1721757 (Refugee)

1721757 (Refugee) [2021] AATA 5146 (17 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1721757

COUNTRY OF REFERENCE: Malaysia
MEMBER:Michael Hawkins AM
DATE:17 December 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 December 2021 at 4:23pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of criminal gang – attacks on home – fear of killing – state protection – police actions against criminal gangs – did not attend hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 426A, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 866.211
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 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 who claims to be a citizen of Malaysia, applied for the visa on 13 April 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
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 either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is [an age]-year-old national of Malaysia.
The applicant first arrived in Australia [in] February 2017 pursuant to a visitor visa and she has remained onshore since.
The applicant applied for a protection visa on 13 April 2017 and the application was subsequently refused by a delegate of the Minister for Home Affairs in a decision made on 23 August 2017.
The applicant applied for merits review of the delegate’s decision on 14 September 2017.
Claims:
The applicant’s claims are summarised in her protection visa application form and the delegate’s decision.
The applicant claims she chased two people in her car after she witnessed them taking a woman’s handbag in traffic. She claims she hit them off their motorcycle and one of them were injured. She claims the person who got injured was “sent to police station for detention” and the other person escaped.
The applicant claims that after this incident, her car tires went missing and red paint was splashed onto her car. She claims to have received harassing phone calls saying they are from the [Gang 1] group. She claims they blamed her for getting their member into trouble.
The applicant claims that members of the [Gang 1] group harassed her at her workplace and locked her and her colleagues in the office.
The applicant claims if she returns to Malaysia, she may be seriously injured or killed by [Gang 1] members.
The applicant claims she lodged a police report and was told they would investigate the matter, however they did not take any action.
The applicant claims Malaysian authorities would be unable to protect her if she returns to Malaysia, because “[Gang 1] is supported by a political party in Malaysia”.
The applicant claims she would not be able to relocate if she returns to Malaysia, because they would be able to locate her wherever she goes.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
a)the applicant’s protection visa application form, which was lodged on 13 April 2017;
b)the applicant’s identity documents provided to the Department, being her passport;
c)the protection visa decision record dated 23 August 2017 (delegate’s decision);
d)the application for review form, which was lodged on 14 September 2017 and included a copy of the delegate’s decision;
e)Department file [number] concerning the applicant’s protection visa application; and
f)country information on Malaysia, referred to below.
Country of reference / receiving country:
The applicant claims to be a citizen of Malaysia. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
On 10 November 2021, the Tribunal wrote to the applicant advising that it had considered the material before it, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments in support of her case at an in-person hearing to be held on 17 December 2021. The hearing invitation advised that if she did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or without taking further action to enable her to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant.
On 3 December 2021 and 10 December 2021, the Tribunal sent hearing reminders to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response.
On 3 December 2021, a Tribunal Officer contacted the applicant on the mobile number provided in the application for review with the assistance of an interpreter in the Mandarin and English languages. After confirming the applicant’s identity and that she understood the interpreter, the Tribunal Officer advised her that her case has been listed for an in-person hearing to be held on 17 December 2021. The applicant advised that her solicitor manages her email address and that she would contact her solicitor later that day to discuss the upcoming hearing. The applicant said she could not confirm her attendance until she had discussed the matter of the hearing with her solicitor. The Tribunal did not receive any further contact or correspondence from the applicant.
On 10 December 2021 and 16 December 2021, the Tribunal sent hearing reminders to the applicant by SMS via the mobile number provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response.
The applicant did not appear before the Tribunal on the day and at the time and place she was scheduled to appear. The applicant failed to provide any reasonable explanation as to why she could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
Accordingly, this matter has been determined on the evidence available to the Tribunal.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal also notes that the recent decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has carefully considered the applicant’s claims as detailed in her application for a protection visa, both individually and cumulatively. The applicant did not take the opportunity to attend the hearing, and she did not provide additional information in support of her claims, even after having been advised of the delegate’s decision. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
Without the benefit of the hearing, the Tribunal is unable to be satisfied of the claims raised by the applicant in her application, or how they are said to invoke Australia’s protection obligations. Her claims did not raise a fear of serious harm as defined in s.5J(4)(b) and s.5J(5) of the Act, or that a fear of harm was for one of the reasons in s.5J(1)(a) of the Act. Had the applicant attended the hearing, the Tribunal would have asked for further detail about her claims, affording her an opportunity to provide further information and to explain how her claims might relate to the refugee criteria.
On the material presented, the Tribunal has insufficient evidence as to:
·The circumstances under which she elected to give chase to two people in her car;
·The circumstances under which she struck the two people;
·The nature of the arrest of one of the assailants;
·The nature of the police report made by the applicant and evidence thereof;
·The nature of the harassment against her and harassment of her colleagues;
·Details of the damage to her vehicle;
·The nature of the relationship between the assailant and the [Gang 1] members;
·Why she could not relocate elsewhere in Malaysia; and
·Details as to why she did not seek protection in Malaysia.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal has had regard to the following country information regarding gangs and state protection in Malaysia.
The Department of Foreign Affairs and Trade’s[1] latest country information report on Malaysia reports the following relevant to the applicant’s claims:
2.47 Malaysian media citing official police statistics in early 2018 reported that over 100 illegal gangs, with an estimated 9,000 members, operated in Malaysia. Of these gangs, 65 were reported to be Chinese Malaysian, 20 were Malay and 18 were Indian Malaysian-run gangs. DFAT is not able to verify these statistics. Sources report many street-level gang members are Indian Malaysians, reflecting their relative economic vulnerability. High-level crime, including drug trafficking, is more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan shark practices. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them.
5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption…
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.9 The then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. SUHAKAM also receives complaints against the RMP, and has investigated police behaviour. The government is not formally required to consider SUHAKAM’s reports or recommendations…
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’ (29 June 2021)
Recent country information from external sources indicate that in Malaysia there are on-going police operations target criminal gangs and crime syndicates. In recent years, police report to have made an increasing number of criminal gang-related arrests.[2] Numerous media reports show that targeted police operations disrupt gang criminal activity across the country.[3] Police operations of this nature have been occurring for a number of years.[4]
[2] ‘KL police prosecution, case-solving rate up since 2018, says city police chief’, Malay Mail, 7 September 2020.
[3] ‘Cops nab 11 suspected members of Gang 35 in Kulim... following TikTok video on Father’s Day celebration’, Malay Mail, 22 June 2021; ‘Seven men charged in Ipoh over alleged involvement in gang-related activities’, Malay Mail, 6 May 2021; ‘Cops rearrest 25 members of ‘TCB 21’ gang over several serious crimes in KL’, Bernama, 13 November 2020; ‘Police bust ‘Muniandy Gang’ as eight nabbed for spate of burglaries around Hulu Selangor’, Bernama, 13 November 2020; ‘Cops detain 29 suspects allegedly involved in gangsterism, organised crime in Selangor’, 5 November 2020; ‘Sungai Buloh police remand 13 for various crimes’, Bernama, 26 October 2020; ‘Police bust Jamil Kancil burglary gang in Kulim’, Bernama, 11 October 2020; ‘Miri cops bust two burglary gangs, solve 24 cases’, Borneo Post Online, 9 October 2020; ‘Johor cops nab seven Gang 21 members linked to shooting-cum-robbery’, Malay Mail, 30 September 2020; ‘Selangor police cripple Weng Gang, arrest 13 including leader’, Bernama, 28 September 2020.
[4] ‘Notorious AYT 99 gang crippled by cops, gun used in 2017 shooting of ex-AG’s driver among firearms seized’, Malay Mail, 17 February 2020; ‘Cops to charge 10 over crime spate, including murder’, The Star, 7 April 2020; ‘Cops nab Gang 08 members for extortion’, Malay Mail, 27 February 2019; ‘Police: Those sporting gang tattoos can be arrested’, Bernama, 25 February 2019; ‘Gang 08 members arrested for extortion’, The Sun Daily, 27 February 2019; ‘57 go on trial in Kajang Prison for alleged links to Gang 360 Devan’, Bernama, 6 September 2018; ‘Datuk Seri and Datuk among 36 charged with being members of Gang 08’, The Sun Daily, 27 April 2018; ‘3 cops held as 08 Gang, 18 Gang busted’, The Sun Daily, 9 April 2018; ‘Chinese have the most gangs; Indian gangs the most members: Police’, The Sun Daily, 11 March 2018; ‘36 suspected underworld gang members arrested in Malaysia’, Bernama, 20 February 2018.

As the applicant did not appear and provide any evidence in relation to her claims, and on the material available, the Tribunal cannot be satisfied that the applicant has suffered any harm or has been threatened with any harm, by any assailant or member of the [Gang 1], and nor that she has any well-founded fear of serious or significant harm should she return to Malaysia now or in the reasonably foreseeable future.
As the applicant did not appear, and on the material available, including country information, there is nothing before the Tribunal to indicate that the applicant will not be able to access protection from state authorities, were she to require protection from the assailant or member of the [Gang 1] or other people commissioned by them. Country information indicates that the protection available is durable and that the protection includes appropriate criminal laws, a reasonably effective police force and an impartial judicial system.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of any conflict with any assailant or member of the [Gang 1], or any other reason if she returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to Malaysia. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that she will suffer significant harm?
The Tribunal has considered the applicant’s claims under complementary protection.
Having regard to the findings above, the Tribunal cannot be satisfied that the applicant left Malaysia because she feared significant harm. The country information is to the effect that effective state and community measures directed to the substance of her claims are reasonably available.
In view of these findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she is removed from Australia back to Malaysia now, or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Malaysia now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Her fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that she will suffer significant harm.
Overall Conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins AM
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.
…

[2021] AATA 5146

17 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing