1717872 (Refugee)

1717872 (Refugee) [2017] AATA 2415 (6 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717872
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Frances Simmons
DATE:6 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 November 2017 at 6:27pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Debts – Loan sharks – Working in Australia to pay off debts – No risk of serious harm
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1),5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A)-(2B) 36(3), 36(2A),36(2B), 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 [in] August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of Malaysia. He arrived in Australia [in] March 2017. He applied for the visa [in] June 2017. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has considered the evidence on the Departmental file ([number]) and the Tribunal’s file, including the applicant’s oral evidence at the Tribunal hearing on 24 October 2017 and the documents that were provided to the Tribunal.
Brief summary of claims and evidence
The applicant is a [age] man with a wife and two children in Malaysia. He is of the Muslim faith and the Malay ethnicity. Before he travelled to Australia, he had never left Malaysia. According to his application, he lived at the one address in the state of Terengganu from [year] until March 2017. He also states that between March 2009 and March 2017 he worked in Kuala Lumpur [in a certain industry].
In the written claims that accompanied his protection visa application the applicant claimed he borrowed money from a money lender and is unable to settle the debt. He claims that he is ‘worried if I stay in my country a certain people will find me and harm me.’ The applicant claims that he is sacred as the ‘money lender is like a gangster’. He claims that if he returns to Malaysia the money lender will beat him, break his finger, chop his finger or even kill him.[1]
[1] Departmental file, folios 22-24.
The applicant was not invited to an interview with the delegate. The delegate considered that the country information indicates that the Malaysian authorities - including the RMP and the judiciary – are reasonably effective in combatting illegal money lending. While the delegate acknowledged that sometimes corruption was a problem, the delegate found there was nothing before her to indicate that the State would be unable or unwilling to protect the applicant in his particular circumstances.[2]
[2] Tribunal file, folio 2-5 (the delegate’s protection visa decision record)
When the applicant appeared before the Tribunal he gave evidence that he filled out his protection visa application with some help from his friends. He told the Tribunal that the information he provided in his application was true and correct. However, later in the hearing, he provided new details about where he lived and worked between 2009 and 2017.
In summary, the applicant told the Tribunal that in the two years before he travelled to Australia he was living [in] Kuantan with his family. Previously he lived in Kuala Lumpur and, before that, in the state of Terengganu, where he was born. Between 2009 and 2017 he was worked [in a certain role] for a [company]: he clarified that initially he did this work in Kuala Lumpur and, after relocating to Kuantan, he continued to work in the same position for this company.
The applicant told the Tribunal that he decided to stop working and come to Australia to seek protection as it was not safe for him to live in Malaysia because he had borrowed money from a company with high interest in Malaysia and he failed to repay the money. He told the Tribunal that he borrowed this money when he was in Kuantan. He told the Tribunal the money lender and the gang came so about ten days before he travelled to Australia he had to take his family away to live with his [relative]. He told the Tribunal his wife and children are still staying with his [relative] at a stated address (about [distance] from Kuantan). He said they will not harass his wife and children. They will just harass him because he borrowed the money. He didn’t have any problems from loan sharks when he was living with his [relative] for ten days. He could not stay with his [relative] because he does not work in this area.
The applicant is currently working at [a company] where he earns $AUD [amount] weekly. He is sending some of this money home to his family to pay off the money he borrowed from his family to come to Australia to work. His wife does not work. He claimed, in essence that, he would not be able to generate sufficient income to repay his debts in Malaysia and, if he failed to repay his debts, he would face harm from money lenders.
The applicant was questioned about: the nature of his debts in Malaysia, whether he could seek police assistance from loan sharks, and whether he could repay his debts by working in Malaysia. Where relevant his evidence is referred to below in the findings and the reasons. Towards the end of the hearing the applicant told the Tribunal that after he had paid off his debts he would return to Malaysia; he wanted to return as his family were there and his son was only [age] when he left. He thought if he could remain in Australia for ten months he could settle his debts to money lenders.
Findings and reasons
The applicant claims to be a citizen of Malaysia and provided a copy of the biodata page of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant's receiving country for the purposes of the refugee and complementary protection assessment.
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This, in turn, requires the Tribunal to assess whether the applicant’s claims are credible. 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. If the Tribunal 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.[3] 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.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220
[4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
The Tribunal is prepared to accept that the applicant has debts in Malaysia. However, although the applicant was advised to provide as much detail as he could, the Tribunal found his evidence about who he owes money to, when he borrowed this money, and how much money he owes to be rather vague. For example, when asked when he borrowed money from loan sharks he said he couldn’t remember. Questioned further, he said he borrowed this money in 2016 and, later in the hearing, he stated he borrowed the money towards the end of 2016. Questioned about when he last made a repayment to loan sharks, he responded before he came to Australia. Asked how much money he borrowed, he told the Tribunal that he borrowed money from ‘two or three places: he borrowed [amount] RM from one lender, [amount] RM from another, and [amount] RM from a third. He told the Tribunal he had not paid any of these debts off yet. Questioned further, the applicant gave evidence that whilst in Malaysia he borrowed money from a number of different [lenders]. He estimated his total debts were around [amount] RM including interest.
Not without doubt, for the purpose of this decision, the Tribunal is prepared to accept that the applicant’s evidence that his debts in Malaysia total [amount] RM ($AUD [amount]). The applicant’s evidence to the Tribunal indicates that a significant part of this debt is owed to [Lender 1] with lesser amounts owed to [Lender 2], and two private money lenders: [Lender 3] and [Lender 4]. The Tribunal accepts that, because wages in Australia are comparatively higher than wages in Malaysia, the applicant would prefer to remain in Australia for a temporary period so he can work and settle his debts. The applicant gave evidence it would take around ten months for him to pay off the debts he had in Malaysia by working in Australia (he is currently employed [in a company] earning around $AUD [amount] p/w). He told the Tribunal that after he had repaid his debts he wanted to return to Malaysia as he has a very young family there; his youngest son was only [age] when the applicant left Malaysia.
Essentially, while the applicant told the Tribunal that he has the capacity to settle his outstanding debts by working in Australia for a period of ten months, he has denied that he would be able to repay his debts over time by working in Malaysia, claiming that he would not be able to generate sufficient income to do so. He claims that, if he returned to Malaysia before he settles his debts he would be at risk of harm because money lenders would still be looking for him. When it was put to the applicant that it appeared that he would be able to work, wherever he was and repay his debts, the applicant gave evidence that he thought he would fail to pay the debts with the money he earned in Malaysia: he used to work twelve hours a day, then it was down to eight hours a day. While it is possible that, by the time the applicant actually returns to Malaysia, he may have had the opportunity to make good on his desire to settle his debts in Malaysia, the Tribunal has nonetheless considered whether there is a real chance that he would face serious harm or significant harm if he returned to Malaysia now or in the reasonably foreseeable future.
The Tribunal finds, based on the applicant’s clear evidence, that he has not experienced serious harm or significant harm in Malaysia in the past. When the applicant was asked why he would face harm if he returned to Malaysia now, he stated he failed to repay his debts. He gave evidence that he was concerned he would face harm from two money lenders– [Lender 3] and [Lender 4]. However, the applicant did not claim to have experienced serious harm or significant harm in the past from these money lenders and his evidence about why he believed they would harm him if he returned to Malaysia was very vague. For example, when asked to explain why he was afraid that these two companies would cause him serious harm or significant harm, he responded even his friends had experienced this but he did not provide any meaningful details about threats that have made against him. Despite telling the Tribunal that his attempts to contact one of the companies, [Lender 4], had been unsuccessful, he claimed he would be harmed if he went back to Malaysia as they will ‘know his whereabouts’ and ‘be able to trace him as they want his money bank’. Furthermore, while he has provided an email (said to be from [Lender 3]) that indicates that he owes [Lender 3] [amount] RM, the Tribunal is not satisfied that he has ever been threatened with serious harm or significant harm because he failed to repay this loan, either in part or full.
The Tribunal found the applicant’s evidence about the efforts he has made to repay his debts to the two money lenders ([Lender 3] and [Lender 4]) that he claims to fear to be very vague. Asked why, if he was afraid of these companies, he hadn’t used the money he was earning in Australia to pay them back, the applicant responded that he had tried to pay them but it would take a while to do that. It was only now he had a permanent job; previously, he did not have enough to pay rent. However, as discussed at the hearing, he provided an email which indicates that he owes [Lender 3] money lender [amount]RM and he gave evidence that, for the last two months, he had worked at [a company] earning $AUD[amount] per week, which is the equivalent of around [amount] RM. The applicant told the Tribunal he needed to look after the repayment of the car insurance and the family first. The Tribunal accepts the applicant may have had certain family responsibilities and he may have paid for car insurance but in the circumstances expects he might have made some effort to repay even a small part of the debt in order to avoid being harmed. However, when it was put to the applicant that if he really thought loan sharks were going to harm him and his family surely he would just sell the car and settle the [debt], the applicant said he will repay the money: he needs time to do so. In this context, the Tribunal considers the fact that the applicant has not prioritised repaying [Lender 3] casts doubt on his claim that he is afraid that this money lender will harm him because he cannot repay his debts.
Furthermore, in the Tribunal’s view, the applicant’s evidence about the nature of the two money lenders that he claimed to be afraid of ([Lender 3] and [Lender 4]) was very vague and he has not adequately explained why he could not seek police assistance if he was afraid of being harmed by loan sharks. When the Tribunal asked whether [Lender 3] and [Lender 4] were illegal money traders or legal money traders, he said he found the fliers by the roadside; he was not sure whether they were registered or unregistered. It was put to him that illegal money lending is an offence under Malaysian law and can attract a fine or five years in prison.[5] The applicant said he didn’t know. Asked whether, if illegal money lenders were threatening his personal safety or the safety of his family he could seek police assistance, the applicant did not respond directly: he said he felt he was not safe, he tried to have a small business [but] it failed so he had to borrow from a money lender.
[5] KL Consumer Safety Association - No need to fear the loan sharks, Bernama (Malaysian National News Agency), 17 February 2015, CXBD6A0DE1580
The Tribunal accepts that the applicant owes money to [Lender 1] and that the bank is trying to recovers its monies. The applicant provided untranslated documentation relating to the money he owes [Lender 1]. The Tribunal considers that the applicant’s evidence indicates that he was able to make repayments to [Lender 1] whilst in Malaysia. The applicant is now working in Australia and he told the Tribunal that, when representatives of bank visited his family home while he was in Australia, he paid the bank [amount] RM to ‘calm them down’. At the hearing the Tribunal discussed with the applicant his debts to [Lender 1] and pointed out that the transaction records he submitted to the Tribunal stopped [in] July 2017 and did not cover the months before the hearing [in] October 2017. The Tribunal asked him to explain a [amount] RM credit that appears on the bank record on [date]/07/2017. The applicant denied knowledge of this transaction before suggesting it could be related to insurance. Be this as it may, the applicant did not suggest that he would face serious harm or significant harm as a consequence of his claimed debt to [Lender 1]. The applicant told the Tribunal that the worst that would happen is that he would be made bankrupt and he did not suggest that the act of bankruptcy or the consequences that would follow would constitute serious harm or significant harm. In any event, the Tribunal considers that the applicant’s evidence indicates that he has the capacity to work in Malaysia and pay off his debts off to [Lender 1] over a period of time.

The applicant also gave evidence that he had a debt of around [amount] RM to [Lender 2] but that his attempts to contact this lender had been unsuccessful and this lender had told him he had failed to respond to them when he was asked to do so. While the Tribunal is prepared to accept that the applicant has a debt of around [amount] RM to [Lender 2], the applicant did not suggest that he would serious harm or significant harm as a consequence of the money he owes to [Lender 2]. As noted above, the applicant’s evidence indicates that he has both the capacity and inclination to obtain work to repay his debts. While the Tribunal accepts that the applicant would prefer to repay his debts by working in Australia because the comparatively higher wages in Australia will enable him to discharge his debts faster than he would be able to do if he was working in Malaysia, in the Tribunal’s view if the applicant were to return to Malaysia now, or in the reasonably foreseeable future, he would be able to secure work and repay his debts to [Lender 2] over a period of time.
The mere fact that the applicant may be afforded greater economic opportunities in Australia than he would in Malaysia does not make him a refugee and nor does it entitle him to complementary protection. As discussed at the hearing, it may be that the applicant will face a degree of financial stress if he returns to Malaysia – he has debts to a bank and other money lenders, a family to support. The Tribunal accepts that, at least in the immediate future, he would prefer to work in Australia where wages are comparatively higher than wages in Malaysia and, according to his evidence, he could settle his debts in a ten month period. However, as the Tribunal explained to the applicant, it must consider whether there is a real chance that he will face serious harm or significant harm.
In the Tribunal’s judgment, the applicant has exaggerated the difficulties he would face if he were to return to Malaysia. The applicant’s evidence indicates that he has not experienced serious harm or significant harm in Malaysia in the past and the Tribunal finds that he has not. The Tribunal is not satisfied that he was ever threatened with serious harm or significant harm by money lenders/loan sharks or gangs. Furthermore, while the applicant’s immediate family may well be living in his [relative]’s house, the Tribunal does not accept that his family relocated away from Kuantan to avoid money lenders/gangs. The applicant has not claimed and the Tribunal does not accept that his family have been threatened or otherwise harmed by loan sharks/money lenders/bank while the applicant has been in Australia. Moreover, while the bank and other money lender may make contact with the applicant to remind him that he needs to repay his debts, the Tribunal does not accept that this contact, without more, amounts to serious harm or significant harm.
The Tribunal considers the applicant’s evidence indicates that he has capacity and inclination to secure work in Malaysia: he has a history of continuous employment in Malaysia and was also able to find work in Australia. The Tribunal has considered the applicant’s evidence that he comes from a poor family and his family would not be able to help him. The Tribunal has some reservations about this (elsewhere in the hearing the applicant indicated he borrowed money from his family to travel to Australia and his wife and children are currently living with his [relative]). However, even if it is accepted that he could not seek family help, the Tribunal considers that the applicant will be able to secure employment in Malaysia and repay his debts over time. Furthermore, as the Tribunal put to the applicant, Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy. [6]Annual economic growth has been around five per cent in recent year. DFAT reports that the unemployment rate in December 2015 was 3.3 per cent[7] and the unemployment rate was still around 3.5 per cent.[8] Malaysia’s economic growth has led to a significant reduction in poverty with the share of households living below the national poverty line falling from over 50 per cent in the 1960s to 0.28 per cent in 2016. [9] In response the applicant said that the cost of living was high compared to wages.
[6] DFAT Country Information Report, Malaysia, 19 July 2016, p.5-6
[7] DFAT Country Information Report, Malaysia, 19 July 2016, p.5-6
[8] Department of Statistics, Malaysia, Official Portal,
[9] DFAT Country Information Report, Malaysia, 19 July 2016, p.6.
The Tribunal has considered the applicant’s evidence, however, having regard to the personal circumstances of the applicant, his history of continuous employment in Malaysia and Australia, and DFAT’s assessment of Malaysia’s economic situation, the Tribunal finds that the applicant has the capacity and inclination to work to repay his debts in Malaysia and that, if he returns to Malaysia now, he would be able to continue to work to repay his debts. While it may well take the applicant longer to repay these debts in Malaysia, than it would in Australia, the Tribunal considers that he does have the capacity to make repayments in Malaysia as well in Australia. In these circumstances, the Tribunal finds that there is no real chance that he will face serious harm or significant harm from money lenders/ loan sharks in Malaysia. Furthermore, with respect to the question of whether the applicant may experience economic hardship if he returns to Malaysia now or in the reasonably foreseeable future, the Tribunal does not accept that any economic hardship that he may experience if he returns to Malaysia will amount to serious harm or significant harm.
Looking forward, having regard to what it has accepted of the applicant’s claims and circumstances, the Tribunal does not accept that, if he returns to Malaysia now, or in the reasonably foreseeable future there is a real chance that he will face serious harm or significant harm from private money lenders (including [Lender 3] and [Lender 4]), [Lender 1], [Lender 2], loan sharks, or any other individual or group in Malaysia. On the evidence before it, the Tribunal does not accept that there is a real chance that the applicant will face serious harm or significant harm for reasons relating to any outstanding debts that he may have in Malaysia or that any economic hardship that he may experience if he were to return to Malaysia will amount to serious harm. The Tribunal does not accept that the applicant will experience severe economic hardship that threatens his capacity to subsist or be denied the capacity to earn a livelihood, where the denial threatens his capacity to subsist or that he will be denied access to basic services, where the denial threatens his capacity to subsist or that he will be subject to any other form of serious harm non-exhaustively listed under s.5J(5) of the Act. Nor, on the evidence before it, is the Tribunal satisfied that there are substantial grounds for believing there is a real risk that he will suffer significant harm in Malaysia for reasons relating to any economic hardship he may experience if he returns to Malaysia.
Conclusions
The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm because he has outstanding debts in Malaysia or for any other reason. Having regard to the country information and its findings of fact, the Tribunal finds that there is no real chance that he will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
The Tribunal has considered whether the applicant is entitled to complementary protection. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB.[10] In view of its findings of fact, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm from loan sharks, money lenders or debt collection agencies or the banks or from any other person or group in Malaysia.
[10] [2013] FCAFC 33
Having considered the applicant's claims, having regard to its findings of fact, the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of life, or that the death penalty will be carried out on him, or that he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Malaysia now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in s.36(2A) and s 5(1) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. 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.
Frances Simmons
Member

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

[2017] AATA 2415

6 November 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies