1720366 (Refugee)

[2017] AATA 2671

1720366 (Refugee) [2017] AATA 2671 (7 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720366

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Frances Simmons

DATE:7 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 November 2017 at 6:11pm

CATCHWORDS

Refugee – Protection Visa – Malaysia – Economic hardship – Credit card debt – Bankruptcy – Fear of imprisonment

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293

MIAC v SZQRB [2013] FCAFC 33

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

1. 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).

2. The applicant is a citizen of Malaysia.  He first arrived in Australia [in] June 2016. He returned to Malaysia [in] July 2016. [In] May 2017 he returned to Australia and [in] May 2017 he applied for protection visa. The delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations and refused to grant the protection visa.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The Tribunal has considered the evidence on the Department’s file  ([file number]) and the evidence that the applicant provided to the Tribunal.

   Summary of application for a protection visa

10. The applicant declares that he is of Malay ethnicity and Muslim faith and his occupation is [Occupation 1]. He speaks, reads, writes Malay and English. His wife lives in Malaysia.  Before he left Malaysia he lived in Pulau Pinang. Between 1996 and February 2017 he worked as [Occupation 2] in Malaysia. According to his protection visa application, he travelled to [Country 1] [in] March 2017 for a day trip.

11. In his protection visa application the applicant states that he left Malaysia because of a financial issue. He states that his problems started when he applied for a credit card in 2002. He was unable to settle his credit card debt of [amount] and the debt increased to [around double the original amount]. In 2017 the bank advised his that he need to pay [a much larger amount]. He was shocked as he thought the bank had terminated his credit card.

12. The applicant claims that he is not able to do anything and he is not allowed to leave the country. He claims his life is upside down and he is depressed. He is [age] and he wants to be happy. He is clueless and does not know who could help him.  He claims he will not be able to travel to any other country as long as he has not settled his debt. He doesn’t know if the authorities could protect him. He has no intention of relocating within Malaysia.

    Summary of application for review

13. The applicant appeared before the Tribunal on 24 October 2017.  The Tribunal explained the refugee and complementary protection criteria. The applicant submitted the following documents to the Tribunal:

    ·A copy of a credit card issued by [Bank 1] to ‘[name]’  in 1997;

    ·A letter from solicitors acting on behalf of [Bank 1] to the applicant dated [May] 2002 advising him that he has a credit card debt of [amount] and noting the interest payable until the overdue account is settled;

    ·A letter from [Bank 1] dated [in] January 2016 notifying the applicant that that he has an outstanding credit card debt of [amount], that the bank has not received any payment from him despite requests for payments, and that a debt collection agency has been appointed to collect the outstanding debt.

    ·A letter from [Bank 1] dated [in] September 2016  notifying the applicant that that he has an outstanding credit card debt of [amount], that the bank has not received any payment from the applicant despite requests for payments, and informing the applicant that a new debt collection agency has been appointed to collect the outstanding debt.

    ·A letter from [Bank 1] dated [in] March 2017 notifying the applicant that that he has an outstanding credit card debt of [amount], that the bank has not received any payment from him despite requests for payments, and that a new debt collection agency has been appointed to collect the outstanding debt.

14. The applicant reiterated his case was about a credit card debt and he told the Tribunal that he was afraid that, if he returned to Malaysia, bankruptcy proceedings would be brought against him. He told the Tribunal his credit card initially had a limit of [amount]. He used that card in 1997 until 2002. After that business went bad and he could not pay the last bill. The problem started when he was given the bill of [large amount]. He can pay [the original amount] but he can’t pay [the larger amount].  He claimed he has been blacklisted and cannot borrow money in Malaysia.

15. The applicant advised that he filled out his protection visa application himself and its contents are correct. He confirmed that he was concerned that he had an outstanding credit card debt in Malaysia. Asked whether there were any other reason that he would have difficulty if he were to return to Malaysia, he told the Tribunal that the debt collector threatened to black list him and now he is black listed. If he doesn’t pay up he would be bankrupt and then he couldn’t do anything at all.

16. The applicant told the Tribunal that he first travelled to Australia [in] June 2016. He stayed in Australia for [a number of] weeks and he returned to Malaysia [in] July 2016.  Before he travelled to Australia on a second occasion he was living in his house in Pulau Penang with his family (‘the family home’). His wife is still lives at the family home, which is owned by his [relative].  His wife is no longer working as the [workplace] where she used to work has closed down. The applicant is supporting himself in Australia by [working as Occupation 3]. Before he travelled to Australia he worked at [Occupation 2] in Malaysia where he made [amount] p/w.

17. In the course of the hearing it was put to the applicant that the debt he owed was to a bank and while the bank may have an arrangement with a collection agency to try and recover this debt, the Tribunal did not have any information that the bank would harm him when they tried to recover the debt. The applicant claimed that the debt collector called him and threatened him and wanted to make him bankrupt and because of this he couldn’t leave the house. He needed money for his children’s education. The Tribunal pointed out his evidence indicated that he had left the house: his evidence indicated that he had this debt since January 2016 and in that time he had travelled to Australia to twice and also to [Country 1]. The applicant said he went to [Country 1] by road on a day trip. Because of the debt he came to Australia and when he returned to Malaysia he got a letter from the bank in March 2017 and a telephone call.  He gave evidence that he was scared of being bankrupt, he would be unable to go abroad and if he was prosecuted he would end up in jail.

18. The Tribunal discussed with the applicant the letters he submitted to the Tribunal concerning his outstanding debt to the bank and whether he could repay this debt by working in Malaysia. Where relevant his evidence is discussed further below in the findings and reasons. The Tribunal also discussed with the applicant that, if he was the subject of bankruptcy proceedings this would appear to be consequence of the enforcement of a law of general application, namely the Bankruptcy Act. Where relevant the applicant’s evidence about this issue is discussed further below.

    Findings and reasons

    Country of nationality

19. 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.

20. 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.[1]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]

    [1] MIMA v Rajalingam (1999) 93 FCR 220

    [2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

21. The applicant is a [man] with a wife and [a number of] children in Malaysia. According to his evidence to the Tribunal, he worked as [Occupation 2] between 1996 and early 2017. Based on the evidence before the Tribunal, the Tribunal finds that:

    ·The applicant has an outstanding debt to [Bank 1] in the sum of [amount].

    ·[Bank 1] has engaged different debt collection agencies in an attempt to recover this money from the applicant.

    ·The applicant has not made any repayments to [Bank 1].

22. The Tribunal accepts that, while bankruptcy proceedings have not yet been commenced against the applicant he is afraid that, if he returns to Malaysia, he will be subject to bankruptcy proceedings and be declared bankrupt. The Tribunal accepts that the applicant has been advised he can enter into an arrangement to pay off the outstanding debt of three years but that he is afraid that, if he has to return to Malaysia, he will be unable to generate sufficient income to pay off the [debt] within this period. The Tribunal accepts that the applicant has been blacklisted from borrowing money from banks and other lenders.

23. At the hearing the Tribunal referred to a report that close to 300 000 Malaysians were involved in bankruptcy and around 8,000 to 20,000 individuals were declared bankrupt for various reasons every year.[3] At the hearing the applicant stated he was afraid of being jailed but, as the Tribunal put to the applicant, the information available to the Tribunal about bankruptcy in Malaysia does not indicate that bankrupt individuals are jailed and there is also a Credit Counselling and Debt Management Agency (AKPK) for people facing bankruptcy. The applicant claimed he had been to this agency and they had suggested that he repay the debt over three years but that this was not enough time to pay off his debt. He told the Tribunal that if he is in Malaysia the bank will continue to give him notices and he will be scared. He told the Tribunal he has not paid any monies towards the debt; he wanted to pay but they want him to do it three years and he could not do this. He did not have any paper work about an arrangement to repay the debt over three years as he was too scared to discuss the matter in person and only did so over the telephone. He gave evidence he earned around [amount] a week working in Malaysia and he pointed out that wages are comparatively higher in Australia.

    [3] >

    Because the Tribunal is prepared to accept that, if the applicant returns to Malaysia, he is unlikely to be able to generate sufficient income to repay his outstanding debt in a three year period, the Tribunal accepts that there is a real chance that he will be the subject of bankruptcy proceedings if he returns to Malaysia. While the Tribunal notes that, as discussed with the applicant, he has been able to depart Malaysia on three occasions (to travel to Australia in June 2016, to [Country 1] [in] March 2017, and to Australia [in] May 2017), the Tribunal acknowledges that if a person is declared in bankrupt they may not travel overseas without the written permission from the Malaysian Director of Insolvency or a court order permitting from the DGI or after obtaining a court order allowing him to do so.[4]

    [4] >

    The Tribunal accepts that, if the applicant were made bankrupt, he may be prevented from leaving Malaysia during the period of his bankruptcy, his assets may be confiscated, and he may be unable to obtain credit or further finance from banks or finance companies. However, as discussed at the hearing, the family home is owned by his mother-in-law and the Tribunal considers that, even if the applicant was declared bankrupt, it appears he would still be able to reside in the family home. Furthermore, having considered the applicant’s evidence and the information before the Tribunal about the consequences of being declared bankrupt in Malaysia[5], the Tribunal is not satisfied that there is a real chance that the applicant will be jailed as a consequence of any bankruptcy proceedings that are brought against him.

    [5] Official Portal, Malaysia Department of Insolvency, Bankruptcy < > ; see also

24. Furthermore, as discussed with the applicant, bankruptcy proceedings in Malaysia occur as a result of the enforcement of generally applicable law, namely the Bankruptcy Act 1967. It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention,[6] for the reason that enforcement of such a law does not ordinarily constitute discrimination.[7]As discussed with the applicant, any proceedings by which the applicant may be declared a bankrupt would be as the result of the enforcement of the Bankruptcy Act 1967, which appears to be a generally applicable law that applies to everyone in Malaysia. The applicant has not claimed and nor is there any evidence before the Tribunal that would support a finding the Bankruptcy Act would operate in a discriminatory way for any of the reasons identified in the refugee definition or be enforced selectively against him for any of the reasons identified in the refugee definition. As the Tribunal considers the Bankruptcy Act to be a law of general application and the Tribunal does not accept that the enforcement of this law against the applicant constitutes persecution for the purposes of s.5J of the Act.

    [6] Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467.

    [7] Chen Shi Hai v MIMA (2000) 201 CLR 293, at [20].

25. The Tribunal accepts that if the applicant were subject to bankruptcy proceedings and declared bankrupt he may have to give up belongings and assets in Malaysia, but does not accept that any actions taken in relation to bankruptcy proceedings, which the Tribunal finds would occur in accordance with Malaysian law, will result in the applicant suffering serious harm or significant harm upon his return to Malaysia. The Tribunal is not satisfied that any legal procedures in relation to his bankruptcy are such that there is a real chance he will suffer serious harm or significant harm.

26. The Tribunal also considers the applicant has embellished his evidence about what he fears will happen to him if he returns to Malaysia. During the hearing, the applicant stated he was scared of returning to Malaysia because he was scared of gangsters. However, as the Tribunal put to the applicant, the evidence he had provided to the Tribunal was that he owed money to a bank, not gangsters. The applicant did not dispute that he owed money to a bank, not gangsters  however he told the Tribunal that the debt collectors are like gangsters, the way they talk. He claimed that ‘they’ came to his house and they are ‘like gangsters’: he was threatened and sometimes he didn’t even sleep in his own home. He claimed that his wife was harassed and she was scared, as were his children. However, while the Tribunal accepts that debt collection agencies engaged by the bank may have contacted the applicant in an effort to recover the monies he owes to the bank, the Tribunal does not accept that the applicant is indebted to gangsters or that gangsters or debt collectors have ever threatened the applicant or his family members with serious harm or significant harm. The Tribunal Tribunal notes that the applicant’s evidence indicates his wife continues to live in the family home and, while it is possible she had been contacted in relation to her husband’s outstanding debts, the Tribunal does not accept that she has been harassed by gangsters or people like gangsters, or that she has been harmed or threatened with serious harm or significant harm.

1. Further, the Tribunal does not accept that the applicant was hiding before he left Malaysia and/or that he could not leave the family home because he was afraid of being threatened by debt collectors. As the Tribunal discussed with the applicant, he first travelled to Australia in 2016 and returned to Malaysia [a number of] weeks later, which suggests that he did not, at that time, fear returning to Malaysia. The applicant told the Tribunal that after he returned to Malaysia he received a further letter and telephone call concerning his outstanding debt to [Bank 1] and he was frightened. While the Tribunal accepts that the applicant received further communications relating to his outstanding debt in March 2017, the Tribunal notes that the applicant travelled to Australia a second time [in] May 2017 after being granted a [temporary] visa [in] March 2017. The applicant told the Tribunal that after he got the visa, he was very scared, he stayed at home and yet he couldn’t stay at home and he had to hide before coming to Australia. However, as was put to him, given he had a valid passport a he could have travelled to Australia at any time after he was granted the visitor visa. The applicant said even after he got the visa he was very scared; at that time he couldn’t even go to work and he bought a very cheap ticket to travel to Australia.  The Tribunal has considered the applicant’s evidence, but considers he has exaggerated the problems he experienced immediately before he left Malaysia and does not accept he was hiding from gangsters/debt collectors and/or that he was unable to leave the family home.

2. The Tribunal acknowledges that the applicant may experience financial stress and a degree of economic hardship if he returns to Malaysia. However as the Tribunal put to him it would appear that he would be able to continue living in the family home (which is owned by his mother-in-law). The Tribunal finds that, while it is possible the applicant may be restricted from carrying on a business, bankruptcy will not prevent him from finding other forms of employment and, having regard to his history of employment, and the Tribunal finds the applicant has the capacity to obtain employment in Malaysia. Furthermore, as the Tribunal put to the applicant that Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy. [8]  Malaysia recorded average annual economic growth of more than 7 per cent between 1967 and 1997, while growth in recent years has continued to exceed 5 per cent.[9] DFAT reports that the unemployment rate in December 2015 was 3.3 per cent[10] and the unemployment rate was still around 3.5 per cent.[11]   Economic growth has been inclusive, with less than 1 per cent of the population living in extreme poverty.[12] 

   [8] DFAT Country Information Report, Malaysia, 19 July 2016, p.5-6

   [9] ‘The World Bank in Malaysia’, The World Bank, April 2017, CISEDB50AD5041 and ‘The Growth Report: Strategies for Sustained Growth and Inclusive Development’, The World Bank, 2008, CIS956B8881704, p.20

   [10] DFAT Country Information Report, Malaysia, 19 July 2016, p.5-6

   [11] Department of Statistics, Malaysia, Official Portal,

   [12] ‘The World Bank in Malaysia’, The World Bank, April 2017, CISEDB50AD5041

3. Looking forward, having regard to what it has accepted of the applicant’s claims and personal circumstances and DFAT’s assessment of the Malaysian economy, the Tribunal does not accept that there is a real chance that, even if the applicant is subject to bankruptcy proceedings, that any economic hardship he may experience if he were to return to Malaysia will amount to serious harm. While the Tribunal has considered the applicant’s evidence that he needs to pay for his children’s education and that he is frightened of the consequences of bankruptcy, and accepts that he may encounter a degree of financial hardship, on the evidence before it, 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. Having considered the applicant’s claims and circumstances, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for any reason set out in s.5J(1)(a) of the Act or for any other reason 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, he does not satisfy the criterion in s.36(2)(a) of the Act.

4. 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.[13] The Tribunal is not satisfied that there are substantial grounds for believing as a necessary or foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk he will suffer significant harm. The Tribunal accepts that there is a real risk that the applicant will be subject to bankruptcy proceedings if he returns to Malaysia. However, for the reasons given above, the Tribunal does not accept that there is a real risk that the applicant will be detained/jailed and nor does the Tribunal accept that there is a real risk that the applicant will be subject to significant harm by gangsters/debt collectors. Nor, having regard to the definition of significant harm in s.36(2A) and s 5(1) of the Act, is the Tribunal satisfied on the evidence before it that the applicant will subject to significant economic hardship amounting to significant harm if he returns to Malaysia now or in the reasonably foreseeable future for any of the reasons claimed.

   [13] [2013] FCAFC 33

5. The Tribunal does not accept on the evidence before it that any of the consequences that may flow from bankruptcy proceedings being taken against the applicant (including the blacklisting of the applicant from obtaining further loans, the declaration of him as a bankrupt, and any requirement to repay his banks loan, or restriction on his capacity to travel for the period of his bankruptcy or operate a business, any requirement to repay his bank loans, or any economic hardship resulting from the applicant being declared bankrupt) would amount to significant harm as that term defined in s.36(2A) and s 5(1) of the Act. Specifically, as discussed with the applicant, it is not claimed and the Tribunal does not accept that the applicant will be arbitrarily deprived of his life or the death penalty will be carried out on him. Nor, on the evidence before it, does the Tribunal accept that there is a real risk that he will be subjected to torture or to cruel inhuman or degrading treatment or punishment if he is subject to bankruptcy proceedings or for any other reason. Furthermore, while the applicant may face bankruptcy if he returns to Malaysia, the Tribunal considers that any bankruptcy would arise from lawful sanctions that are not inconsistent with the ICCPR.

6. Having considered all of the applicant's claims and having regard to its findings of fact, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, or the death penalty will be carried out on him, or 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

7. 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).

8. 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).

9. 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

10. 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.

    …