1722265 (Refugee)

1722265 (Refugee) [2023] AATA 2072 (6 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1722265

COUNTRY OF REFERENCE: Malaysia
MEMBER:Mark O'Loughlin
DATE:6 April 2023
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 April 2023 at 3:16pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – witness to a drug crime – physical assault – fear of killing – economic conditions – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 23 August 2017, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. This is the review of that decision.
The applicant applied for the visa on 20 April 2017. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant is a refugee or that he faces a real risk of significant harm and is not therefore owed protection by Australia.
The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal to give evidence and present arguments on 1 November 2022. The applicant could not attend the hearing in time due to his car breaking down between [a location] and Adelaide and so the hearing was not completed on that day.
The hearing resumed via video link on 22 November 2022 and the rest of the evidence was taken.
The Tribunal was assisted by an interpreter in the Malay language.
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that he is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, to succeed, the applicant will need to satisfy s36(2)(a), the “refugee criterion” or s36(2)(aa), the “complementary protection” criterion.
Mandatory considerations
In accordance with Ministerial Direction No.84 made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
Claims
Protection Visa Application form
The applicant set out his claims in the PVA he signed on 2 August 2016 at his answers to questions 88 to 96. The Tribunal summarises the claims in the PVA in this way:
a.The applicant was out with some friends at a club and had parked his car a few blocks away.
b.After an hour and a half with his friends he returned to his car to get his mobile phone.
c.To get to his car he had to go down a dark lane, where he saw a group of men.
d.He saw that they were exchanging a huge amount of money and drugs and could immediately see that it was a big mafia drug sale.
e.It was too late for him to hide and they saw him.
f.They surrounded him and beat him.
g.They are going to kill him because they are afraid he will report them to the police.
h.He begged for mercy and was released on the condition that he promised to go far from Malaysia.
i.They were going to kill him and the whole of his family.
j.Then next thing he knew he was waking up and all of his friends were there. He had collapsed because he had been hit hard on the head.
k.From what he heard they were a big group of mafia that will not hesitate to carry out their threats.
l.He believes that if he returns to Malaysia they will kill him and his whole family.
m.He did not seek help in Malaysia as there is no one there who would dare to get involved with this mafia tycoon.
n.He does not dare seek help in Malaysia because he does not want to involve any other people in his problems.
o.He did not try to relocate in Malaysia because the people who threatened him told him to leave Malaysia, so they will kill his family if he just relocates.
p.He believes that the mafia have threatened him and because he has been beaten by them he believes they would kill him if he returns and his family life would be miserably sad.
q.He does not believe the authorities will help because he is concerned that the authorities are colluding with the mafia. He does not believe it would be safe to ask the authorities for protection.
r.He believes he cannot relocate in Malaysia because the mafia group has a huge link to the whole of Malaysia and can easily find him.
Before the matter was listed by the Tribunal the applicant was invited to add to or update the claims in the PVA. The applicant responded by email on 19 July 2022 but did not expand on the claims in the PVA. He said he would do so orally at the hearing.
Applicant’s Evidence to the Tribunal
At the first hearing on 1 November 2022 the Tribunal asked the applicant why he did not want to return to Malaysia.
He said he was not ready to go back and that the economy there is not good and his family is not well off.
The Tribunal asked if there were any other reasons. The applicant said that employment opportunities in Malaysia are not very favourable.
The applicant was asked why he left Malaysia. He said people who were dealing in a business that was not legal and who were concerned that he might disclose that to the authorities may come looking for him.
The Tribunal asked whether it was now the case that he was not prepared to go back because of the Malaysian economy. He said that is true. The Tribunal asked whether he means that he is no longer at risk from the people who were breaking the law. He said that he is also scared of them so that is another reason not to return.
The Tribunal asked him to explain what he had seen.
He said he saw people “carrying out the business, doing what they were doing.”
When asked to elaborate he said they were doing “something like drugs”.
He thought perhaps they were selling drugs.
The Tribunal asked what he had been doing when he saw them. He said he was going fishing and he saw the people in the area near the bush.
The Tribunal asked the applicant whether he had filled out the Protection Visa Application form, but he said a friend had filled it out for him. He said the friend is named [Friend A] and he met him in [South] [Australia]. He said [Friend A] has gone back to Malaysia.
The applicant said he did not know what [Friend A] had written in the application form.
When the hearing resumed on 22 November, the applicant could not comment on what was in the application form so the Tribunal asked him to say why he did not want to return to Malaysia.
He said the economic situation in Malaysia is not good. He said the other reason was because of the time he went fishing and saw a person selling drugs.
He said that the incident happened at about 1.00 pm on a Saturday. The applicant was in [a location] near the river [named].
He said he had a job at the time working [in industry 1] making about $100.00 AUD per week.
He said he was walking from his house to the river which takes about 6 minutes by car. He had parked and was walking from the car to the river.
He said that it was in 2016 and it was during the dry season but was not able to say more accurately when the incident was.
He said he cannot remember when the dry season months are in Sabah because he has been in Australia for too long. After an internet search he agreed that the dry season months are generally February to August but that sometimes there is not much difference between wet season and dry season.
He said he was sure it was the dry season but was not prepared to swear that it was between February and August.
He said the path from the car park area to the river was a village area. The road was not a busy one.
He said there were 2 people involved in the drug sale. He said he did not recognise them.
The Tribunal asked how close the applicant had come to the people. He said he does not remember and that he is absent minded.
The Tribunal asked how he knows the people were selling drugs and he said they were dealing with drug packages, which he described as being plastic and wrapped and also having papers.
The Tribunal asked how far away he was from the people when he first saw them. He replied that he doesn’t remember.
The applicant said that the people saw him and he ran away. He said he was not able to guess how big the packages were because he was too far away.
He said that he people had a samurai sword and a knife. He said they chased him.
The applicant said he threw his fishing gear and rod away to make his escape easier.
The Tribunal asked where he had run to. He replied that he had not run to his house, but he had gone somewhere else.
The Tribunal again asked where he had run to. He replied that he does not know,that he cannot remember. He said he went many kilometres before he felt safe but it is too long ago and he does not remember where he went.
The Tribunal asked the applicant what he had seen in the drug deal. He replied that they were packing.
The Tribunal asked what they were packing. He replied “Drugs”.
The Tribunal asked how he knew it was drugs. He replied that it was a fishing area and they were packing drugs and he knew it was drugs.
The Tribunal again asked how he knew it was drugs. He said because it was in a white transparent pack.
The Tribunal asked the applicant what he could see. He said he could see white colour stuff inside, which was the drugs.
He said he does not know what type of drugs were being sold, just that they were white.
He was asked if he could see it was drugs in the package and he said there were two packages, one was in transparent wrap and the contents were white. The other was wrapped in newspaper and he could not see what it contained.
He said all he could remember was that 2 people were packing drugs.
He did not remember seeing any cash there.
The Tribunal told the applicant that his evidence about the drugs was not very strong and asked if there was any more detail he could provide. He said he could not.
The Tribunal asked whether the people threatened him with the knife and sword or at all. He said they did not and that he ran away.
The applicant insisted that the people saw him before he ran away. When asked how he knows they saw him, he replied that they saw him.
He said that he was nervous and ran away. He believes they had weapons in their hands and be believes they must have threatened him because he ran away.
He was asked if he ever saw them again. He said he can’t remember and that it was a long time ago.
The Tribunal asked the applicant whether the people know who he is. He replied that he does not remember and that it was a long time ago.
The Tribunal advised the applicant that it was trying to find out why this incident made him reluctant to go back to Malaysia now. He said it was one reason and another reason was because his employer had gone into liquidation and there was no more work.
The Tribunal repeated that it was trying to see why the applicant was scared of the people who he had said were packing drugs. The Tribunal put to the applicant that there was nothing in the applicant’s evidence to suggest that the people know who the applicant is.
The Tribunal also put to the applicant that the incident was now a long time ago.
The Tribunal said that on the basis of those factors the Tribunal was not satisfied that the applicant’s fear of the people he said had been packing drugs is a reason he cannot go back to Malaysia.
The Tribunal asked the applicant if he had any reaction or comment on that observation. He said he did not change his evidence.
The Tribunal suggested to the applicant that the main reason he wants to stay in Australia is because of the state of the Malaysian economy. The applicant insisted that there were 2 reasons but said he had nothing to add about the incident with the drug dealers.
The Tribunal asked the applicant about the economic situation in Malaysia.
The applicant said he had joined [industry 1] after he left school at [age] years of age.
He said he worked there for [number] years until 2016.
He said he believes he arrived in Australia in 2016. He said he decided to come to Australia when he realised the [company] he was working for in Malaysia was going bankrupt.
He said he had enough savings to come to Australia although he could not remember when he had started saving to come.
He said he cannot remember how long he had known the [industry 1] company was going bankrupt but he knew it would happen because he worked there and could see it coming.
He said that he makes about 8 times as much in Australia as he had been making in Malaysia and he used to send money back, although he had not done so in the last year.
He said he did not want to return because there are no job opportunities. He said even his siblings are having trouble finding work and that it is the same for everyone back at his home.
He said he had not tried looking for work in Peninsular Malaysia because he was from Sabah, but he understands that there are problems finding work in Peninsular Malaysia too.
He agreed that the economic problems in Malaysia are general problems that apply to everyone and not just him.
The applicant was invited to make any general submissions to the Tribunal but declined to do so.
The applicant was advised that if he wished to make further submissions to the Tribunal before the decision is delivered, he would have an opportunity to do so. The Tribunal has not received anything else from the applicant.
S36(a) - REFUGEE CRITERION
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. This is called the “refugee criterion”.
S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
The Tribunal has had regard to the documentation as to nationality on the departmental file, including copies of the relevant pages of the applicant’s passport, and is satisfied that the applicant is of Malaysian nationality. Further, the Tribunal is satisfied that the applicant is outside Malaysia.
The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Malaysia which is the next part of the definition of “refugee” at 5H(1)(a).
S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
a.The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“convention reasons”).
b.There is a real chance the applicant would be persecuted for one or more of those reasons, and
c.The real chance of persecution relates to all areas of Malaysia.
Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
Broadly, the applicant’s claims arise from two factors.
The first is that he fears harm at the hands of criminals because he believes he witnessed some type of drug related activity being either a deal or the packing of drugs.
The second is that he fears he will be unable to find work if he goes back to Malaysia.
Harm from Criminals
In this matter the applicant’s evidence to the Tribunal was that he believes he is at risk of harm from criminals because he happened across some criminals engaging in illegal activity related to drugs, presumably either a drug deal or the packing of drugs.
The Tribunal is prepared to accept that people who fear harm at the hands of criminals in Malaysia could relevantly be “members of a particular social group”.
The applicant’s protection visa application(PVA) form included claims that he fears harm from Malaysian mafia members.
The applicant told the Tribunal that he did not fill out the PVA form. He also said he does not know what was written in it.
The Tribunal asked the applicant to set out his claims orally.
The applicant’s evidence about his fear of Malaysian criminals did not match what was in the PVA form including in respect of the time and place of the incident, the presence of cash, the number of criminals, whether or not he was threatened, whether he was attacked, what happened to him after the attack, and whether the criminals identified him.
The Tribunal is not satisfied that the applicant made the claims in the PVA form and observes that the applicant’s testimony was different to the claims in the PVA in important particulars..
The Tribunal is satisfied that the applicant’s oral recitation of his claims is his own version and prefers them to the contents of the PVA where they differ.
The applicant’s oral evidence to the Tribunal about his claims to fear harm from criminals was unconvincing.
The applicant was unable to provide much detail about his encounter with the criminals and in particular he could not remember how close he got to them, where he went when he ran off, or whether he saw them again.
The Tribunal put to the applicant that his inability to provide important details like these made his evidence unconvincing and asked if he had any reaction or comment. He did not save to say he maintained his version.
The Tribunal is also concerned that the applicant, when asked why he was reluctant to return to Malaysia, mentioned the economic situation first and had to be directly questioned about the alleged criminals before he mentioned them. His suggestion that he did not say anything about them because he had not been asked was unconvincing.
The Tribunal is not satisfied that the applicant witnessed any criminal drug related activity. The Tribunal is therefore not satisfied that the applicant has a “well founded fear of persecution” for the purposes of s.5J(1) by reason of having witnessed any criminal drug related activity.

100. In any event, even on the applicant’s version there is no evidence that the criminals identified the applicant or still represent a threat to him.
101. Further, the Tribunal notes the applicant’s evidence that he was prompted to save money in order to leave for Australia not because of the alleged threats from criminals but because of the imminent financial failure of his employer.

Economic Circumstances
102. The applicant also gave evidence that in Malaysia he will not be able to get a job.
103. The Tribunal must examine this claim of economic hardship to determine whether it gives rise to a relevant “well-founded fear of persecution” and brings the applicant within the definition of “refugee” in s5H of the act.
104. For the purposes of considering the claim, and without making a finding, the Tribunal is prepared to accept that for the applicant may satisfy s5J(1)(a) because he fears persecution by reason of his membership of a particular social group, arguably being Malaysians of low earning power.
105. The Tribunal therefore proceeds to consider the next prerequisite for a “well-founded fear of persecution” which is the requirement in s5J(1)(b) that, if the applicant returns to Malaysia, there is a real chance he would be persecuted for one or more of the convention reasons.
106. The Tribunal will first consider what is meant by “persecution”.
107. The term is not defined in the Act, but s5J(4)(b) specifies that persecution must involve serious harm to the person and s5J(4)(c) specifies that persecution must involve systematic and discriminatory conduct.
108. Further, the meaning of “persecution” in the Refugees Convention has been judicially considered.
109. The Tribunal has regard to the decision of Justice McHugh in Applicant A v Minister for Immigration and Ethnic Affairs:
“Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.”[1]
[1] Applicant A v MIEA (1997) 190 CLR 225 at 258

110. In Chan v MIEA, McHugh J said:
“The notion of persecution involves selective harassment…”

111. The applicant said in his evidence that everyone from his home in Sabah has trouble finding work.
112. He does not say that his difficulty finding a job would be due to the conduct any third party directed at him. He says that the difficulty getting work is due to the general economic and financial circumstances in Malaysia.
113. The Tribunal is satisfied that the applicant’s economic circumstances in Malaysia would not the result of systematic and discriminatory conduct.
114. The Tribunal is satisfied that the applicant’s economic circumstances in Malaysia would not the result of persecution. The Tribunal is further satisfied that if the applicant returns to Malaysia, he will not be subjected to any relevant conduct. There is no evidence that he would be subjected to persecution.
115. The Tribunal finds that the applicant’s probable economic circumstances if he returns to Malaysia will not be the result of persecution. His economic circumstances in Malaysia would not, therefore, give rise to a well-founded fear of persecution as contemplated in s5J(1)(b).
Conclusion re Refugee Criterion
116. The applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).
S36(aa) - COMPLEMENTARY PROTECTION CRITERION

Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), he may nevertheless be entitled to the grant of the visa if he meets s 36(2)(aa) (‘the complementary protection criterion’).

118. To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of him being removed to Malaysia there is a real risk that he will suffer significant harm.
119. The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
120. S36(2A) provides as follows:
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.

121. S5(1) defines “cruel or inhuman treatment or punishment” as follows:
Cruel or inhuman treatment or punishment means an act or omission by which:
(a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)   that is not inconsistent with Article 7 or the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

122. S5(1) defines “degrading treatment or punishment as follows:
Degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

123. The Tribunal has considered the risk to the applicant at the hands of criminals when it considered the refugee criterion. The Tribunal is not satisfied that the applicant is at risk of any harm from criminals in Malaysia.
124. The Tribunal is not satisfied that the interaction with criminals that the applicant described did in fact take place.
125. The Tribunal is therefore not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life, or that he will be subjected to torture.
126. There is no evidence that the death penalty will be carried out on him.
127. There is no evidence that the applicant faces a real risk of significant harm at the hands of any other group in Malaysia.
128. The applicant claims that he will be unable to find a job in Malaysia.
129. He does not claim that this inability arises from an act or omission of another party.
130. The Tribunal therefore finds that the applicant’s economic circumstances in Malaysia are not “significant harm” for the purposes of the act and do not give rise to complementary protection obligations under s36(2)(aa).
Conclusions
131. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

134. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
135. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O’Loughlin
Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2072

6 April 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice