1724793 (Refugee)

1724793 (Refugee) [2021] AATA 581 (28 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724793
COUNTRY OF REFERENCE:                   Malaysia
MEMBERS:Wendy Banfield (Presiding)

Rosa Gagliardi
DATE:28 January 2021
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 January 2021 at 1:04pm

Statement made on 28 January 2021 at 1:16pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – low level of education – difficulty finding work in Malaysia – parents’ reliance on applicant – brothers working – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65
Migration Regulations 1994
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 6 July 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 16 December 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 (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.
Applicant's Identity and Country of Reference
The applicant stated in his application for a protection visa that he was born on [date] in Pahang, Malaysia. The applicant provided a copy of his Malaysian passport to the department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that he is a citizen of Malaysia and as such his protection claim will be assessed against Malaysia as the country of reference and 'receiving country' respectively.
Migration History
The applicant arrived in Australia [in] April 2017 on an Electronic Travel Authority (ETA) and has not departed since.
Claims for protection and supporting documentation
The applicant first submitted claims for protection when he made an application to the Department on 6 July 2017:
·     The applicant claims he left Malaysia because “it is hard to get job with my education background.”
·     The applicant claims his family depend on him for financial support.
·     The applicant claims, “I can’t continue my education due to financial problem.”
·     The applicant claims if he returns to Malaysia, he will be jobless “and become burden for my family.”
·     The applicant claims he has not attempted to move to another part of the country because “there are no other country that support human rights justice better than Australia government.”
The applicant has not submitted any supporting documents to the Tribunal.
Applicant's evidence at the hearing
The applicant's evidence was that he is a Malaysian citizen and does not have citizenship of any other country. His mother and [brothers] continue to live in Malaysia. His father passed away in 2015. The applicant declared he does not have family in Australia; he is not and has never been married and does not have children. Regarding his brothers, the applicant said they are not working due to COVID-19. He then claimed they have never worked and have no income, but his father used to [work]. The applicant said his mother has a [stall] and gives money to his brothers.
The applicant declared he had completed high school up to the equivalent of [grade], finishing in 2017. He said he had not studied after secondary school and did not work, nor had he looked for work after leaving school. He said it was difficult to get work because he does not have a high level of education. When asked if he considered staying at school or studying further, the applicant said he was not able to because his family could not support him.
The applicant advised he was from Pahang in Malaysia. He confirmed his parents have extended family members in the area and that they are close. However, the applicant said his relatives were not able to help his family. The Tribunal then put information to the applicant about the region he indicated he was from in Malaysia. This included the fact that modern Pahang is an economically important state with services, manufacturing, agriculture and tourism. Available information indicates there is employment in the services sector and because the soil in the area is fertile, there are opportunities (even for those without a high level of education) in the agricultural industry and in tourism. It was also put to him that Pahang is in a special economic zone within the East Coast economic region of the country and a large strip of the coastal region is in the area of high impact projects where the government is trying to build opportunities. According to country information, strawberries are grown and picked in Pahang. The applicant was asked why he thought he would not be able to get a job in such a growing and developing economic region of Malaysia. The applicant did not respond. When asked if he had anything to say about the information put to him the applicant said “no”.
The applicant declared he is working in [a town] picking [fruit]. When asked why he could not translate that skill to agricultural work in Pahang, the applicant said it is very difficult in Malaysia. The applicant said he got to [the town] “through my contacts”, on Facebook. He was told people were needed to pick [fruit] but indicated it was not well paid. It was put to the applicant that the country information about Malaysia was mostly positive, even though the economy had stalled due to COVID-19. The world bank considers it one of the fastest growing economies in the region and it is an upper middle income, export-oriented economy. It used to be dependent on rubber and tin but has diversified and includes manufacturing, oil and gas. Because of Malaysia’s economic performance, levels of poverty have decreased to 1%. Country information indicates that currently, there is only a very narrow section of the community who are very poor. When asked if wanted to comment, the applicant said “no”.
The applicant confirmed he came to Australia holding an Electronic Travel Visa. His reason for travelling to Australia was because he had heard it was very easy to get work. He said he researched travelling to Australia while in Malaysia. He was asked if he had researched finding work in his home region and he confirmed he had looked at agricultural and factory work but said it is difficult. When asked to explain why it was difficult, the applicant claimed it is because in Malaysia preference is given to foreign workers from Bangladesh and Indonesia. The applicant said he had looked for factory work in Kuala Lumpur as well as his home state.
The Tribunal explained the criteria for a Protection visa to the applicant and asked if he held any fears for any reasons of race, religion, nationality, membership of a particular social group or political opinion. The applicant said he did not. The applicant was asked about his English and he said it was not very good however he agreed he understood a little. It was put to him that having some knowledge of English would assist him to find work in the tourist industry in Malaysia. The applicant again said it would be difficult. The Tribunal noted the applicant had made the decision to travel to a country with a different culture where he did not speak the language, yet he has been able to survive as well as develop certain skills. When asked if he wished to comment, the applicant said it would be hard to go back to Malaysia because his family depend on him. He was asked if he was aware the Malaysian government provides social welfare to very poor families and whether his family had ever sought assistance. He said they had but it was not available, and he did not know why. Regarding his airfare to Australia, the applicant said he borrowed it from a trust fund in his hometown. He denied his family had contributed to the fund and said it was money that must be paid back. The applicant claimed he was lent money because he was coming to Australia and repeated his claim that he must pay it back. The applicant then indicated it was a Muslim religious fund and said this was the first time he had accessed it.
The applicant told the Tribunal his brothers[have] done a little work in the past in [a certain] industry. The applicant clarified his mother does not have her own shop she works for someone else. He said currently he gives money to his mother and she gives some to his brothers. The Tribunal questioned how the applicant can do this if he is not earning much in Australia. The applicant said he earns around $600 and sends $300 to his family. As to why none of his brothers were working or helping the family financially, the applicant again referred to it being difficult in Malaysia.
The applicant was asked to put in his own words, what he fears on returning to Malaysia. He said he is worried about financial problems and not being able to support his family. According to the applicant, he applied for a Protection visa so he can stay in Australia longer because he does not have a lot of education and cannot get a job in Malaysia. If he stays here, he can work and support his family. The applicant said there was nothing else that he fears, and he did not wish to make any further submissions to the Tribunal.
Credibility
While the applicant’s credibility is not determinative in this case, the Tribunal notes the applicant provided some inconsistencies during the hearing. The applicant initially said his brothers had never worked. He later said they had been employed in the past in [a certain] industry but are not currently working. The applicant also claimed it had been difficult for him personally to find work in Malaysia. Despite referring to it being generally “difficult” numerous times, the only reason the applicant gave was that preference is given to foreign workers from Bangladesh and Indonesia. The Tribunal finds that in general the applicant’s evidence suffered from a lack of detail and was general in nature, raising some doubts about the genuineness of the applicant’s claims overall. When asked to provide greater detail about the specific economic situation in Pahang, for example, the applicant chose not to comment on information put to him that suggested Pahang in Malaysia is developing economically and that there are employment opportunities for those without formal post-secondary education in agriculture, services and tourism.
While the applicant appears to have been entrepreneurial in finding work in Australia, he claimed he had made no effort to investigate any governmental assistance that could be provided in Malaysia to boost the finances of his household. The Tribunal finds this somewhat implausible.
The Tribunal had concerns about some of the applicant’s evidence as outlined, particularly his vague claims of not being able to find work in his home state in Malaysia, or elsewhere in the country despite stating he had investigated options in Kuala Lumpur.
Country Information
In accordance with Ministerial direction No 84 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT).
The Tribunal has referred to the DFAT report on Malaysia dated 13 December 2019 ('the DFAT Report') which states:
The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2018, its real GDP growth was 4.7 per cent, while per capita GDP was USD10,942 (AUD14,630). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 84 per cent of Malaysia’s exports in 2018. Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the government’s largest single revenue source. The drop in oil price in 2015 and 2016 negatively affected government revenues, but the rebound in oil prices in 2017 has seen revenues pick up again. The International Monetary Fund forecast economic growth of 4.5 per cent for 2019.
Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (USD 8.50 (AUD 12.26) per day in 2012) falling from over 50 per cent in the 1960s to less than 1 per cent today. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, which predominantly consists of Bumiputera. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. The UNDP’s Human Development Index ranked Malaysia 57 out of 189 countries in 2018, placing it in the ‘high human development’ category.[1]
[1] DFAT Country Information Report Malaysia 13 December 2019.
However, more recent information shows that the Malaysian economy is facing some challenges due to the current COVID-19 pandemic:
Malaysia’s economy may be turning a corner after a record decline in the second quarter, with experts seeing an opportunity to rest and rebuild in a way that could attract more foreign investment in the post-pandemic world.
In a country where the only certainty is political uncertainty, however, that might be easier said than done.
…
To control COVID-19, the country had imposed some of the strictest social distancing rules with its movement control order, resulting in hundreds of millions of dollars in lost daily output. But after a gradual reopening began in May, the economy is expected to pick up from the third quarter, backed by government stimulus. “I am cautiously optimistic that the worst is behind us”, central bank Gov. Nor Shamsiah Yunus told the media earlier this month.
…
To cushion the pain and support the recovery, the government has pledged a total of 295 billion ringgit ($70 billion) worth of stimulus measures, including a direct fiscal injection of 45 billion ringgit. A moratorium on bank loans is also helping households to free up some cash.
Prominent economists expect Malaysia to maintain its expansionary fiscal policy over the next year. But they warn that the government can only spend so much, and that two important growth engines—domestic consumption and property development—may have hit their limits.[2]
[2] Nikkei Asia, ‘Malaysian GDP plunge fuels talk of post-COVID economic remodelling’, 22 August 2020, Isabelle Francis, accessed on 20 January 2021.
The economic situation in Pahang as put to the applicant at hearing:
Historically, Phang business activities have revolved around the timber and fisheries industries and in recent years the petro chemical industry has become an integral part of the economy.
Pahang tourism and the services sector are two high areas of employment and very important cogs in the machinery of Pahang economic growth.
Cameron Highlands has developed an agricultural economy by utilising its fertile soil in tandem with the temperate climate which is an ideal environment for tea plantations.
The green rolling hills of Cameron are now rife with the camellia sinensis tea plant and what started as a cottage industry has transformed itself to help meet the demands of tea lovers worldwide.
It’s not just tea though, as strawberry farms are also in abundance on Cameron, allowing the tourism and agricultural industries to intertwine with remarkable ease…

The East Coast Economic Region (ECER) has been a major boost to the Pahang economy with projections that the east coast will be transformed into a developed region by 2020 and Pahang business will be a big beneficiary of this growth.
Whilst the wily Pahang businessman was studying the possible opportunities this project may bring, the ECER introduced in 2009 a further Special Economic Zone (SEZ) within the ECER.
The ECER SEZ is a zone covering a 25km by 140km strip that extends from Ketih in Terengganu to Pekan in Pahang. For Pahang business this means that a large strip of Pahang’s coastal region (including the state capital Kuantan) is in the heart of this concentration of high impact projects within this highly prospective development zone.
The ECER SEZ is the first of its kind in Malaysia and within this zone it is projected that it will attract RM90 billion investment, introduce 220,000 new jobs with a population increase to 1.3 million all before 2020.[3]
[3] accessed on 20 January 2021.

In terms of governmental welfare benefits and social assistance to the poorest in Malaysia, the country information shows that the government has targeted groups to assist low income households. This was also done to ensure assistance was benefiting those who are really in need, particularly the Bottom 40 (B40) of the population. B40 refers to the bottom 40% of households with a monthly income of RM3,900 and below. The target group eligible for the government aids and subsidies are:
·        Children
·        Elderly
·        Disabled
·        Poor Families
·        Victims of disasters[4]
[4]
Additional budget measures have been implemented to deal with the effects of the COVID-19 pandemic, particularly the vulnerable[5] and in Pahang in particular:
In Pahang, the state government has prepared a RM15 million aid package, which includes a one-time cash assistance of RM150 and distribution of food items like rice, flour, and sugar to some 18,000 recipients directly affected by the RMO.
"There is no need to go to any government offices for the aid.
"Stay at home and the aid will be distributed directly to the homes of those involved," Menteri Besar Wan Rosdy Wan Ismail said on Monday.
Datuk Seri Wan Rosdy added that RM252,000 in total will be given to the 42 state assemblymen in Pahang to distribute to people affected by the spread of Covid-19.
The state will also halve rent under the low-cost housing and affordable housing schemes for April.
"As a show of support and sympathy by the state government and local authorities for hawkers and small traders, the government has agreed to grant a 50 per cent deduction in payments for stall rental and other facilities, including farmers' market, morning market, night market and car boot sale permits for the month of April."[6]
[5]
[6] Coronavirus: Malaysian states begin handing out aid to those affected by outbreak, SE Asia News & Top Stories - The Straits Times, accessed on 20 January 2021.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Refugee criteria
The Tribunal considered whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion relating to all areas of the relevant country. The applicant did not make any claims in relation to his race, religion, nationality or political opinions.
The applicant did not make any specific claim that he was a member of a particular social group, but the Tribunal nevertheless considered his submissions that his family experienced difficult financial circumstances due to a lack of employment. The applicant as a poorly educated person, belonging to a low-income household in which only one person out of six is employed, may mean he is part a social group that experiences poverty in Malaysia.
When asked what he feared about returning to Malaysia, the applicant referred to financial worries and claimed he would be unable to support his family. He did not say why it fell to him to support his family when he has [a number of] brothers, three of whom are adults of working age. The applicant explained during the hearing that he had borrowed money from a village religious fund to travel to Australia. The Tribunal asked if the fund had been used to assist his family financially at other times, but the applicant said his loan for the airfare to Australia was the first time he had accessed it. The availability of a fund that the applicant was able to obtain a loan from for the cost of airfares indicates his family may have access to some kind of community support.
Similarly, it was put to the applicant that the Malaysian government provides welfare to the lowest economic group. He claimed it was not available to his family but was not able to say why and had not investigated what assistance was available. The Tribunal had concerns about the applicant’s vague answers to questions that were put to him and lack of satisfactory explanation for his claimed adverse circumstances in Malaysia. The Tribunal considered the applicant’s submission that he is required to repay money borrowed from a community fund for his airfare to Australia. The Tribunal finds the applicant has proven to be resourceful in securing employment and there appears to be no reason he could not find work in the developing Pahang economic region to repay the loan.
To meet the refugee criteria, the applicant must have a well-founded fear of persecution and the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to a threat to the person's life or liberty; significant physical harassment of the person; significant physical ill treatment of the person; significant economic hardship that threatens the person's capacity to subsist (ability to survive); denial of access to basic services, where the denial threatens the person's capacity to subsist (ability to survive) or denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist (ability to survive).
The applicant did not claim to fear persecution and there is no evidence he would be denied access to basic services or denied the capacity to earn a livelihood. The Tribunal did consider whether the applicant would face significant economic hardship that would threaten his capacity to subsist. In this regard the Tribunal notes the applicant is [age] years old and has lived independently in Australia since his arrival [in] April 2017, a period in excess of three and a half years. He has demonstrated that he has been able to able to make use of online contacts to find work and live in a foreign country without speaking the language or having any family support. In that time, the applicant has been employed in the agricultural sector and would have acquired skills that could be utilised in his home country. Given the applicant’s ability to find work in Australia, the Tribunal rejects any claims that the applicant will be a burden on his family upon his return to Pahang.
The applicant referred generally to Australia’s human rights protections in his application for protection dated 6 July 2017. The Tribunal notes the following in relation to Malaysia’s human rights framework:
Of the nine core international human rights treaties, Malaysia is a State Party only to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of Persons with Disabilities (CRPD), and the Convention on the Rights of the Child (CRC) and its two Optional Protocols on the Sale of Children, Child Prostitution and Child Pornography and the Involvement of Children in Armed Conflict. …the government made a public commitment to ratify the remaining treaties during its November 2018 Universal Periodic Review (UPR).
The government created the Human Rights Commission of Malaysia (Suhakam) through the Human Rights Commission of Malaysia (Suhakam) Act (1999). The King appoints a Chairman and Commissioners on the recommendation of the Prime Minister. Suhakam is compliant with the Paris Principles relating to the Status of National Human Rights Institutions and achieved ‘A status’ in October 2010, reconfirmed in November 2015.
A human rights unit in the Prime Minister’s Department Legal Affairs Division deals with domestic human rights issues and is overseen by the Minister of Law. The unit was tasked with the formulation of the new government’s National Human Rights Action Plan.[7]
[7] DFAT Country Information Report Malaysia 13 December 2019.
The Tribunal is satisfied that based on his personal circumstances; the applicant will have adequate human rights protection in Malaysia.
For these reasons, the Tribunal is not satisfied that there is a real chance that on return to Malaysia now or in the reasonably foreseeable future, the applicant would face a real chance of harm due to his membership of the particular social group, being an uneducated person living in a low income household.
Complementary protection criteria
A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.
During the Tribunal hearing the applicant was asked to state if he had any fears about returning to Malaysia. The applicant referred in general terms to being worried about financial matters and not being able to support his family. The applicant denied having any other fears. The applicant’s statement about financial worries followed an explanation for his circumstances in Malaysia which included not being able to find work since he completed secondary school and being one of a family of [a number of people] in which only his mother is employed. The applicant explained he applied for a Protection visa so he can stay in Australia longer. His reason for wanting to remain in Australia was the availability of work when he had been unable to get a job in Malaysia due to a lack of education. According to the applicant, if he is able to stay in Australia, he can work and support his family.
The Tribunal is not satisfied the applicant’s worries about financial matters amount to a real risk he will suffer significant harm if he is removed from Australia to Malaysia. According to his evidence, the applicant sought employment in the agricultural and manufacturing (factory) sectors in his home country. It may be that he will have to search other sectors such as services, hospitality or tourism, and consider other regions of the country.
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.
Wendy Banfield
Member

Rosa Gagliardi
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.
…

acc essed on
20 January 2021.

Budget 2021: Financial aids available for Malaysians (themalaysianreserve.com), accessed on
20 January 2021.

[2021] AATA 581

28 January 2021

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