5J(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group.
Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established. Put differently, to fall within the ambit of s.5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, membership of a particular social group or political opinion. None of these reasons apply to the applicant’s claim. Even where an applicant may have a particular vulnerability, harsh conditions of general application in a receiving country in, and of, themselves do not give rise to a well-founded fear of persecution for the purposes of the refugee criteria.[8] The applicant made no claim to having a particular vulnerability in this respect.
[8]MIMIA v VFAY [2003] FCAFC 191 at [60].
In its most recent overview of Malaysia’s economy,[9] DFAT reports that:
2.11 Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called ‘B40’ who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.
2.12 In 2020, Malaysia’s economy was hit with the dual shock of COVID-19 and a decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID-19. The economy is expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. The Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages. Measures included wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants of MYR3,000 (AUD 950) to qualifying SMEs and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.
[9] DFAT Report, p.11.
In view of this information the Tribunal is not persuaded that the applicant would be subjected to significant economic hardship in Malaysia that threatens his capacity to subsist there. The Tribunal notes DFAT’s expectation that the Malaysian economy will “rebound” after 2020. The Tribunal further notes that the International Monetary Fund, in its “July 2023 World Economic Outlook Update” projects Malaysia’s real GDP growth for 2023 to be 4.5%.[10]
[10] See: <>
The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution in Malaysia based upon a claim of economic hardship.
Complementary protection
The Tribunal accepts the applicant may have concerns about being able to find work if he returns to Malaysia and the general economic situation there. The Tribunal also accepts that he may face some difficulty in doing so at least initially. However, the applicant did not suggest that any person or group will seek to harm him for any reason relating to his economic situation. There is no evidence before the Tribunal that he has ever been discriminated against or otherwise prevented from obtaining work in Malaysia.
Accordingly, the Tribunal finds that any economic hardship the applicant might experience if removed to Malaysia would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing his to suffer significant harm.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Malaysia. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Malaysia. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by the Act and therefore he is not a refugee.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies the Act 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.
Damian Creedon
Member

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

[2023] AATA 3607

5 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice