1719757 (Refugee)

1719757 (Refugee) [2022] AATA 5000 (6 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1719757
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Mark O'Loughlin
DATE:6 December 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 December 2022 at 10:38am

CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity, religion and political opinion – indigenous, Christian and supporter of secessionist organisation – bias and discrimination – fear of harm from corruption, illegal immigration and crime – no past serious harm or fear of future serious harm – consent to decision without hearing – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), (c), (5), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Applicant A v MIEA (1997) 190 CLR 225

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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 11 August 2017 a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is an application for review of that decision.
The applicant applied for the visa on 28 March 2017. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant faces relevant persecution or significant harm and is not therefore owed protection by Australia.
On 18 July 2022 the applicant consented to the Tribunal deciding the review without a hearing.
Criteria for a protection visa
The relevant 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 must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that she is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) and (c).
Therefore, to succeed, the applicant will need to satisfy s36(2)(a) or (aa).
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, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
The Tribunal has relied on the following documents in making its decision;
·The delegate’s decision of 11 August 2017.
·the protection visa application dated 27 March 2017 (“the PVA”) including a supplementary statement of claims.
·Identity documents provided by the applicant.
Claims
The applicant set out her claims in the PVA at her answers to questions 88 to 96. The Tribunal summarises the claims in the PVA in this way:
·She did not intend to stay for long when she came to Australia but Malaysia now faces a harder challenge so she chooses to leave although that frightens her.
·She has been led to believe she is a second-rate citizen in her own country.
·She can see that racial bias and discrimination is now more transparent.
·She resists the political opinion because there are too much politicking, corruption and bribery which are rife in Malaysia.
·The increase in crime in Malaysia, especially Sabah, makes her feel unsafe.
·Kidnapping and illegal immigrants worry her, but the government is not acting to address these issues.
·She is also affected by the rise of Islamic fundamentalism because she is a Christian and because of that is not treated fairly.
·In a statement attached to the PVA the applicant adds that Sabah and Sarawak are in crisis because they have not been given the right rights on joining Malaysia.
·She says that she supports the efforts of SSKM (Sabah Sarawak Keluar Malaysia) to engineer the secession of Sabah and Sarawak from the Federation of Malaysia.
·She supports the organisation from afar.
·In answer to question 90 in the PVA she says she has joined and supports SSKM and will face the possibility of prison under the Prevention of Terrorism Act if she returns to Malaysia.
·The government will subject her to close surveillance.
·She cannot give full responsibility and devotion as a citizen because of the corruption and bribery which is increasing.
·As the illegal immigration increases, they dominate the local labour market with cheaper rates that the locals have to compete with.
·The applicant states in answer to question 91 that she did not experience harm in Malaysia.
·She said that moving to another part of the country would not help because Malaysia is a country with a wide range of cultures, religions, races and languages so it is difficult to be safe in a different part of the country where there are no relatives with whom to stay.
·In answer to question 94 she did not think she will be harmed if she returns to Malaysia.
·In answer to question 95 she does not think the authorities in Malaysia will protect her because the SSKM is banned by the government.
·She does not believe she will be able to relocate to a different part of the country because the system is the same in every state.
In the application for review made to this Tribunal on 25 August 2017, the applicant stated:
“I, [the applicant], I want to have the decision reviewed. I’m not saying that the decision is wrong, but I still need this visa as I need more time to be here. I have claim a few things with no sturdy prove that include I (as a pure bumiputera Sabah) was rated as a second rate citizen, we have no power in our own land and all was empowered by the Peninsular Malaysia (government). It is really difficult to find a job or open a business for a christian people and in many aspects such as personal loan, bank approval. Joining and supporting SSKM (Sabah Sarawak Keluar Malaysia) is the hope for sabahan to stop being rules and start being ruler in our own state not other people. For the corruption matters and the racist there is no way government or even anyone want to confess about it. I may not being harm physically if I going back to my country but I will mentally and emotionally abuse with all the lies. I really need the decision reviewed eventhou I have no sturdy prove all the things I claim. Thank you for your time”.
For the purposes of its consideration of this matter the Tribunal assumes that where the applicant says she was not harmed in Malaysia and she does not believe she will be harmed should she return, she is referring only to physical harm.
The applicant’s claims as set out arise from these considerations:
·Racial bias and discrimination.
·Political corruption and bribery.
·Her concerns about increasing crime rate, the risk of kidnapping, and illegal immigrants.
·The rise in Islamic fundamentalism, particularly in view of her Christianity.
·Her membership of SSKM and Sabah and Sarawak’s secession from Malaysia.
·She will suffer mentally and emotionally because of lies.
The applicant further says that she is unable to avoid the effect of these claims because diversity in Malaysia means that she is better served staying with her family whose culture and beliefs she understands.
She also says that she cannot expect to be protected by the Government because SSKM is a banned organisation.
Documentary Evidence
The applicant included some documents with her PVA, being a copy of her passport and some Malaysian identity documents as well as the further statement of her claims referred to above.
She provided the Tribunal with a copy of the delegate’s decision and a response to a notice seeking updated information. In her response she indicated that she did not have further documents she wanted the Tribunal to consider, nor did she wish to add to or update her claims for protection.
The Tribunal will therefore consider the applicant’s claims and the evidence she has provided to decide whether the applicant satisfies either of the remaining parts of s36, being s36(a) and (aa).
In considering the claims the Tribunal will also have regard to the DFAT Country Information Report- Malaysia dated 29 June 2021 (“the report”).
S36(a) - REFUGEE CRITERION
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. This is called the “refugee criterion”.
S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
The Tribunal has had regard to the delegate’s decision and finding as to nationality and is satisfied that the applicant is of Malaysian nationality. Further, the Tribunal is satisfied that the applicant is outside Malaysia.
The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Malaysia which is the next part of the definition of “refugee” at 5H(1)(a).
S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
·The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“convention reasons”).
·There is a real chance the applicant would be persecuted for one or more of those reasons, and
·If the real chance of persecution relates to all areas of Malaysia.
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.
“Persecution”
The term is not defined in the Act, but s5J(4)(b) specifies that persecution must involve serious harm to the person and s5J(4)(c) specifies that persecution must involve systematic and discriminatory conduct.
Further, the meaning of “persecution” has been judicially considered.
The Tribunal has regard to the decision of Justice McHugh in Applicant A v Minister for Immigration and Ethic Affairs:
“Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.”[1]
[1] Applicant A v MIEA (1997) 190 CLR 225 at 258
In Chan v MIEA, McHugh J said:
“The notion of persecution involves selective harassment…”
“Serious Harm”
S5J(4)(b) specifies that to be relevant, persecution must involve serious harm to the person. “Serious Harm” is not defined but there is guidance at s5(5) which provides instances of serious harm. They are:
(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.
The Tribunal notes that the list is not exhaustive and therefore “serious harm” does not exclude serious mental or emotional harm.
Racial Bias and DIscrimination
The applicant gives her race as “Dusun”[2]. This aligns with her claims to be from Sabah[3], to be Bumiputera[4], to be a Christian[5], and to speak some Dusun[6].
[2] PVA at pge. 20 in answer to question 33.
[3] PVA at pge. 18 in answer to question 16 and at various other places.
[4] Application to Tribunal for Review of Decision.
[5] PVA at pge 35 in answer to question 89.
[6] PVA at pge. 20 in answer to question 29.
The Tribunal has considered that part of the report that relates to Ethnic Malays and Indigenous Groups[7].
[7] DFAT Country Information Report – Malaysia 29 June 2021 pge. 20 and following.
The report refers to the indigenous people of the Malay Penisnula and, separately, to the indigenous people of Sabah and Sarawak. It is to this second group that the applicant belongs.
The report refers to tension between developers and indigenous groups in Sabah and Sarawak, particularly in relation to land development.
The applicant does not claim to have been involved in any such tension.
The applicant says that she has been led to believe she is a second-rate citizen in her own country, that racial bias and discrimination is now more transparent, and that moving to a different part of Malaysia would not help her because the range of cultures, religions, races, and languages mean it is difficult to be safe when one is away from one’s own relatives.
The applicant does not give any examples of how or when she has been discriminated against on the basis of her race.
The Tribunal is not satisfied that any bias or discrimination that the applicant faces in Malaysia involves serious harm.
Therefore the Tribunal is not satisfied that any bias or discrimination that the applicant faces in Malaysia is “persecution” for the purposes of the Act.
Therefore the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, nor is the Tribunal satisfied that there is a real chance that she would be persecuted for reasons of race if she returns to Malaysia.
The applicant does not, therefore, have a well-founded fear of persecution as contemplated by s5J of the Act due to racial bias and discrimination.
Political Corruption and Bribery
The applicant claims that there is “too much politicking, corruption and bribery which are rife in Malaysia”. She also claims that she canot give full responsibility and devotion as a citizen because of increasing corruption and bribery.
She does not say that she is persecuted by these matters and does not say what harm she will suffer because of them.
The Tribunal is not satisfied that the applicant fears persecution or that there is a real chance that she will be persecuted due to political corruption and bribery if she returns to Malaysia.
The applicant does not, therefore, have a well founded fear of persecution as contemplated by s5J of the Act due to political corruption and bribery.
Increasing Crime, Risk of Kidnapping and Illegal Immigrants.
The applicant claims that increasing crime, especially in Sabah, makes her feel unsafe. She also says that kidnapping and illegal immigrants worry her.
She does not say what crime she is worried about and does not suggest that any crime would be for convention reasons.
She does not suggest that she is at risk of kidnapping, who would perform the kidnapping or why she would be the target of kidnapping. She does not suggest that anyone she knows has been involved in kidnapping.
She says that as illegal immigration increases, the newcomers dominate the labour markets and the locals have to compete. She also says it is difficult to find a job.
She does not complain that she could not maintain employment or make a living. There is no suggestion that her ability to subsist was threatened.
The Tribunal is not satisfied that the applicant’s concerns about crime, risk of kidnapping and illegal immigrants establish a well founded fear of persecution for the purposes of s5J.
Islamic Fundamentalism, Her Christianity
The applicant claims that the rise of Islamic fundamentalism means she is not treated fairly, because she is a Christian.
She does not say how she is unfairly treated.
The report says that Christians accounted for nearly 10% of the population in 2010, the date of the most recent available data[8]. It says that Christians generally live free from societal discrimination on a day to day basis.
[8] DFAT Country Information Report- Malaysia 3.53.
The Tribunal is not satisfied that there is a real chance of persecution of the applicant due to her Christianity or to any rise in Islamic fundamentalism.
The Applicant’s Support of SSKM and Sabah and Sarawak’s secession from Malaysia
The applicant claims that Sabah and Sarawak were not given their rights when they joined Malaysia. She said that she therefore joined Sabah Serawak Keluar Malaysia, the SSKM. This is a body that aims to engineer the secession of Sabah and Serawak from Malaysia.
She says that because of her membership of that group there is the possibility that she would be detained and perhaps imprisoned under the Prevention of Terrorism Act if she returns to Malaysia.
She says that the government will subject her to close surveillance.
She also says that the authorities in Malaysia will not protect her because SSKM is banned by the government.
The applicant says that she supports the organisation from afar but gives no corroboration of that.
The applicant has not provided any evidence that she is a member of SSKM. The Tribunal is not satisfied that she is a member of SSKM.
The Tribunal is not satisfied that she fears persecution or there is a real chance of persecution by reason of membership of SSKM. The Tribunal is not satisfied that the applicant risks arrest under the Prevention of Terrorism Act by reason of membership of SSKM as she suggests.
Suffering due to Lies
In her supplementary statement lodged with the PVA the applicant suggests that she will suffer mental and emotional abuse with all the lies.
It is not clear who she says will lie, to what the lies will relate or how the lies will mentally and emotionally abuse her.
It seems that the applicant may be speaking about political corruption and racism.
The Tribunal has already rejected the applicant’s claims in respect of both of those matters.
The Tribunal is not satisfied that there is a real chance of persecution of the applicant due to lies.
Conclusion re Refugee Criterion
The applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).
S36(aa) - COMPLEMENTARY PROTECTION CRITERION
Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), she may nevertheless meet the criteria for the grant of the visa if she meets s 36(2)(aa) (‘the complementary protection criterion’).
To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of him/her being removed to Malaysia there is a real risk that he/she will suffer significant harm.

The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
S36(2A) provides as follows:
(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.
There is no suggestion that the applicant will be arbitrarily deprived of her life, that the death penalty will be carried out on her or that she will be subjected to torture.
S5(1) defines “cruel or inhuman treatment or punishment” as follows:
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 or the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
S5(1) defines “degrading treatment or punishment as follows:
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.
The Tribunal is satisfied that the applicant will not be subjected to any acts or omissions that will satisfy the definitions of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”.
The Tribunal therefore finds that the applicant is not owed protection obligations by Australia under s36(2)(aa).
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) 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 any of the criteria in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O'Loughlin
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.
…

[2022] AATA 5000

6 December 2022

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