1720646 (Refugee)

1720646 (Refugee) [2023] AATA 4051 (18 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720646
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Kate Millar
DATE:18 September 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 September 2023 at 10:40am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm or kidnap by estranged father – father imprisoned when applicant very young – father came to applicant’s school and relatives’ houses – unfamiliarity with education system – mother’s separate visa application refused and appeal to Circuit and Family Court in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H(1)(a), 5J, 36(2), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of Malaysia who is now [Age] years old. She arrived in Australia on an electronic travel authority (Subclass 601) visa [in] May 2017 and applied for a protection visa on 23 June 2017.
Her mother was already in Australia and has also applied for a protection visa which was refused. Her mother applied for a review of the decision to refuse her visa before this Tribunal (differently constituted) and the decision to refuse her visa was affirmed. Her mother has appealed this decision to the Federal Circuit and Family Court of Australia.
The applicant applied for the visa on the basis that she feared that her father would kidnap her if she returned to Malaysia.
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant appeared before the Tribunal on 3 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from her mother [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.
BACKGROUND
The applicant’s parents were married on [Date], and the applicant was born in Seremban Malaysia, on [Date]. She has an auntie and two cousins in Australia but is estranged from these relatives due to a family argument.
Her grandmother is in Malaysia, and they speak a few times a month. She has two aunties in Malaysia; one is in Seremban and one in Kuala Lumpur, and an uncle. Her uncle lives with her grandmother as he was injured in a car accident where he broke some bones and had surgery. Her uncle is unable to talk properly and has had a lot of stitches in his mouth, but he will get better. Her grandmother finds it hard to walk.
In mid May 2007, when she was approximately [Age], her father left. She attended a Chinese school and learned Chinese and Malay up to Year [Number], or approximately [Age] years old.
[In] October 2012, her mother arrived in Australia, and her mother applied for a protection visa on 10 September 2016.
The applicant arrived in Australia [in] May 2017 and applied for a protection visa on 23 June 2017.
On arriving in Australia, the applicant lived with her mother in country South Australia before her mother and her mother’s partner found work in [Region], and they relocated in 2019. They have lived in other places in rural NSW before returning to [Region].
Her mother has a newborn baby with her current partner who is a citizen of [Country]. He has also applied for a protection visa.
THE HEARING
The applicant is now [Age] years old. Her mother, who does not speak English, was listed as her representative.
The applicant was asked to provide information before the hearing about her current claims, but did not respond and the matter was listed for hearing.
The Tribunal wrote to the applicant’s mother as her representative before the hearing to advise that it may wish to speak to the applicant separately from her mother, and that she may wish to bring a support person to be with the applicant in the hearing room.
At the commencement of the hearing, the applicant and her mother were offered an adjournment to have a support person present with the applicant while she gave evidence. This offer was declined. The applicant was advised she could ask for a break or seek an adjournment to have a support person with her at any stage.
CLAIMS
The applicant’s mother completed her application for protection and stated that the applicant needs to be protected from being kidnapped by her father as he was going to her school to try and kidnap her and threatened the applicant and her teacher. Her mother claims the applicant is scared because she does not know her father and he was affected by alcohol and drugs. Her mother claims she fears that the applicant’s father will sexually exploit her as he will do anything to get drugs.
The applicant’s father left the family when she was [Age] when he went to jail.
In 2017, her father came to her school in the morning. She did not know who he was and did not know what he looked like because he left when she was [Age]. She was scared and told a teacher who ran after her father. Her. The teacher did not report her father to the police.
At lunch time she was called to the school office. She learned that the person who approached her was her father, and that father had punched the teacher who retreated to the school. Her teachers knew it was her father because they asked his name and he told them it was [Mr D]. The director looked up her details and saw this was her father.
The applicant told her cousins who attend the same school, and her cousins made sure they were with her the whole day. At the end of the day, she was walking out of school and saw her father with three to four other men standing near a car. She ran to the bus and told her cousins, and then told her grandmother when she got home.
That day or the next day her teacher came and talked to her grandmother, and they spoke to her mother over the phone. She cannot remember the name of the teacher who came.
Her grandmother thought it was a good idea for her to stay at her [auntie’s] house which was about an hour away. The next day it was all fine, but the following day her father came to her auntie’s house as he had found out she was there. He somehow called or texted her auntie and said he was going to come to the house. She did not feel safe because he was involved in drugs and went to stay with another auntie.
Her father again found out she was with her other auntie because he had a friend who lived in the area. He came to the house and was telling her auntie to let her come out so she could talk to him. She didn’t want to do that because she was scared. Her father threatened her auntie and said he would ‘get people to come and bash her up or stab her’. She did not know this until later as she was too young for them to tell her the whole story. When her auntie said to her father that she was not there he left.
The family got together and went to the police station to make a report. The police asked what happened and she told them everything. They returned to her grandmother’s house and called her mother. The next day her mother called her grandmother, and they booked a flight for her to come to Australia. She remained in Malaysia less than two weeks at her grandmother’s house before she left to come to Australia.
She did not see her father in that time but after she left Malaysia, he went back to her grandmother’s house and was threatening her grandmother. She does not know the last time anyone saw her father.
The applicant said she cannot return to Malaysia because she is not safe. She cannot live with her grandmother because her grandmother is sick. Her uncle was in a car accident and her grandmother is caring for her uncle. School will be hard for her because she does not remember Chinese and does not know how to write in Tamil.
The applicant does not think the police will protect her, and it is a small town where everyone knows each other. She does not know where her father is, but he would know if she returned because he knows everyone in the town. In 2021 her auntie in Australia told her that her husband, who was in Malaysia, said he had seen her father around the house. Her family is in Australia and her father is in Malaysia.
DOCUMENTS
The applicant provided:
·     A copy and translation of her birth certificate.
·     A copy and translation of her parents’ marriage certificate.
·     A copy and translation of a police report dated 8 April 2010 at 10:56pm from [Ms A] (the applicant’s mother).
·     A statement which is said to be from her grandmother and uncle signed ‘sincerely from her mum’.
·     A copy and translation of a police report dated 10 May 2017 at 6:15pm from [Ms B]. The applicant states this is her grandmother.
·     A copy and translation of a police report dated 11 May 2017 at 8:37pm from [the applicant – variation of spelling], daughter of [Mr D]. The applicant states this is a variation on the spelling of her name.
In response to the letter issued under s 424A of the Act, the applicant provided:
·     A further written submission
·     A photograph of a from with handwritten details entered of a funeral arrangement for [Ms C] which records a date of death of [August] 2023.
·     A document on an illegible letterhead stating [Ms C] died of severe bronchopneumonia with [illegible]. The applicant says this is her aunt who she stayed with when trying to hide form her uncle, and her aunt died the day after the hearing.
·     A photograph of a woman next to equipment and with nasal prongs suggesting oxygen, which the applicant says is her grandmother who was admitted to hospital because she is having trouble breathing. A discharge summary is provided stating [Ms B] was admitted for one day due to upper respiratory tract infection with bronchospasm.
·     Photographs of an injured man and discharge summaries for [name deleted] stating he had a closed fracture of his right ulna with radio humeral dislocation and fracture of his right distal radius. The discharge summary shows an admission for two days . An admission agreement shows a scheduled admission for 5 days for orthopaedic surgery, however there is no discharge summary form this admission.
·     A document which the applicant states is her father’s police report which her mother had obtained, and a translation of this document. This is not on a letterhead. No explanation is provided for the offences for which it is recorded he was punished. The applicant states her mother was able to get her father’s record printed out at the police station, but they would not give her his full police file unless her mother was in Malaysia to get it.
·     A statement that says it is from the applicant’s primary teacher dated 8 September 2023. The applicant says her mother was able to get in touch with her teacher who provided a statement.
·     Identity cards of her grandmother and her uncle
FINDINGS OF FACT
The applicant claims to fear her father after he came to her school and to her grandmother’s house and to her aunt’s house.
The applicant’s mother gave evidence that she came to Australia because her husband was physically abusing her. A police report was provided dated 8 April 2010 that states:
On 08/04/2010 at approximately 7:10pm., while I was at home at [Address], Seremban, my husband [Mr D] arrived to discuss our domestic problems. During the discussion I asked him for a divorce as he is a drug addict as well as unemployed. During the discussion misunderstanding arose and he became angry. After that he immediately left my house. Due to this matter, I have come to lodge a police report because I am worried about my safety and that of my family in the future.
