1728406 (Refugee)

1728406 (Refugee) [2023] AATA 2545 (15 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1728406
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Simone Burford
DATE:15 June 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 June 2023 at 12:38pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – economic reasons – applicant has not provided any evidence regarding his personal circumstances or outlined his claims – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424
Migration Regulations 1994, Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147

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 8 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [age]-year-old Malaysian citizen. According to his application for the protection visa he is Buddhist and identified himself as ethnically Chinese and was born in Sarawak, Malaysia. He indicates he is a Malaysian citizen by birth and both his parents are Malaysian citizens.
According to the delegate’s decision, a copy of which the applicant provided to the Tribunal with his application for review, he initially arrived in Australia on [date] July 2017 on a UD-601 Electronic Travel Authority visa. He applied for the protection visa on 22 August 2017.
ISSUES
The issues in this review are whether there is a real chance that, if he returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Protection claims
Protection visa application
As noted above, according to his application for the protection visa, he is Buddhist and identifies himself as ethnically Chinese. The applicant’s application states he was born in Sarawak, Malaysia. He indicates he is a Malaysian citizen by birth and both his parents are Malaysian citizens. He indicates he speaks Chinese. He has never been married or in a de facto relationship. He does not identify the details of any family members in Australia or overseas and indicates he is not in contact with relatives outside Australia. He indicates he has no personal contacts in Australia.
He did not list any residential addresses other than one in Australia from July 2017, which was current at the time the application was made. He indicated that at the time the application was made he was unemployed. He did not provide any details of employment or unemployment in Malaysia. He did not provide any details of his education history.
The applicant initially presented his claims in his protection visa application, which he signed on 30 July 2017. In his application he stated, in summary, that:
·He left Malaysia due to “political issue and economic issue”;
·If he returns to Malaysia, he will have “no job” and he cannot support his family and himself. He also identified this as the harm he had experienced in Malaysia;
·He sought help in Malaysia by way of a “friend” suggesting he come to Australia;
·He sought safety from harm elsewhere in Malaysia by applying for many jobs in Malaysia “but failed because of economy and political issue in Malaysia”;
·He will be harmed or mistreated if he returns to Malaysia because he has no job and cannot support himself and his family;
·He does not think that the authorities will protect him because “Malaysia has bad economy and political issue”;
·He would not be able to relocate because “political and economic issue happen in whole Malaysia”.
The applicant submitted a copy of his Malaysian passport issued on [date] 2017 to the Department. He did not provide any other documents or evidence in support of his application to the Department.
The applicant was not interviewed by the Department in relation to the application.
The delegate’s decision
The delegate refused the visa on 8 November 2017. The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.
The delegate found that the applicant had not claimed to fear harm in Malaysia because of his race, religion, nationality, political opinion or as a member of a particular social group. The delegate considered there was no information to suggest that the applicant would be targeted in Malaysia for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The delegate was not satisfied that there was a real chance they would be persecuted for one of the reasons mentioned in s 5J(1)(a) of the Act on return to Malaysia. Therefore, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
The delegate found the country information at the time indicated that the economic climate in Malaysia affects everyone and that the economic harm the applicant may suffer on his return does not amount to significant harm. The delegate also found there is no real risk of the applicant facing significant harm, as defined in s 36(2A), if he returns to Malaysia in the foreseeable future.
The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that he will suffer significant harm. Accordingly, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act.
Review application
The applicant filed his application for review on 15 November 2017. He provided a copy of the delegate’s decision and notification letter to the Tribunal with his application for review. He did not provide any other material to the Tribunal in support of the application for review. There was no record on the Tribunal file of the applicant being represented in relation to his application for review.
The Tribunal wrote to the applicant on 20 January 2023, pursuant to s 424(2) of the Act, inviting him to provide information in relation to his application. The information sought related to the applicant’s current circumstances and claims for protection. The invitation also gave the applicant an option as to whether he wished to have a hearing to give evidence and present arguments about the decision under review. The invitation noted that if the applicant consented to the Tribunal making a decision on the review without the applicant appearing before the Tribunal, the applicant would not be invited to appear at a hearing to give evidence or present arguments relating to the issues in his case. The invitation noted that the Tribunal’s decision would be made based on the information and evidence before it, including any further information or evidence the applicant may provide, and the Tribunal may consider issues that were not previously considered by the primary decision maker. The invitation also noted that the Tribunal may either affirm or set aside the decision under review. The invitation required a response by 3 February 2023.
On 8 February 2023 the applicant responded to that invitation. In response to the question ‘Do you wish to have a hearing to give evidence and present arguments about the decision under review?’ the applicant ticked ‘No’. The invitation went on to ask, ‘If you ticked ‘No’ above, do you consent to the Tribunal making a decision on your review application without you appearing before the Tribunal to give evidence and present arguments?’ The applicant also ticked ‘No’ in response to that question.
The applicant’s response also indicated that he did not wish to add to or update his claims for protection and that there was no other information in his original protection visa application which he wished to change or update. He also indicated there was no other information he wished the Tribunal to be aware of. He indicated he did not wish to call any witnesses. No other family members were identified in the response.
Despite the applicant’s response to the invitation being out of time, as it was unclear from the applicant’s response whether he sought to appear and whether he understood that if he did not wish to appear, the Tribunal would be proceeding to make a decision without inviting him to appear before it to give evidence and present arguments, the Tribunal wrote again to the applicant on 19 April 2023 to clarify his position. The correspondence asked the applicant if he ‘[c]ould confirm by replying to this email, whether you would like the opportunity to attend a hearing at the Tribunal.’ The Tribunal noted it was seeking confirmation because he had ticked 'No' to Question 2 on the 424(2) Applicant Information Form that he provided on 8 February 2023, and noted that if he did not want the opportunity to appear, the review application may proceed to a decision on the papers.
Later on the same date, 19 April 2023, the applicant replied to that email stating ‘No, please proceed with the decision’.
On 18 May 2023, the Tribunal wrote to the applicant pursuant to s 424(1) of the Act acknowledging confirmation that he consented to the Tribunal making a decision on his application without him appearing to give evidence and present arguments. The Tribunal confirmed that it would proceed to decide the review without conducting a hearing and that it would not hear evidence from any witnesses. The Tribunal invited the applicant to provide any further information or evidence he wished to make by 1 June 2023. As at the time of this decision, no further information or evidence have been.
Accordingly, the Tribunal has proceeded to determine the application for review without taking any further action to enable the applicant to appear before it.
APPLICANT’S IDENTITY AND COUNTRY OF REFERENCE
The applicant claims to be a citizen of Malaysia. The applicant provided a copy of his Malaysian passport issued on [date] 2017 to the Department. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.
The Tribunal finds that the applicant is a citizen of Malaysia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
RELEVANT LAW
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). 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 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).
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
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.
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).
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.
‘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.
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.
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] FCAFC 147.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The delegate’s decision contains a summary of the applicant’s claims and relevant country information. Noting that the applicant has advised the Tribunal in writing that he did not want to make changes to these claims, the Tribunal finds that the delegate’s summary of the applicant’s claims for protection was a fair and accurate summary of the claims for protection notified by the applicant in his original application form, when seeking protection.
Economic and political claims
The Tribunal notes the delegate’s decision includes information from the DFAT Country Information Report: Malaysia, published on 19 July 2016 (the 2016 DFAT Report), which provided an overview of the economy and employment in Malaysia.
The Tribunal has had regard to relevant portions of the most recent DFAT Report for Malaysia, the DFAT Country Information Report: Malaysia, dated 29 June 2021 (the 2021 DFAT Report). According to the 2021 DFAT Report: [1]
2.9The World Bank classifies Malaysia as an upper middle-income, export‑oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 86.5 per cent of Malaysia’s exports in 2020. Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the government’s largest single revenue source.
2.10According to the World Bank, following the Asian financial crisis of 1997‑98, Malaysia’s economy was on an upward path (until COVID‑19), averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. This may be delayed somewhat by the effects of COVID‑19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.
2.11Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called ‘B40’ who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16‑20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.
2.12In 2020, Malaysia’s economy was hit with the dual shock of COVID‑19 and a decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID‑19. The economy is expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. The Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages. Measures included wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants of MYR3,000 (AUD 950) to qualifying SMEs and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.
[1] 2021 DFAT Report at 3.65.

The Tribunal considers that the relevant sections of the 2021 DFAT Report are broadly consistent with the information contained in the delegate’s decision, updated to take account of current economic data.
The Tribunal notes that the applicant signed his original application form and declared that the information supplied was complete, correct and up to date in every detail (Part C, Question 1). The Tribunal also notes that s 101 of the Act provides that a non-citizen must fill in or complete their application form in such a way that all questions on it are answered and that no incorrect answers are given or provided. Section 98 of the Act provides that where an applicant does not fill in his or her application form or passenger card themselves, they are taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
The applicant claims to fear harm on the basis that he will have no job in Malaysia because of the political and economic situation of the country and he will be unable to support himself or his family. The applicant did not identify any family members in his application form or in his information to the Tribunal.
The Tribunal finds that the applicant has provided no evidence to support his claims for protection either at the primary or review stage. He was provided with two opportunities in writing to provide further information to the Tribunal with respect to his claims and circumstances, and he did not provide any information or evidence relevant to his claims for protection, including in response to issues raised in the delegate’s decision refusing his protection visa application.
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact 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.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[2]
[2] Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 at [57] (per Gummow and Heydon JJ; Gleeson CJ concurring); WAKK v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 225 at [73] citing WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277.
The Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. [3] 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.
[3] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.
The applicant has not provided any evidence regarding his personal circumstances or outlined his claims in sufficient detail for the Tribunal to be satisfied that his particular circumstances would lead him to face a real chance of serious or significant harm on return to Malaysia.
The Tribunal notes that, absent other considerations, economic circumstances are circumstances of general application in a country and lack the degree of particularity required to give rise to protection obligations under the refugee criterion or the complementary protection criterion.[4]
[4] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 248, 257-258; Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 (Gummow J (with whom Gleeson CJ and Hayne J agreed) at 49); Minister for Immigration, Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191; and BBK15 v Minister for Immigration and Border Protection [2016] FCA 680.
With respect to the refugee criterion, the applicant provided no evidence of any particular circumstance applying to him which would lead him to face a real chance of serious harm on account of his race, religion, nationality, membership of a particular social group or political opinion. Though the applicant made reference to ‘political issues’ in Malaysia, he provided no details of any claim to fear harm on the basis of a real or perceived political opinion or political association. There is no information before the Tribunal to suggest that the applicant will be subjected to harm on his return to Malaysia on the basis of his real or imputed political opinion or for any other of the reasons mentioned in s 5J(1)(a) of the Act. In particular, he has not raised any basis on which the economic hardship he claimed he will suffer arises by reason of race, religion, nationality, membership of a particular social group or political opinion.
Further, the Tribunal refers specifically to s 5J of the Act relating to a well-founded fear of persecution in a country, particularly the requirement that the persecution must involve systematic and discriminatory conduct. Generalised economic circumstances in a country do not meet the requirements of systematic and discriminatory conduct in the absence of other considerations and do not constitute persecution or discrimination within the meaning of s 5J(4). The Tribunal finds that the applicant has not provided any evidence that the economic or political circumstances which he referred to in very general terms in his claims amount to systematic and discriminatory conduct with respect to him.
Accordingly, and having regard to the applicant’s individual circumstances and the country information regarding the economic circumstances in Malaysia, the Tribunal finds that the applicant would not face a real chance of serious harm on return to Malaysia now or in the reasonably foreseeable future on this basis.
While the Tribunal accepts the applicant would have to resettle in Malaysia, and find employment there, the Tribunal is not satisfied that he faces a real chance of suffering persecution involving serious harm for one or more of the five reasons mentioned in s 5J(1)(a) of the Act if he returned to Malaysia.
The applicant also failed to provide any detail of activity or fears related to the prevailing political circumstances, or ‘political reasons’, in Malaysia. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm for the purposes of the refugee criterion in Malaysia, now or in the reasonably foreseeable future, arising from ‘economic or political’ circumstances in Malaysia.
Given the above considerations, the Tribunal finds that there is no real chance the applicant would suffer serious harm should he return to Malaysia now or in the reasonably foreseeable future. The Tribunal finds the applicant does not meet the criteria for protection under s 36(2)(a).
As the Tribunal finds the applicant is not owed protection under s 36(2)(a), the Tribunal has considered the applicant’s claims under s 36(2)(aa), the complementary protection ground.
For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to Malaysia on the basis of prevailing economic or political circumstances in Malaysia. The ‘real risk’ test imposes the same standard as the ‘real chance’ test.[5] To the extent that the definitions of ‘serious harm’ and ‘significant harm’ differ, the Tribunal is satisfied that economic hardship falling short of denial of the ability to subsist does not constitute ‘significant harm’ of the kind contemplated by ss 36(2A) and 5(1).
[5] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
The Tribunal also notes that in order to give rise to a real risk of significant harm under the complementary protection assessment, a similar motivation of harm towards the applicant from identifiable agents of harm is required. On the basis that the applicant has not provided any evidence of an identifiable agent of harm motivated to cause him significant harm in Malaysia, the Tribunal finds that he has not made out his case to the relevant standard.
Noting the findings the Tribunal has already detailed relating to the applicant’s claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm now or in the reasonably foreseeable future on this basis as a result of the prevailing economic or political circumstances in Malaysia as claimed.
CONCLUSION
Taking the applicant’s claims individually and cumulatively, at their highest, they do not meet the required thresholds under either the refugee assessment criteria or the alternative complementary protection assessment criteria.
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)(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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Simone Burford
Senior 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 2545

15 June 2023

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