1730036 (Refugee)

1730036 (Refugee) [2022] AATA 674 (21 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1730036

COUNTRY OF REFERENCE: Malaysia
MEMBER:K. Chapman
DATE:21 January 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 January 2022 at 2:33pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – fear of loan sharks – criminal gang – gambling debts – physical violence – child born in Australia – state protection – internal relocation – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 14 August 2017. His written claims concern him purportedly borrowing money from loan sharks to settle gambling debts. Additionally, the applicant claims he was threatened and harmed by the loan sharks when he could not repay the funds. The delegate refused to grant the visa on the basis that State protection was available to the applicant if he returns to Malaysia. The applicant applied for review of the delegate’s visa refusal decision on 29 November 2017. He subsequently provided a copy of that decision to the Tribunal.
On 30 November 2021, the Tribunal invited the applicant to attend a hearing in person scheduled for 14 January 2022. Due to the emerging COVID-19 situation in Queensland, on 5 January 2022, the Tribunal amended the hearing mode to telephone to protect the health of all participants.
The applicant appeared by telephone before the Tribunal on 14 January 2022 to give evidence and present arguments. He confirmed to the Tribunal that he was comfortable proceeding with the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages, with the applicant confirming he understood the interpreter service. The Tribunal is satisfied that the applicant received a fair and reasonable hearing using the telephone method and he made no objection at any stage to the conduct of the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in the Act: s.36(2A) and 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.
Relocation
Under s.36(2B)(a) 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 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. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
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 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
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Malaysia. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Issues
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
Documentary evidence before the Tribunal
The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:
a.the applicant’s protection visa application forms lodged on 11 August 2017;
b.the applicant’s identity documents including his Malaysian passport and Malaysian national identity card;
c.an Islamic marriage certificate pertaining to the applicant and [his wife] dated [in] September 2017 (submitted in connection with the applicant’s Bridging Visa application);
d.a bank account confirmation letter issued by [Bank 1] on 14 January 2018, pertaining to the applicant’s wife, [named] (submitted in connection with the applicant’s Bridging Visa application);
e.medical records and receipts issued for purchases of medication pertaining to the applicant’s wife, [named], during her pregnancy (submitted in connection with the applicant’s Bridging Visa application);
f.the Departmental delegate’s visa refusal decision dated 21 November 2017 (a copy of which was provided to the Tribunal by the applicant);
g.the application for review submitted on 29 November 2017; and
h.Departmental administrative and Movement records.
Claims for protection
The applicant has made claims for protection which may be summarised as follows:
a.he borrowed money from loan sharks (Ah Long) to settle gambling debts. He was threatened and beaten by the loan sharks when he could not repay the borrowed funds.
The review hearing
The applicant’s evidence at hearing may be summarised as follows. He informed the Tribunal that he completed his application for protection by himself, he signed the visa application and all his reasons for requiring protection are contained in that application. The applicant initially advised that he understood the contents of his protection visa application and its contents are truthful. He added that he summarised his claims due to limited space on the visa application form.
The applicant hails from Johor Bahru. He is a citizen of Malaysia and no other country. The applicant worked as [an occupation 1] in his home country. When asked by the Tribunal if he had family remaining in Malaysia, the applicant advised that he has his parents and [specified family members]. He told the Tribunal that they ‘are doing well.’
The Tribunal canvassed why the applicant travelled to Australia [in] September 2016, the date reflected in the delegate’s visa refusal decision. He informed the Tribunal that he was running away from Ah Long (loan sharks). The applicant confirmed that he had a Visitor visa upon arrival in Australia and did not apply for a protection visa immediately. He confirmed he believed that he was in danger of serious harm from the Ah Long when he arrived in Australia. This is because he was apparently beaten by them and had to run away from Malaysia. The applicant advised he was a gamer in Malaysia and accrued gambling debts there. He departed Malaysia legally through the main international airport using his own passport.
The Tribunal canvassed with the applicant the chronology of his activities following arrival in Australia. He arrived [at a location] [in] September 2016 and immediately travelled to [City 1]. This was because he apparently met a man on his flight who advised he could obtain work in [City 1] with him. The applicant indicated that he worked illegally for around two years in [a named industry] before he obtained permission to work in this country. When asked why he worked illegally straight after arrival, the applicant responded that he didn’t know what to do and didn’t know much about visas. He added that he met many Malaysians and they advised him how to apply for a visa.
The Tribunal canvassed the applicant’s immigration history with him. Initially, he doggedly maintained he had never been in Australia without a valid visa. When confronted with information from the delegate’s decision indicating he arrived on a Visitor visa [in] September 2016 (therefore his Visitor visa only permitted lawful stay for three months) and he did not apply for a protection visa until 11 August 2017, he conceded he was unlawfully in this country for several months. When the Tribunal raised with him that his denials of being an unlawful non citizen might tend to undermine his credibility, the applicant indicated he misunderstood the questions asked of him. The Tribunal is not persuaded by this response, given its questions were not complex in nature and were carefully raised with him through the interpreter.
When asked by the Tribunal if he suffered any harm in Malaysia, the applicant advised that he was threatened and beaten. When asked by the Tribunal for further details, the applicant advised that he does not want to return to Malaysia because he is traumatised due to what happened to him there. He explained that he has a child born in Australia, which adds to his fears of returning. The Tribunal canvassed those fears with the applicant and he indicated that his child is receiving many benefits in this country, including education and other opportunities. When asked by the Tribunal to further outline his fears of returning with his child, the applicant advised he doesn’t want his child to know he has debts in Malaysia and wants to raise him as a good person.
The Tribunal enquired about the applicant’s family members onshore. He married his wife ([named]) in 2017 and their son is now aged [age]. His wife is a Malaysian citizen and also has a protection visa application pending. When asked by the Tribunal of his wife’s reasons for needing protection, the applicant indicated he did not know as he met her in Australia. He doggedly maintained that because he met her in Australia, he did not know his wife’s reasons for requiring protection. The Tribunal raised with him that this vagary might tend to undermine his credibility, inviting his comment. The applicant replied that he never asked what her reasons were, he just wanted to know if she had a visa when they married. The Tribunal does not find it plausible that the applicant would not have asked his wife of the reasons she required protection.
The Tribunal provided additional opportunities for the applicant to give further evidence regarding his experiences with the Ah Long, any harm he suffered in Malaysia and any fears of future harm if he returns. He confirmed that he had provided all his evidence upon these matters. The Tribunal notes that the applicant provided a dearth of information at the review hearing concerning his purported interaction with loan sharks and harm that he apparently faced in Malaysia, despite being presented with several opportunities to do so. The detail he provided of his claims for protection at the review hearing was manifestly scant. This tends to undermine the legitimacy of these claims in the view of the Tribunal.
The Tribunal canvassed with the applicant why he waited over eleven months following arrival in Australia, including time as an unlawful non citizen, before making his application for protection. The applicant initially responded that when he arrived he didn’t know how to work lawfully, it was only after meeting friends that he knew. The Tribunal raised with the applicant that this delay might tend to suggest his reasons for protection are not genuine, inviting his comment. The applicant replied that he doesn’t understand English well and didn’t have many friends upon arrival. The Tribunal raised with the applicant that he referred in his earlier evidence at hearing to wanting to find work as soon as he arrived in Australia, which might tend to suggest his reasons for protection are not genuine. The applicant was invited to comment and disagreed, indicating he ran away from Malaysia and to survive he had to work.
The Tribunal canvassed country information, including both from DFAT[1] and open source[2][3][4], suggesting that State protection is available for him if he returns to Malaysia. In summary, the applicant maintained that the Malaysian Police would not assist him as they are corrupt, the public did not help him when he was beaten and he is not brave enough to return to Malaysia.
[1] DFAT Country Report - Malaysia, 29 June 2021, paragraphs 2.47, 3.109-3.118 & 5.5.
[2] Malay Mail online, 14 June 2021, Selangor police cripple 10 Ah Long Syndicates: accessed 13 January 2022.
The Tribunal canvassed with the applicant the possibility of relocation within Malaysia to avoid the loan sharks. The Tribunal raised with him that his background, including living and working in Australia, might tend to suggest that he has the attributes to successfully relocate within Malaysia. The applicant was invited to comment and he advised he has a wife and son in Australia and cannot return to Malaysia. He is scared and traumatised by the events with the loan sharks. The Tribunal canvassed with the applicant that as his wife is a Malaysian citizen, their son would also hold Malaysian nationality. The applicant was unsure of this. He explained that his intention, and that of his wife, is to remain in Australia permanently with their son. The Tribunal canvassed with the applicant country information from DFAT[5] concerning relocation within Malaysia. The Tribunal raised with him that this country information might tend to suggest that he can relocate within Malaysia to avoid the people he says have caused, or might cause, him harm. The applicant was invited to comment and was adamant that he fled Johor because the loan sharks chased him, adding he couldn’t even move to Thailand. He obtained the support of his family in Malaysia to come to Australia and they provided financial support for him to do so.
[5] DFAT Country Report - Malaysia, 29 June 2021, paragraphs 5.26-5.28.

The Tribunal canvassed with the applicant country information from DFAT[6] regarding exit and entry procedures in Malaysia. The Tribunal raised with him that this country information might tend to suggest he is of no adverse interest to the Malaysian authorities, given he was able to depart the country through the airport using his own passport. The applicant was invited to comment and replied that he didn’t know anything about this.
[6] DFAT Country Report - Malaysia, 29 June 2021, paragraphs 5.29-5.36.
The Tribunal advised the applicant it had not made up its mind on his application. The Tribunal then raised some potential concerns with his application including, the vagary of his initial written claims for protection; the scant detail he provided of his claims for protection at the review hearing; the significantly delay in claiming protection after arrival in Australia (including being an unlawful non citizen for a time and seeking work immediately upon arrival) which might tend to undermine the genuineness of his claims; the lack of persuasive corroborating evidence; his vagary concerning his wife’s need for protection might tend to undermine his credibility; and the country information tends to suggest he does not face a real chance of serious or significant harm in Malaysia for any reason. The applicant was invited to comment and replied that he appeals for a protection visa to be granted to him and his family. Prior to the conclusion of the review hearing, the applicant confirmed he had no further evidence to submit.
Analysis
That a person claims to fear persecution for a particular reason does not of itself 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: 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. Section 5AAA of the Act also provides that it an applicant’s responsibility 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 such claim.
The Tribunal accepts the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. During the conduct of the review, the Tribunal developed serious concerns with the credibility of the applicant for the following reasons. He provided manifestly scant detail of his claims for protection at the review hearing and also in written form. He did not provide a persuasive explanation for the significant delay in making his claims after arrival in Australia. Rather, he initially advised he fled the loan sharks to come to Australia, prepared his claims for protection himself and understood them. Yet, he subsequently attempted to justify the significant delay in claiming protection after arrival by indicating he didn’t understand English and didn’t know how make a visa application. When the applicant’s initial spontaneous evidence is considered together with his exuberance to obtain work in this country immediately after arrival, the Tribunal does not accept the applicant’s explanation for the delay in lodging his protection visa application. On balance, the Tribunal is satisfied that the applicant travelled to Australia to work illegally and his delay in claiming protection is suggestive of his claims being fabricated. The Tribunal also finds it implausible that the applicant would not have discussed with his Malaysian wife her reasons for also needing a protection visa and this further undermines his credibility. The Tribunal also notes that no persuasive corroborating evidence was submitted by him in support of his claims for protection.
Having regard to the matters above, the Tribunal does not accept that the applicant is a witness of candour. Accordingly, the Tribunal does not accept the veracity of his claims for protection. Rather, the Tribunal finds that the applicant fabricated his claims for protection, in an attempt to remain living and working in Australia.
Therefore, the Tribunal does not accept that the applicant (or any member of his family) has ever interacted with loan sharks in Malaysia. Further, the Tribunal does not accept that he (or any member of his family) has ever faced, or would ever face, any harm in Malaysia from loan sharks, or any other criminal gang, or any other person. It follows that the Tribunal is not satisfied that Australia’s protection obligations are invoked on the basis of any of the claims that have been raised by the applicant.
For completeness, the Tribunal has further considered the country information relating to State protection, which is referred to above, and finds that the applicant would be able to avail himself of protection from the Malaysian authorities if he returned to that country. Additionally, the Tribunal has considered the country information regarding internal relocation and finds that it would be reasonable for the applicant to relocate within Malaysia to avoid those he purportedly fears might cause him harm, noting he has demonstrated versatility in being able to travel to Australia and find employment. It follows that even if the Tribunal accepted the veracity of his claims that he faced harm from loan sharks, which it does not, the applicant would not be entitled to protection. Furthermore, the applicant’s wife and son are citizens of Malaysia with there being no impediment to the family unit returning together to their country of nationality, or relocating within it.
CONCLUSION
Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
K. Chapman
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.
…

[3] The Star online, 10 April 2021, Police cripple four ‘ah long’ syndicates with 29 arrests: accessed 13 January 2022.

[4] Free Malaysia Today, 30 January 2021, Ah Long ‘call centres’ silenced, 200 phones seized in police blitz in Johor: accessed 13 January 2022.

[2022] AATA 674

21 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction