1726388 (Refugee)

[2023] AATA 4674

1726388 (Refugee) [2023] AATA 4674 (13 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726388

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Amanda Goodier

DATE:13 December 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 December 2023 at 11:55am

CATCHWORDS

REFUGEE – protection visa – Malaysia – foreign exchange investment scheme – threats from criminal gangs – physical assault – attack on home – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

ABAR15 v MIBP (No 2) (2016) 242 FCR 11
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Malaysia applied for the visa on 15 May 2017. The delegate refused to grant the visa on the basis that that the delegate did not accept that the applicant faced a real chance of serious harm for his involvement in a failed Forex investment program from the authorities or any other person on his return to Malaysia. The delegate also did not accept that there was a real risk the applicant would face significant harm for any reason on his return to Malaysia.  A copy of the delegate’s decision was provided to the Tribunal by the applicant.

3. The applicant appeared before the Tribunal on 23 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

4. The applicant was granted 14 days from the date of the Tribunal hearing to provide additional evidence in support of his claims.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

10. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

11. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

12. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

13. 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.

14. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

15. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

16. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).

17. Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal   is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].

18. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

19. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

    Credibility

20. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

21. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[1] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]

    [1]    Section 5AAA of the Act.

    [2]    MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70].

22. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[3] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.

    [3]  Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at [482].

23. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[4] However, such a benefit should 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 counter to generally known facts.

    [4] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

    Mandatory considerations

24. 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

25. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

26. The applicant travelled to Australia on a genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.

    Background information

27. In his protection visa application, the applicant claims to be a citizen of Malaysia, stating he was born in Klang, Selangor, Malaysia in [specified year]. He indicated his parents were Malaysian citizens.  He speaks, reads and writes both Malay and English. His occupation was listed as “Associate”.  The applicant indicated he had previously visited Australia on a holiday visa and had returned to Malaysia when that visa expired.  He has also visited [Country 1] for a short holiday on three occasions in 2015 and 2016. He married in 1990 and has [children], [genders specified]. His family remains in Malaysia. The applicant indicated he had received about [number] years education in Malaysia, withdrawing from a [course 1] at [a named college] in [year]. He provided his address in Klang, Selangor, Malaysia as being the same from birth until his departure from Malaysia for Australia in May 2017.

28. The applicant arrived in Australia as the holder of a visitor visa [in] May 2017. He applied for the protection visa on 15 May 2017.

29. The applicant confirmed at hearing that he had completed the application himself without any assistance.  It was signed by him, and he was aware of the contents.

30. At the hearing the applicant confirmed his date and place of birth as well as his residential address in Malaysia.  He told the Tribunal that he was born in the family home and lived there until his departure for Australia in May 2017.  It was the family home, and he now owns the land it was on.  His parents are deceased, and he inherited about [number] acres from his parents.  His brother and family live in a second house on the land and [other family members] family live in a third house.   His wife lives in Kuala Lumpur with their eldest son who is [an occupation 1], [details of children and family member deleted].

31. The applicant lived in [Country 1] for about two years when aged [age range] working a job in [industry 1].  As it was only a four-hour drive, he would go home every weekend to spend with his family.  Where he lived in Klang was about a one-hour drive from Kuala Lumpur.

32. The applicant was vague about the amount of contact with his family.  He told the Tribunal that he sometimes speaks to them but limits any contact so he cannot be traced via his phone to Australia, and that is why he did not know much about his family.

33. When his father died, the land owned by his father outside of the land the family home is on was sold and the funds divided between the applicant and his siblings. 

34. The applicant lived in [Town 1] from 2017 until recently.  He moved to Langford about two and half years ago.  He holds the lease on the property and rents out the rooms to others.  They share the costs of the property and buy their own food.  He quit his job in [Town 1] in June 2023 and survives on his savings and by selling off his [vehicles] that he has collected since his arrival in Australia. 

35. He has visited Australia prior to his last arrival in2017.  He chose Australia as it is big and empty.  He has travelled around the country, staying for two to three months in 2015, travelling around to find a good spot to stay.  That place was [Town 1].  He prefers to stay in places where he can avoid Malaysian people.  In 2016 he came to Australia with his wife, and they travelled around for two and half months. 

36. The applicant told the Tribunal that he during his time in Australia he did not work but maybe helped people who would pay him cash. 

37. The applicant completed [number] years of education. He worked in Malaysia as [occupations 2 and 3] from about age 17 until he went to [Country 1], where he worked in [industry 1].  On his return from [Country 1], he worked as a contractor as [occupations 2 and 3] until he came to Australia.  When the economy was not good, he also worked as [an occupation 4] and in a factory until he got involved in the “big project”.

38. In Australia he worked continuously for [Employer 1] from the time of his arrival until June 2023 when he resigned.

39. The applicant told the Tribunal he sends money to his family, usually monthly and not much. He then indicated he sends about $200 a week home to his wife.  Now he is not working he only sends money every fortnight or when she asks.

40. The applicant confirmed his religion as Muslim and indicated he did not practice as much but his wife and son were very good.  He was not involved in politics in Malaysia

41. The applicant told the Tribunal that the first and second time he visited Australia, he just wanted to look at how we live, our culture, have a holiday, etc.  The third time he came to Australia, he decided he wanted to live here but did not know the process to move, so just travelled around.  During his third visit he was fishing in [Town 1] and met an Indonesian man who was also fishing.  They were talking and he asked the Indonesia how to stay in Australia. The Indonesia man told him to apply for a protection visa as it was easy and a small cost. 

42. He went back to Malaysia as his problem in Malaysia was not that hard, so he still had a choice. At first, he thought about a business/investment visa as he had money at that time and was still deciding where to go.  He made no enquiries as he was still deciding which visa and which country.  He also was not under pressure yet so thought maybe next year or something like that.

1. Sometime in either 2014/2015 or 2013/2014/2015 he got involved in a get rich quick scheme.  He was involved for three to four years before the company vanished from the website.   

2. He found this get rich quick scheme while scrolling on his computer.  This add came up and he wasn’t really working at the time. He checked carefully and found that the company was based in [Country 2].  It was all done on-line. He could identify the server as based in [Country 3] and this was important to him as if it was somewhere else in Asia, it usually meant it was a scam website.  He then told the Tribunal the company was based in [Country 4]. He identified the company as from [Country 4] as he could tell from the company profile page.  He could make five times on his money in a day if he invested in this scheme. He could not remember the name of the company.

3. He had a few $1,000 saved and the money from his share of the inheritance from his father and decided he wanted to invest his money.  He started with a small amount first, about $1,000 and the return was good, so he continued investing.

4. He made a lot of money in six months as he kept re-investing his money.  He can no longer remember the name of the company and he tries not to remember as it makes him scared. 

5. The problem started about six months later when he got greedy, and he started taking other peoples’ money to invest.  He bought a new sportscar, a new watch, and started buying expensive things and spending money.  People asked him how he was making so much money, so he told them.  He was making five times profit so told them he could make them three times profit and he would keep the other part of their profit.  So, he started using other peoples’ money to invest in the company.

6. People gave him the money to invest rather than investing themselves as an international bank account was needed and he had one from his days working in [Country 1].  The first time he invested the minimum $1,750 and after that he does not know how much he invested. 

7. Suddenly the website vanished, everything was blank, and about $[amount] was gone.  He usually checked just after midnight each day to see what profit he had made, and this night when he checked everything was gone. He can remember that it happened in about September 2015. 

8. At first it was just friends and family who invested with him, then people he did not know started to invest also.  His brother invested with him, as well as a cousin/second cousin/nephew he thinks.  The minimum investment was about $1,750 at the time. He did not know that one of the people who invested with him was one of the biggest gangsters in Kuala Lumpur.  When the money disappeared, they threatened him and wanted to kill him.  Not just the gangster, but a lot of people came to house everyday threatening him.

9. When asked about the gangster, the applicant indicated he did not know the name of the leader and thinks it was [two gangs identified].  The membership was a mix of Indian, Chinese and Malays and was very big in Klang valley. He told the Tribunal that all the gambling shops/illegal business were owned by this gang.  He didn’t know that they invested with him.  A person came to him from that group and said he wanted to invest about 500,000 ringgit (about AUD$150,000.

10. The applicant told the Tribunal that when the company was lost, he called the middleman, [Mr A], and told him that he could not open the website. He took the computer to [Mr A] and showed him that the website had gone.  The applicant told [Mr A] he did not know what to do.  [Mr A], he thinks, explained that the money was lost to the boss.  After a few days, about 15 people in 3 or 4 cars came to find him, threaten and beat him.  This was in 2016 before he decided to run away.

11. The Tribunal asked the applicant whether he sought medical treatment in 2016 when they beat him.  The applicant indicated that he did not, but he still had the scars and showed the Tribunal scarring on the top of his chest. When asked why he did not seek medical treatment the applicant stated he was in hiding at his home, then qualified not his home but a mate’s house for a few weeks.  He kept moving every week. If someone saw him, he would move to another place. He moved around for about 3 to 4 months then decided to try to move to Australia again. He arrived in Australia in 2017, stayed a couple of months then applied for a protection visa.  He thought he could not stay here without working.

12. The applicant was asked why he didn’t sell his land to pay the debt and was told it was not enough.  He indicated he sent money home to pay off the debts then indicated for his family.  He sent money home to his wife who paid his siblings and other people he knows invested in the scheme and lost money.  He sends home $200.  The Tribunal queried whether this was for his wife and was told his son supports his wife 100% so she uses the money to pay off everyone they know.

13. The Tribunal referred the applicant back to an earlier question asked about sending money home and that at the time he responded that this money was for his wife.  The applicant responded that no, it was for his wife to pay only the people that he knows who invested.  He cannot pay the gangster because if he pays them, they ask for more.  The gangster is more like a loan shark, they don’t care.  The applicant told the Tribunal he went to the police and made a report, but the police could do nothing because the gang also control the police with bribes.  The police could not protect him. 

14. When taken back to his evidence about the gang, the applicant could not remember the name and thinks they were [one of the gangs identified].  The applicant was investing using other peoples’ money, which he claims was against the law, in particular the Money Laundering Act in Malaysia.  He was collecting money and investing it for others.  At first, he did it just for him, then he got greedy and started taking other people’s money to make a profit for himself as well as them. He cannot remember everyone who invested, and when he left, he ran away leaving everything, including his paperwork and laptop.  When he ran away to Australia, his injury was still bleeding.

15. The Tribunal sought clarification as to when he was beaten and when he fled.  He indicated he was beaten and did not seek medical treatment in 2016 and fled while he was still bleeding to Australia. 

16. The Tribunal asked why he did not seek protection at an earlier stage when he came to Australia if he was so fearful, pointing out he had visited Australia in 2015, twice in 2016 and 2016/2017.  The applicant responded that the first times he was not fearful, he just travelled to enjoy as he had money then. He would come to Australia, buy a car, travel around, sell the car then return home to Malaysia.  On the last time in 2017, he just ran with the injury.  He did not even pack a bag, just bought a ticket and flew to Australia.  He then decided to apply for protection.  Before that he was just thinking he would maybe do a business/investment visa as Australia is a good place and he could bring whole family.

17. The Tribunal asked when he lost all his money and was told end of 2016. The applicant indicated that the thing happened just after the last time he visited Australia.  The Tribunal confirmed that he lost money at the end of 2016 then came to Australia.  The applicant responded, not yet.  After the fourth time he went back then it happened, and he was chased by all the gangsters, and he came back here.

18. The Tribunal indicated it was a little confused over when things happened as the applicant appears to indicate things happened, then he came back then something happened, and he fled.  The applicant responded the first 4 times things were not good and he wasn’t thinking of running away to Australia.  He tried to settle the things.  He tried to pay bit by bit and some of the amount, but the gangster wanted the whole profit that they lost which he could not pay.  They want the full profit over two weeks.  The applicant claimed that the gangster had given him money about 2 weeks before the website closed down.  The middleman gave him a small amount first and then he told the applicant he had a big investor.  The applicant didn’t care where money was coming from. 

19. The Tribunal asked why he could not relocate elsewhere in Malaysia and was told that the gangster could locate him anywhere.  The applicant later told the Tribunal that his wife was so scared, she did not leave her son’s home in Kula Lumpur. The applicant told the Tribunal that the gang was still interested in locating him as when he asks his son about going home, he advises him not to as there is still a threat from the gangsters who want their money.

20. The applicant told the Tribunal that the gangsters had burned his car and thrown red paint over his house.  Daughter [specified], who was then in high school, was threatened when they asked her where her father was.  The applicant said this was in 2017 when he fled, and this is also why the family separated.

21. When asked to confirm when he started investing in the scheme, the applicant could not quite remember the year.  He could not remember the name of the company or the URL.  The Tribunal indicated he was investing for a couple of years and searched for it on the web.  He remembers it was [a Country 4] company and the website server was based in [Country 3].  He checked the country to make sure it was not a scam. He knows these things as he has been involved in his kind of business before.  He told the Tribunal that when you get involved in this type of business, you need to know.   When asked how he checked the company out said he checked the profile on the web, it was based in [Country 4] and it was an investment company, but he cannot remember the name.

22. The Tribunal put to applicant that [Country 4] have a system to check for Ponzi schemes such the one he invested in.  The applicant could not remember the name or details. The applicant stated he checked where the server was based as that was important to know.  He started investing with a small amount and profit was paid.  The Tribunal asked whether he ever thought it was too good to be true and was told that is why he started investing a small amount first.  Prior to investing in this company, he had invested in other companies and if there was no return and he lost his money, he knew it was a scam.  With this company, he got paid straight away and that is why they continued.

23. When asked about his international bank account, the Tribunal was told that it was a bank in [Country 1], and he needed it for when he was working in [Country 1].  This account was closed about 6 to 7 years ago.  When this thing went upside down, he withdrew the balance from the account and gave it to his family and brought the rest to Australia.  He brought nearly $[amount] cash to Australia.  The Tribunal asked how he brought [this amount] into Australia.  The applicant hesitated in his response and indicated he did not know. The Tribunal pointed out that bringing [this amount] cash into Australia broke the law.  The Tribunal referred to the applicant’s comments that he came to Australia with just the shirt on his back so how did he bring [this amount] cash into Australia. The applicant indicated he put it into his pants.  The Tribunal put to him that in 2017, he came through all the security in Malaysia and Australia with money on his body, and he responded, yes.  The Tribunal indicated that it was finding that a little hard to believe in that he put [this amount] on his body and brought it into Australia.  The applicant responded, not whole body, as he did not bring his whole [amount].  He meant that he brought the money here but, on his body, he only brought about [smaller amount] and the rest was posted here bit by bit.  He didn’t have a bank account in Australia yet.  His wife kept the rest of the money and posted it to him in Australia in small amounts in secure parcels.  When he started working, he then opened a bank account in Australia.  He used the cash to live on.  The Tribunal confirmed that the [Country 1 bank account was the account all the money from his investment scheme was paid into and asked for the statements to be provided.  The applicant confirmed that the funds went into the [Country 1 account then transferred into his Malaysian account which he would withdraw to pay his investors. 

24. The Tribunal asked the applicant why he can remember all these details, but not the company details.  The applicant responded that he would ask his wife as maybe she will remember.  The applicant told the Tribunal that every day she was with him collecting money and sending money. The applicant indicated that his wife has all the paperwork still as when he left, everything was left behind. When asked why the gangsters didn’t chase after her, that applicant said that is why she left the family home.  He wanted to bring her to Australia.  In 2018 she came to Australia as a visitor and returned home.  She was unsuccessful with a further application for a visitor visa to Australia.

25. The Tribunal asked why he could not relocate to Kuala Lumpur as his wife had and be safe.  The applicant responded that his wife does not go out, she stays in the house all the time.  He is a man and would need to go out and work.  The Tribunal put to the applicant, that if the gang were very interested in finding the wife who is living with their son in Kuala Lumpur, and his evidence is that the gangsters can locate people everywhere, why haven’t they located her?  The applicant responded that she is suffering and not going out.  The Tribunal asked if she was suffering so much, why didn’t she apply for protection when she was in Australia?   The applicant responded that he wanted her to apply but she wanted to return to Malaysia for their son’s wedding.  She would then apply again for a visitor visa, return to Australia, and apply for protection then.  However, when she applied to return, her application for a tourist visa was declined and she is still in hiding in Kuala Lumpur. The Tribunal put to the applicant that if his wife is willing to return to Malaysia to attend her son’s wedding, then this would indicate she is not frightened of the gangsters finding her. The applicant responded that she was not the front person for the investors, he was.  His wife just did all the paperwork.  The Tribunal put to him that his evidence is that she did all the paperwork and knew everything going on.  The applicant responded that she knew what he was doing and all about the investments, but he met up with the investors.  His wife probably knows the details of the company and he can ask her.

26. The Tribunal referred to the applicant’s beatings.  The applicant told the Tribunal he was beaten just before he came to Australia.  He had lost the money before his fourth visit, but the gangster had not been informed yet as he gave them excuses.  Once they found out, they beat and stabbed him.  He only sought medical treatment for the stab wound in the abdomen in a private clinic as they would not ask too many questions.  He did not seek medical treatment for the other stabbing wounds.

27. The Tribunal put to the applicant that he had earlier stated that he had not sought medical treatment for any of his wounds.  The applicant told the Tribunal that a few months before he had sought treatment after a beating.  He played dead so they stopped beating him.  He sought treatment for the wound in his abdomen and reported it to the police, but nothing happened.  He was beaten again, and he fled to Australia still bleeding from those wounds.  The gangsters are still looking for him.

28. The Tribunal referred to country information[5] indicating that there are several non-government organisations that aid Malays dealing with moneylenders.  The same country information also indicates that the police have been effective in acting against moneylenders and other crime.  Country information also reports that Malaysia is being effective in combating police corruption.  The applicant told the Tribunal that he had heard of such groups but did not know of them at the time and from his point of view, he just wanted to run away.  He did not know where to go or what to do.  The Tribunal put to him that he indicated that during his last visit to Australia, an Indonesian man had told him about protection visas, so he did know what to do. The applicant responded that he just bought a ticket and fled to Australia and remembered the conversation so applied for protection.

    [5] DFAT Country Information Report June 2021

29. The applicant also told the Tribunal that these are gangsters not just loan-sharks.  The gangster is both – a loan shark and gangster but this is not a loan shark matter.  The Tribunal referred to his earlier evidence as referring to them as loan sharks, damaging his property and throwing red paint over his house which are actions of loan-sharks.  The applicant responded that they couldn’t find him, so they damaged his house.

30. The Tribunal put to the applicant country information indicating effective police protection as well as effective action in Malaysia against corruption, including police corruption.  The applicant responded that the gang was still there and operating.  The Tribunal responded that does not mean that the police action is not effective. The applicant responded that he just left after the second attack. He also stated that police protection is now better for loan shark matters but his was a different matter.

31. The Tribunal put to the applicant that his evidence was confusing about the beatings and timing of events.  The Tribunal asked why he could not avail himself of police protection if he returned to Malaysia or relocate to Kuala Lumpur where his wife resides.  He responded his wife is frightened.  The Tribunal asked if she is that frightened and visited Australia twice, staying for about three months, but did not apply for protection, that would indicate that she really wasn’t frightened to return to Malaysia.  The applicant told the Tribunal that she really wanted to apply but also wanted to return to Malaysia for their son’s wedding so returned to Malaysia.

32. The applicant told the Tribunal he could not relocate in Malaysia, he is afraid to return even after all these years as they are still interested in him.  He looks into the mirror every day and sees the scars and is afraid.

33. The Tribunal discussed with the applicant its concerns over inconsistencies in his claims, his claims as a whole, the lateness of his amended claims as well as country information indicating effective protection from the authorities and the effort the government has put into fighting corruption.  The applicant told the Tribunal that he went many times to the police, but nothing happened.  The Tribunal responded that his evidence was that he only went once. The applicant responded that he was stabbed two months prior.  The Tribunal put to him that he states he was stabbed two months before but did not tell the gangster until after his last visit to Australia and then fled after being stabbed, flying to Australia while he was still bleeding from his wounds and after not seeking medical treatment. The applicant told the Tribunal he was attacked many times and things were not good on his third visit, but he wasn’t thinking of running away.  It was after the last time that he ran away.

34. The Tribunal gave the applicant 14 days to provide additional documentation in support of his claims.  As at the date of this decision, no further material has ben provided.

    Assessment of the applicant’s claims for protection

    Claims

35. The applicant’s claims in his protection visa application can be summarised as follows:

    ·Last year he got involved in one of Forex investment program organised by one friend, so he recommended to friends and family.  His friend ran away with all the money so his family and friends blame him and want their money back – [amount] ringgit.   They are already blackmailing him to take vicious action and a few times he got beaten.

    ·He will be dead if he returns as he has been threatened and if found will be killed.

    ·He has already been beaten, physical abuse and mental abuse from them.

    ·They are gangsters and do not care about the law.  What they care is their money.

    ·He cannot relocate as they will pay someone to find him.

    ·He will be harmed if he returns.

    ·They are searching everywhere for him.

    ·The authorities cannot protect him as they think he was involved with his friend who ran away with the money.

1. These are the claims the delegate referred to in the decision by the department to refuse the applicant a protection visa.

2. The applicant responded to a pre-constitution outreach by the Tribunal on 3 February 2023.  In his response he indicated he wished to attend a hearing and required a Malay interpreter.  No further information about his claims for protection was provided, he did not wish to amend his claims, nor did he provide any other reasons for being afraid to return to his home country.    

3. The Tribunal found that the narrative of his claims to had changed significantly from those in his protection visa application. To the Tribunal he claimed that it was him that took the money from friends and family, including money from one of the biggest gangsters in the Klang area, to invest in the “get rich quick” Ponzi scheme. (The applicant varied between initially calling it a Ponzi scheme, but more often “get rich quick scheme” ,the “big one/case” and “investment scheme”.)  He identified it as a Ponzi scheme early in the hearing.)  He found the investment site on the web, investigated it, and started to invest.  He made considerable money, which was noticed, and others wanted to invest in his scheme which they had to do through him as he was the one with the international bank account. The investment site disappeared rather than the friend disappearing with the money.  When the company disappeared, he was threatened and beaten by the gang members and was so fearful for his life, he fled Malaysia for Australia.  He was bleeding form his wounds when he fled and caught the flight to Australia, taking nothing with him except money stuffed into his trousers. The gangsters have beaten him and are looking everywhere for him. The only similarity is that everyone is chasing him for the funds.

4. When raised with the applicant, the applicant told the Tribunal that this was another scheme he was involved in, and he felt he had more evidence to support his involvement in this scheme than the other one. He told the Tribunal he was involved in several similar schemes; he would invest small amounts and if he received a return would continue and if not, then he lost his money, but it would only be a small amount that he lost.

5. The Tribunal queried why he didn’t refer to this claim he was making at hearing at the time he made the protection visa application as according to him he had fled Malaysia, bleeding following a beating, with all the money he could take stuffed into his trousers and lodged the application shortly after arrival when the events would be fresh in his mind.  The applicant’s response was that he thought he would refer to the FOREX investment scheme as he could provide more evidence to support that claim. The applicant indicated that his claim had not changed.  The two things happened together, the Forex investment and this big investment scheme.  However, when the big thing happened, he ran, but he only had the Forex scheme in his mind when he completed the application form.

6. The applicant told the Tribunal that he had many things going on and still does.  He met this friend years ago and discussed Forex investments.  He became involved as Forex investments became more popular, so he also asked his friends and family to invest, then his friend ran off with all the money.

7. His mind was messed up when he arrived in Australia, so he only mentioned the Forex scheme.  He does not have enough evidence on the big case.  Since he has been in Australia, he has managed to pay out most of the Forex investors.  The gangsters want the whole thing, all the profit, and he cannot pay them. He was not thinking about what happened but what was the easiest thing to do.  He did not have enough proof for the big scheme but could get proof of the Forex scheme. 

8. For the following reasons, the Tribunal does not accept the applicant’s claims that he is unable to return to Malaysia because he fears harm from one of the biggest gangsters in Klang following a failed investment scheme operated by the applicant.

9. The Tribunal finds that the applicant’s narrative of his claims significantly changed between those in his protection visa application and those to the Tribunal, raising concerns over the credibility of his claims.

10. The Tribunal also notes that despite being provided with additional time to provide evidence of the schemes, nothing has been provided.  The Tribunal particularly notes this as the applicant was clear at hearing that he had considerable evidence of the Forex investment scheme, hence making that claim in his protection visa application.

11. The Tribunal considered the applicant’s response to its concern that the narrative of his claims for protection have changed significantly between those lodged with his application for protection and considered by the delegate to those made to the Tribunal at hearing. The Tribunal does not accept the applicant, after being bashed and threatened, bleeding from his wounds, with money stuffed into his trousers and so scared that he immediately fled his home country to Australia with nothing but the clothes on his back, would then set out his claims to protection based on a friend’s failed Forex investment scheme that he had encouraged others to invest in, rather than his claim to the Tribunal that it was his investment scheme where he was investing other people’s money. The Tribunal would expect that his reasons for fleeing Malaysia would be forefront of his mind at the time of preparing his application rather than an assessment of which scheme would be best to claim because he could provide the better evidence. The Tribunal notes in that regard that the applicant lodged his application for protection shortly after his arrival in Australia in May 2017 when the claimed reasons for fleeing Malaysia would be fresh in his mind.

12. The applicant claimed that he investigated the company prior to investing his money.  He checked where the server was located and the web pages of the company for details on the company location.  He firstly told the Tribunal the company was a [Country 2] company before later changing and telling the Tribunal the company was based in [Country 4].  The applicant also told the Tribunal that he invested in the company for a couple of years with his wife handling all the paperwork which he had left behind when he fled to Australia. The applicant told the Tribunal that his wife would know as she had all the paperwork and indicated he could speak to her.  Despite being given time to provide additional information to the Tribunal the applicant did not do so. The Tribunal would expect that a person who had carefully checked out the company and invested funds in that company, receiving good returns, over several years, would recall the name of that company. The Tribunal does not accept that the applicant, after investing such effort into investigating the company and being able to access paperwork relating to the scheme, would not recall the name of the company or be able to provide the Tribunal with details of the company.

13. The applicant told the Tribunal that the biggest gangster in the Klang area gave him money, through a middleman, to invest.  He could not remember the name of the gang, saying it was either [of two identified] and could not recall the name of the head of the gang.   The Tribunal would expect that as the applicant had lived in the Klang area with his family for all bar two years of his life, that he would be familiar with the name of the biggest gang in the area as well as the name of the person who ran it, especially when he became aware of who was investing with him.   

14. The applicant told the Tribunal that while he was the front man for the investments, gathering and paying out the money, his wife was with him every day, she was aware of everything going on and handled all the paperwork.  The applicant told the Tribunal that his wife is extremely fearful and lives in hiding in Kuala Lumpur.  She lives with their son who is employed and supports his mother.  The applicant also told the Tribunal that his wife has visited Australia twice since his departure, staying for about 3 months and intended to apply for protection on her next visit. She returned home to Malaysia after her last visit to attend her son’s wedding and was denied a subsequent visitor visa for Australia.

15. The applicant told the Tribunal that the gang can find him anywhere in Malaysia and they are still looking for him.  If he returned, he would have to live in hiding which would be difficult for him as he would need to go out to work. 

16. The Tribunal would expect that if the gang was looking for him, they would be able to locate his wife and son living in Kuala Lumpur, even with the claim the wife was living in hiding and not going out.  Kuala Lumpur is only an hour’s drive from the applicant’s home where his siblings live, and a son occasionally lives.  The Tribunal would expect that if the gang was still regularly looking for him, they would be more active in questioning his siblings as to his whereabouts.  The Tribunal would also expect that as the wife was as active in the scheme, as claimed by the applicant, and the gangsters can locate people anywhere in Malaysia, they would have located the wife living in Kuala Lumpur by now. The Tribunal would also expect that if the wife was so fearful for her safety, she would have taken the opportunity to seek protection in Australia during one of her two visits and not returned to Malaysia for her son’s wedding The Tribunal does not accept on the evidence provided that the gang is looking for him.

17. The Tribunal does not accept the applicant was sending funds back to Malaysia for his wife to repay those whom they knew who had invested in the scheme based on the inconsistency in his evidence. Early in the hearing, he indicated he sent funds back to support his wife, while later when discussing repayment of the money, he indicated that he sent the funds for his wife to repay those who had invested as his son fully supports his mother. 

18. The Tribunal finds that there are a number of inconsistencies in the applicant’s evidence as to the events surrounding the investment in the “get rich quick” Ponzi scheme and the events following the disappearance of the website.

19. The applicant was unsure of when he started investing in the on-line company saying it was either 2013/2014/2015 or 2014/2015.  He told the Tribunal he had been investing for three to four years before it disappeared which was in September 2015, and he was very sure of the date the website disappeared.

20. The applicant’s later evidence was that when the company disappeared, he called the middleman, [Mr A], and showed him that the website had gone. A few days after that, a group of about 15 people found him and threatened as well as beat him.  This was in 2016 before he decided to run away.  He showed the Tribunal the scars on his chest saying this is what they did, and he did not seek medical treatment but hid for about 3 to 4 months before fleeing to Australia in 2017 and applying for protection.

21. He later told the Tribunal that he was beaten, did not seek medical attention following this beating and immediately fled to Australia while still bleeding which is inconsistent with his earlier evidence that he hid for 3 to 4 months before fleeing to Australia and applying for protection.

22. The applicant also told the Tribunal that the gangster had given him money about two weeks before the website closed down.  In contrast to his earlier evidence that he contacted the middleman to tell him that the website had disappeared straight away, the applicant told the Tribunal that he held off telling the gangsters about losing the money until after he returned from his fourth visit to Australia.  As the Tribunal pointed out to him, it was during this visit he talked to the Indonesian fisherman who told him about applying for protection. The applicant indicated that he had held off telling the gangster, giving them excuses for not paying the money.  Once they found out, he was beaten and stabbed, then he fled to Australia.

100.   The applicant also gave evidence that he had been stabbed in the abdomen a few months before and sought medical treatment at a private clinic and reported the matter to the police who did nothing.  At the end of the hearing, he told the Tribunal he went many times to the police, but nothing happened.  When it was put to him that he gave conflicting evidence about the number of times he reported matters to the police, he responded saying he had been stabbed two months beforehand and sought medical treatment for that injury.  When put to him that his evidence was that he only told the gangster after his last visit to Australia following which he was stabbed in the chest, did not seek medical treatment and fled bleeding from his wounds to Australia, the applicant’s evidence was that he was stabbed many times and while things were not good at the time of his last visit to Australia, he was not thinking of running away.

101.   The Tribunal found the applicant’s evidence as to when he told the gangster or the gangster’s representative, [Mr A], about the disappearance of the website inconsistent.  The Tribunal also found the applicant’s evidence as to his stabbing inconsistent.

102.   The Tribunal does not accept as plausible that the applicant fled bringing [smaller amount] cash into Australia, stuffed into his trousers.  Initially the applicant told the Tribunal that he had brought [amount] into Australia stuffed into his trousers and when it was pointed out that this was more than lawfully allowed, he amended the amount to [smaller amount] stuffed into his trousers.  The Tribunal does not accept that he would be able to pass through two lots of security in two different countries with money stuffed into his trousers and bleeding from chest wounds without the relevant authorities drawing him aside.  The Tribunal also does not accept that the wife sent the remainder of the funds in small amounts to him in Australia via secure mail as the Tribunal does not accept that one would send cash via overseas mail. 

103.   The Tribunal is unable to reconcile the inconsistencies in his evidence and this causes the Tribunal to doubt the applicant ever invested in a Ponzi, “get rich quick” or “the big one/case” or “investment scheme” or Forex investment scheme or used money provided by gangsters to invest in any such scheme. The Tribunal also considers implausible that the applicant would depart Malaysia to fly to Australia with bleeding chest wounds he treated himself and with his trousers stuffed with cash.  After considering his evidence in totality, Tribunal did not consider the applicant a credible witness.

104.   The Tribunal does not accept that the gangsters or any other person are looking for the applicant in Malaysia.  The Tribunal does not accept that the gangsters or any other person have damaged his home and thrown red paint at his house or destroyed his property or threatened his daughter or any other member of his family, looking for him.

105.   The Tribunal accepts the applicant has scarring on his chest as the applicant showed the scarring to the Tribunal at hearing.  However, the Tribunal does not accept that the scarring was caused from any beating by gangsters or any other person as a result of a failed investment scheme. 

106.   After considering the applicant’s evidence, the Tribunal does not accept that the applicant was involved in a Ponzi scheme, “get rich quick” or “the big one/case” or “investment scheme or Forex investment scheme or any other investment scheme where he invested other people’s funds, including funds from the biggest gangster in the Klang area.  The Tribunal does not accept that the scheme closed down and all the investment money was lost.  The Tribunal does not accept that the gangster or any other person threatened and beat the applicant or that he has experienced physical and mental abuse from them or that the gangster or any other person is looking for him.  The Tribunal does not accept that the applicant fled Malaysia bleeding from a beating with money stuffed into his trousers. The Tribunal does not accept that the authorities believe he was involved in any investment scheme as the Tribunal does not accept he was involved in any such investment scheme.

107.   The above matters in combination cause the Tribunal not to accept the applicant ever invested money from gangsters as claimed.  It follows that the Tribunal does not accept that those gangsters ever went to his home or damaged his property or sought to harm him or his family. The Tribunal does not accept the applicant reported the gangsters to police or that he hid from them. The tribunal does not accept that he has been beaten and suffered physical and mental abuse from the gangsters or any other person in relation to his investment scheme.

108.   For these reasons the Tribunal does not accept there to be a real chance that applicant will be targeted, harassed or otherwise harmed by gangsters or any other person if he returns to Malaysia, now or in the reasonably foreseeable future. 

Complementary protection

109.   In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal  has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.  

110.   For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will be targeted, harassed or otherwise harmed by money lenders if returned to Malaysia as claimed. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[6]  For the same reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis. 

CONCLUDING PARAGRAPHS

111.   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).

[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

1. 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).

2. 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

114.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Amanda Goodier
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.

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