The letter from the applicant’s grandmother and uncle states:
My name is [Ms B] and I am [Age] years old. This letter is in regards of my daughter [Ms A], I have total 7 kids. Two of my elder sons have passed away in 1993 and 2008 respectively. I have been separated with my husband for a donkey years and one of my younger daughter is with my husband. My kids been running the family once they have grown up. On [Year] my daughter marriage took place, after three months of marriage journey my daughter got to know that her husband is a drug addict and he don't do any work to support the family, my daughter will work hard to support her husband, husband's family and my her siblings. She use to work hard to pay all the debts that her husband took from loan sharks and from others. After she give birth on [Date] in the same year after couple of month my husband have been arrested, and she start to stay away from him and lives with me and my kids. After her husband got release he start to give problem to my daughter that he want her to come back to him and support him back, he even threatened that he will hurt her and her daughter. He had try few attempts to enter inside my house to hurt my daughter and her daughter. After that we have lodge a police report towards him, however no action been taken. Even till now its not safe for her and her daughter to come back Malaysia because her husband and his family searching for them every single day and even make noise in front my house that he will kill her and his daughter if he see them. We even had move our daughter within Malaysia but they still manage to find them. In that case we have send them to Australia for protection. Its not safe for them to com back Malaysia even if they had help in Malaysia because they will keep facing more problem and it not even safe for her and her Kid. I hope with the above mentioned details is sufficient, and seeking your kindness to keep them safe in Australia.
The police report from the applicant’s grandmother dated 10 May 2017 at 6:16pm states:
On 09/05/2017 at approximately 1400 Hrs I was informed by a teacher from [School], [Location], that my former son-in-law named [Mr D] wanted to take his child who is my grandchild named [the applicant] age [Age] from the school at about 0730 Hrs. It has been 9 years since he left her without any news as he is a drug addict. My grandchild did not know him and did not want to go with him. As her grandmother, I have been entrusted by my daughter named [Ms A] to raise this grandchild from the time she was small until now because my daughter works overseas, that is, in Australia. Due to this matter I have come to lodge a police report out of fear for my grandchild's safety because her father is still a drug addict and I am afraid that something might happen to my grandchild and my whole family because he also came to my house 2 days ago. This is my report.
The police report from the applicant dated 11 May 2017 at 8:37pm states:
At approximately 0900 Hrs on 11/05/2017 while I was at [School], [Location], my father named [Mr D] arrived and caused a commotion in the school compound, scolding some teachers because they did not allow me to get into his car. At about 1630 Hrs on 11/5/2017 a female teacher [came] to my house and said that all the teachers were afraid because my father had appeared drunk when he came to the school and she told my grandmother that the teachers drove my father away during that incident. The female teacher also told my grandmother to look after me carefully, and that if anything unpleasant should happen in the school, the teachers can be responsible, and if anything happens out of school, the school authorities will not be responsible. After hearing what the teacher said, I do not want to attend school anymore because I am afraid something bad might happen to me. I have never lived with my father since I was small, and it is only this week that I found out that this man is my father.
The language in the report seems unusual for a [Age]-year-old child, with the applicant reporting that the teacher said if anything happened, they would not be responsible, and the school authorities will not be responsible if anything occurs after school.
The applicant’s mother gave evidence that she last saw the applicant’s father two months before she came to Australia, having arrived in Australia in 2012. She said her mother, the applicant’s grandmother, last saw her husband when he went with other men to her mother’s house. When her husband went to the house, he was accusing that because she had left her daughter, he wanted to take his daughter. She said that if her husband takes the applicant, he will sell her to a drug dealer. On being asked for more detail about what happened when he went to the grandmother’s house, she said he quarrelled with the grandmother and wanted to take the applicant. He was aggressive and under the influence, but he left and said he would come back again. After that she would not send her daughter to school.
The information that police reports from the applicant’s mother, grandmother and from the applicant herself were on her mother’s file and not provided by the applicant in her matter. As a result, information was provided to the applicant under s 424A of the Act that these reports do not state her father attempted to enter the property to try to take her. They do no refer to an attack on a schoolteacher. Copies of the police reports were provided to the applicant. The Tribunal explained that if this occurred, it would expect this to be recorded in the police reports, and that if it relied on the police reports (among other things) it would find that when her mother argued with her father, or her grandmother refused to let him see her, her father left and this does not show she would be at risk of harm from her father if she returned to Malaysia.
The applicant provided a letter which she says her mother was able to obtain from her primary school teacher. This states that on 11 May 2017, the applicant’s father came to the school and was looking for the applicant. The teacher says the applicant told her when class started that when she saw her father, she was frightened and told a male teacher who ran after her father and asked for his identification. It is stated the applicant’s father threatened the teacher and did not show him the ID even though the male teacher kept asking for it. The male teacher finally got the father’s ID to prove he is the applicant’s father. The teacher reports that the same day after school she went and spoke to the applicant’s guardians as the applicant looked scared during the incident and spoke to the applicant’s mother by phone. The teacher states she is sure they went to the police station to report the incident. She goes on to say a couple, of days later the applicant’s father returned to the school and while the school administer would not let him see her at first and he started scolding her fiercely. The school administrators let him talk to the applicant as he was her biological father and called her to the office to speak to him for a few minutes then he father left the school. The teacher states she is not sure what happened after this as the applicant dfid not return to the school and the school could not contact the applicant or her mother.
The Tribunal accepts that the teacher came to her grandmother’s home because they were concerned about her father attending the school.
The Tribunal accepts the applicant’s father went to her school when she was [Age] years old and wanted her to go with him. As it is not mentioned in the teacher’s statement, the Tribunal rejects the teacher was afraid of him because he appeared drunk. However, he left when the teachers arrived. The Tribunal rejects the claim the applicant’s father punched a teacher as this is not reported to the police by the grandmother, the applicant or the teacher. The Tribunal does not accept that if this occurred it would not have been reported. The Tribunal finds that after being given a few minutes with the applicant he left the school.

The Tribunal accepts the applicant’s father has some form of criminal history and accepts her account that this is due to drug or alcohol use.
It is accepted that the applicant’s father went to her grandmother’s house, and that it is possible he went to her aunt’s house.
The Tribunal does not accept that the applicant’s father entered her grandmother’s house or attempted to enter the house to access the applicant in 2017. This is not consistent with the applicant’s evidence that her father went to her grandmother’s house but left when she would not go out to see him. The applicant gave evidence that he went to her aunt’s house and left. If he had attempted to enter the house, this would be included in the police reports made by the applicant and her grandmother. The letter from the applicant’s grandmother is not supported by the mother’s police report in which she states that he left the house when he became angry. It is written in English and is stated to be written by ‘her mum’ (i.e. the grandmother) and the applicant’s uncle.
The information contained in the statement from the grandmother and uncle appears on the applicant’s mother’s file. The information that the letter from the grandmother and uncle states that her father did try and enter the house was provided to the applicants, together with the information that the document is undated and written in English when her grandmother is reported to have required an “Indian” interpreter when she spoke to police, and this may result in the Tribunal placing little weight on this document. The applicant provided a copy of this letter to the Tribunal and said she could show the date from when her mother received the email, however the date is not specified, and the email is not attached. The Tribunal places little weight on this document.
The Tribunal finds that the applicant’s father had approached her school and at the places she was living and wanted her to go with him or to speak with him. When she refused, or the teachers intervened, he went away.
The Tribunal accepts he may have approached he grandmother since she left Malaysia to ask about her but does not accept he has threatened to kill or harm her.
While the Tribunal appreciates that the applicant and her mother are concerned about her father’s drug use, it does not accept their assertions that he would forcibly take the applicant or sell her to fund his drug habit. This is not consistent with the evidence that the teachers intervened so that she did not go with her father, and that he left after wanting to see her at her grandmother’s house and aunt’s house when refused.
The Tribunal accepts that the applicant does fear her father seeking to contact her at her school or where she is living and that he may be intoxicated or under the influence of drugs when he does so.
If she retuned to Malaysia, the applicant will return to live with her grandmother, either with or without her mother. The Tribunal rejects the claim that her grandmother is unable to care for her as her grandmother is currently caring for the applicant’s uncle, and while admitted overnight with an upper respiratory tract infection is able to provide supervisor for a [Age]-year-old. The Tribunal finds the applicant has a place to live and will be supported by her family as she was while she lived in Malaysia after her mother left.
The Tribunal accepts that the applicant may face some difficulties reintegrating into the school system in Malaysia having undertaken her education in Australia since she arrived in 2017.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is:
·     a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion; or
·     is a person in respect of whom Australia has protection obligations 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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Is the applicant a refugee?
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if:
(a)they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance they would be persecuted for one or more of those reasons; and
(c)the real chance of persecution relates to all areas of the relevant country.
Additional requirements relating to a ‘well-founded fear of persecution’ are set out in ss 5J(2) – (6) and include where effective protection measures are available to the person, in certain circumstances if the person can modify their behaviour.
If a person fears persecution because of their race, religion, nationality, membership of a particular social group or political opinion the reason must be the essential and significant reason or reasons for the persecution, the persecution must involve serious harm to the person and the persecution must involve systemic and discriminatory conduct.
Serious harm includes a threat to the person’s life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services where the denial threatens the person’s capacity to subsist, and denial of capacity to earn a livelihood of any kind.
A person is taken not to have such a fear (as set out in ss 5J(2)-(6) and ss 5K-LA) is extracted in the attachment to this decision.
To the extent she may fear harm because she will need to reintegrate into the Malay education system and is a member of a social group of people who have been away from the Malay education system for a period of time, the Tribunal is not satisfied this amounts to serious harm as contemplated by the Act.
To the extent that she may fear harm as a group of people who are under 18 years of age, the Tribunal has found the applicant can return to live with her grandmother and finds she will not face a threat to her capacity to subsist.
On the basis of the findings made by the Tribunal, the applicant does not fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Is the applicant owed protection obligations on other grounds?
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)
In this case, it is useful to consider the types of harm that are significant harm for the purposes of the Act, given the Tribunal has found that the type of harm feared by the applicant is that her father will attend her school, her grandmother’s house or her aunt’s house and ask to see her or ask her to go with him.
The meaning of significant harm is set out in s 36(2A) and includes where the person will be arbitrarily deprived of their life, or the death penalty will be carried out, the person will be subjected to torture, or cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment.
The term ‘torture’ is defined in s 5 of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is imposed on a person for certain purposes.
‘Cruel and inhuman treatment or punishment’ is defined in s 5 of the Act as certain acts or omissions by which severe pain or suffering, whether physical or mental, is intentionally imposed on the person, or pain or suffering is imposed as long as in all the circumstances the act or omission could reasonably be regarded as cruel or inhuman.
‘Degrading treatment or punishment’ includes certain acts or omissions that cause, and is intended to cause, extreme humiliation which is unreasonable.
The circumstances in which a person will be taken not to face a real risk of significant harm, are set out in s 36(2B) and are where it is reasonable that the person can relocate to an area of the country where there would not be a real risk the person would suffer significant harm, the person can obtain from an authority of the country protection such that there would not be a real risk the person would suffer significant harm or the real risk is one faced by the population generally and not by the non-citizen personally.
In this case, the Tribunal does not accept the claims that the applicant’s father will kidnap her or exploit her sexually for money or sell her. It does accept that he has attempted to contact her and communicate with her which causes some mental stress and fear.
The Tribunal is not satisfied that the stress and fear that the applicant may face on her return to Malaysia is significant harm as defined by the Act and finds she does not meet s 36(2)(aa) of the Act.
Member of the family unit
Under s 35(2)(b) and (c) of the Act a non-citizen meets the requirements for a protection visa if the person is a member of the family unit of a person who holds a protection visa of the same class as that applied for by the applicant and meets the refugee requirements or the complementary protection requirement.
The applicant’s mother has applied for a protection visa which has been refused. This is the subject of an appeal to the Federal Circuit and Family Court of Australia. At the time of this decision, the applicant is not a member of the family unit of a person who is mentioned in s 36(2)(a) or s 36(2)(aa) of the Act, and she does not meet the requirements in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Millar
Senior Member

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

[2023] AATA 4051

18 September 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction