1725294 (Refugee)

1725294 (Refugee) [2023] AATA 1345 (6 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1725294

COUNTRY OF REFERENCE: Malaysia
MEMBER:Peter Vlahos
DATE:6 March 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 6^th March 2023 at 8.00AM .
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – refusing an arranged marriage – physical assault – fear of killing – state protection – internal relocation – police corruption – applicant’s wife returned to Malaysia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347
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 28 September 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 7 December 2016. The delegate refused to grant the visa on the basis that the application did not meet the requirements of s.36(2) of the Act.
The applicant appeared before the Tribunal on 22 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, [named] via the telephone. [She] had returned to Malaysia [in] April 2018.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was not represented at the hearing by legal counsel or registered migration agent.
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 Australia has protection obligations in respect of the applicant, [named]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and identity
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. Therefore, on the basis of the evidence before the Tribunal, the Tribunal further accepts the applicant’s identity as claimed.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision record. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.
Does the applicant have a right to enter and reside in a country other than Malaysia?
The Tribunal after considering the evidence before it, concludes and finds that the applicant does not have a right to enter and reside in a country other than Malaysia.
Therefore, s. 36(3) of the Act does not apply to the applicant.
Background – migration and visa history of the applicant
[In] March 2016 the applicant arrived in Australia on UD-601 Electronic Travel Authority visa. [In] June 2016 the applicant’s Subclass 601 visa ceased and applicant and his spouse (now in Malaysia) became unlawful non-citizens. On 7 December 2016, the applicant applied for a XA-866 Protection visa; which was refused by the Department but was granted the associated Bridging visa.
EVIDENCE AT THE HEARING
Background of the applicant
The applicant is a Malaysian national. He is married (married, in 2005) and has [number] children of varying ages who are all living with their mother in Malaysia. The applicant said that when in Malaysia, he was employed by his father to “run” the “family’s [specified] business”. However, because of disagreements with his father, the applicant was removed from the business. The applicant, thereafter, decided to leave Malaysia to come to Australia which he did together with his wife, in 2015.
The applicant said that he has not returned to Malaysia since his arrival in Australia, in 2015.
The applicant said that while he has been in Australia he has been employed, working as [an Occupation 1].
The applicant’s claims for Protection as submitted to the Department[1]
[1] see, Department of Home Affairs File [number]
The applicant’s claims before the Tribunal can be summarised as follows:
·The applicant is seeking protection in Australia so that he does not return to Malaysia.
·The applicant’s parents had organised an arranged marriage for him.
·When the applicant introduced his now wife to his parents, his father “was very mad”.
·The applicant’s husband’s wife was slapped and chased out of the house by his family.
·The applicant’s father threatened to kill the applicant’s wife.
·The applicant believes his father will send “men” “to kill him” if he returns to Malaysia.
·The applicant did not seek help from the Malaysian authorities because he did not want to bring shame on his family.
·The applicant relocated to [a location] in Malaysia after the incident, but his father looked for him there.
·The applicant does not believe the Malaysian authorities would be able to protect him if he returns to Malaysia because he does not want to make it easy for his father to find him.
·The applicant would not be able to relocate within Malaysia.
The applicant told the Tribunal that the claims above, are the claims he wished the Tribunal to consider and that he had no other claims to bring to the Tribunal’s attention.
The issue/or issues which were the cause for the applicant to leave Malaysia
The applicant said that he had a problem with “his family” who refused to accept that he had “chosen to marry another person” and “not the one the family wanted” him to marry.
The applicant said that though he has been married for a number of years and with children and had a settled life, the applicant’s father still wished him to marry another woman he preferred.
The applicant said that the main reason why his parents and his father, in particular, did not approve of his wife was because “she was from a poor family” and “for no other reason”.
The applicant said that he never wished to be a party to an “arranged marriage.”
The applicant was asked – ‘when did you introduce your wife to your parents?’ The applicant’s response was: “I don’t remember.”
The applicant then said, that when his father met his wife, he instantly disapproved of her as his wife. The also said, that his father slapped his wife and when this happened, the applicant’s reaction was “to take his wife away (from his parents’) the house.”
According to the applicant, “after that incident” they – applicant and his wife “ran away.”
The applicant said that he married his wife “secretly” and in accordance with Islam. However, though the marriage rites were carried out, the applicant’s marriage to his wife has not been registered.
The applicant said that they chose to live in [Town 1], Malaysia.
The applicant said that his wife left Australia in 2018 and is currently living in [Town 1] with the children. The applicant also admitted that his wife has not been located by his father while she has been in living in [Town 1].
The applicant said that if he was to return to Malaysia, he would not live permanently in [Town 1] because he “feared his father will be able to locate him there.”
The applicant admitted that while his wife and family had lived in [Town 1] there had been no threats. That being the case, the applicant still lives with the fear that his father will locate him and his family.
The applicant said that his concerns about his father remained because his father lives “only three hours away”.
The Tribunal pointed out to the applicant that his father (on his admission) was a considerable distance away, and it was difficult to believe that his father would go to such a distance to cause harm. The applicant’s response was that he “was not sure”.
The Tribunal asked the applicant to explain – why he did not report this problem to the police? The applicant’s response was that “his father was a businessman” and “has influence with the police.” The applicant went on to say, that “Malaysia id rife with corruption…” and the police can be bribed to do nothing.
The applicant has had no contact with his father and family since his arrival in Australia in 2015.
The applicant said that life in Australia was good for him, allowing him to work and provide for his wife and family in Malaysia.
EVIDENCE FROM THE WITNESS
The Tribunal also received evidence from the applicant’s wife, [named] via telephone from Malaysia.
The witness said that because she was poor, the applicant’s family refused to accept her as his wife.
The witness also confirmed that when she met her father-in-law, he showed his disapproval by ‘slapping her face’.
The witness said that she is now living in a remote area with her family and has had no contact with the family.
The witness said that the police in Malaysia will not protect her and her family because they do not protect “poor people.”
The witness confirmed for the Tribunal that she had left Australia for Malaysia in 2018 because her “father was ill” and “later died”
The witnessed said that she has remained in Malaysia with her family since her return in 2018.
FINDINGS AND REASONS FOR DECISION
The issue of credibility
The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v MIEA (1996) 64 FCR 151 the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:
“care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”
The Tribunal also accepts that “if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt”: see, United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, (Geneva, 1992) at paragraph [196]. However, the Handbook also states at paragraph [203] that:
“The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run contrary to generally known facts.”
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true: see, MIMA v Rajalingam (1999) 93 FCR 220.
However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: see, Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; see also: Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Consideration of the applicant’s claims – is the applicant entitled to protection as provided for by s. 36(2)(a) of the Act?
The Tribunal accepts that the applicant may have personal issues concerning his marriage with his family and particular, his father. However, the applicant’s version of events as submitted to the Tribunal at the hearing raises certain issues of credibility.
The applicant told the Tribunal that his family and his father could not accept his wife because of she was “poor” and wanted him to marry another woman which “his father had chosen for him” and was from a “better family background.” Matters came to a head according to the applicant when he took his wife to meet his parents. According to the applicant his parents showed their disapproval and his father proceeded to “slap” his would be wife. Thereafter, the Tribunal was told that the applicant was removed from the family [business] and he and his wife moved away from his father and the applicant’s family.
The Tribunal was told that the applicant’s father expressed threats against the applicant and his wife – vowing to harm them, even kill the applicant’s wife. Regardless of these threats the applicant married his wife in 2005 and has remained married to her since, and has [number] children as a result of that marriage. Nevertheless, the applicant said that his fears as to what his father would do to him caused him to leave Malaysia with his wife in 2016 and he has not returned since. However, his wife returned in 2018 because her father (now deceased) was ill and she has remained in Malaysia, living with her children in [Town 1] without any incident as she admitted in her evidence to the Tribunal.
However, the applicant remains concerned that if he returned to Malaysia, he would be found by his father and dealt with.
Both the applicant’s evidence and the evidence of his wife caused considerable concern to the Tribunal on credibility grounds,
First, we are told that the applicant’s father is a businessman with considerable influence and could if he desired locate and deal with applicant and his wife (the witness) if he wanted this. Again, the claim of fear is not supported by the evidence provided to the Tribunal. It was noted by the Tribunal that even though his father was a man of influence as the applicant claimed, the applicant and his wife were both able to leave Malaysia without any issues when they chose to do so in 2016.
Second, the applicant claimed that he and his wife cannot feel safe in Malaysia because both, and their children will be found by the applicant’s father. Again, the evidence provided by the applicant and his witness did not confirm this to be credible. The applicant lived for example, for a considerable period of time in Malaysia, since his marriage in 2005 without any incident until he left Malaysia with his wife in 2016. It is noted that the applicant and his wife remained in Malaysia for eleven years without concern arising or caused by the applicant’s father. Moreover, the applicant’s wife told the Tribunal that she returned to Malaysia in 2018 for personal reasons (her father’s illness and later death) but the important fact here is, that she returned to Malaysia and has resided there without incident. A person who has a genuine fear in their own country for any reason or reasons and leaves it does not return to their country later. It was noted that the applicant and his wife told the Tribunal that they lived “three hours away” from the applicant’s father residence, in [Town 1] town; surely, if the applicant’s father was a man of means and influence as the applicant claims, he would have located them in [Town 1]. Nothing happened when both were in Malaysia and nothing has occurred to the witness (wife) since her return to Malaysia in 2018. These claims of possible harm or persecution are not supported by the evidence as was considered by the Tribunal.
Form the evidence considered by the Tribunal, the Tribunal is not convinced that the applicant’s father is such a person that would attempt anything and go to any great lengths to extract some kind of retribution on the applicant or his wife just because he disagreed with their relationship and subsequent marriage. If he had the means, he would have done so but he has not. The Tribunal accepts the applicant’s father may not have approved of his son’s marriage, but the claim of vendettas and reprisals is not credible. The entire scenario of events as presented by the applicant and supported by his witness (wife) was an embellishment of the truth, provided to the Tribunal by the applicant to justify his seeking to attract Australia’s protection obligations as is provided for in s.36(2) of the Act for himself. It is the conclusion of the Tribunal after considering the facts as provided that this attempt has no substance or credibility attached to it. Therefore, the Tribunal concludes and finds that the applicant does not have a well-founded fear of persecution for any reason as provided for by s. 5J(1)(a) of the Act.

While the Tribunal has concluded that the applicant’s claims lack substance and credibility, it has drawn its mind to and carefully considered the applicant’s claim that he did not engage the police or could not call up the police because his father, as a businessman had influence over them and that the police would and do become influenced by ‘corruption’ and would neglect their duties to protect people. Having carefully considered the applicant’s claims about his father separately and cumulatively, the Tribunal cannot accept the claim that the applicant’s father had such influence as was claimed. The applicant provided no details of how his father was such a person of commercial and local influence, enough to direct the police in doing or not doing things. The Tribunal was told that the applicant’s father was a businessman in the [specified] trade – nothing more.
Nevertheless, the Tribunal accepts on the basis of consistent country information that family disputes whatever their nature and reasons do occur in Malaysia and in particular concerning issues of marriage[2] and local police are called upon to assist or even to provide protection to persons who feel aggrieved or threatened. It may be possible with the passage of time, the applicant might (if he returns to Malaysia) require the intervention of the police in the reasonably foreseeable future to prevent his father from annoying or threatening him, his wife or children and the Tribunal see no reason why the police would not provide that assistance to the applicant if requested.
[2] See, Department of Foreign Affairs & Trade Country Information Report – Malaysia, 13 December 2019 at paragraphs [5.5] to [5.8] at p.55
While the Tribunal accepts that there are difficulties and inadequacies in the policing and judicial system in Malaysia generally speaking, having regard to the advice of DFAT[3] the Tribunal finds that the protection provided by the authorities in Malaysia consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system as required by s. 5LA (2)(c) of the Act. Therefore, the Tribunal considers on the evidence before it that this protection is durable and the applicant has access to it, if and when he, or his family required it. The Tribunal does not accept, as the applicant had claimed that the local police could be influenced by his businessman father not to provide protection to him, his wife or children, nor that the applicant, if threatened would not request the police’s intervention as he claimed not to injure the honour and name of his family. The Tribunal therefore considers that effective protection measures as defined in s. 5LA of the Act are available to the applicant in Malaysia and that he does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
[3] Ibid see paragraphs [5.13] to [5.16] at p.56.
Accordingly, the Tribunal does not accept that the authorities in Malaysia would be unable or unwilling to protect the applicant in his circumstances. There is no evidence before the Tribunal that the applicant seriously contemplated seeking the assistance of the police prior to leaving Malaysia. The applicant provided no credible reason why he could not take advantage of this state protection or seek the assistance of the Malaysian judicial system, except to claim that he had not chosen to engage the police because he did not want to injure his father’s family name and reputation and even if he did, they (the police) would succumb to his father’s ‘corruption’ because he is a businessman.
The Tribunal acknowledges and accepts the available country information, in particular DFAT’s assessment of the Malaysian police who it described as generally considered to be professional and effective. The Tribunal also notes the comments from DFAT regarding police corruption, however, this is recognised by the authorities in Malaysia and measures have been put in place to deal with this issue[4].
[4] see, Department of Foreign Affairs & Trade Country Information Report -Malaysia, 13 December 2019.
In relation to the overall effectiveness of the authorities in Malaysia, as noted earlier, the Tribunal has relied on the country information showing that Malaysia’s protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system and measures have been put in place to address corruption. This in the Tribunal’s view demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant (and to his family) by the Malaysia state, and that protection is durable, and the Malaysian state is willing to offer such protection.
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Malaysia in the reasonably foreseeable future and therefore the applicant is not a person in respect to whom Australia has protection obligations under s. 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s. 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s. 36(2)(aa) of the Act.
Overall, the Tribunal is satisfied that if in the reasonably foreseeable future, the applicant returns to Malaysia, he will not face threats or harm from his father or his family for having chosen to marry a woman of his choice and not the family’s or his father’s choice and if he was threatened by his father or other members of his family, there are mechanisms in the Malaysian legal system, including a reasonably effective police force which is active and committed to taking action in relation to any claimed fear (if it eventuates) and that means the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s. 36(2B)(b) of the Act. Therefore, the Tribunal finds there are no substantial reasons for believing that, as a necessary consequence of the applicant being removed from Australia to Malaysia, there is a real risk he (or any member of his family) will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for by the Act in s. 36(2)(aa).
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.
Peter Vlahos
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 1345

6 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice