1730529 (Refugee)

1730529 (Refugee) [2019] AATA 155 (14 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1730529
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Alison Murphy
DATE:14 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 14 January 2019 at 11:53am

CATCHWORDS
REFUGEE – cancellation – protection visa – Malaysia – threats of torture and death from father-in-law – non-compliance with s 101(b) – provided incorrect answers in visa application – provided incorrect information to Tribunal – credibility issues – parents-in-law supportive of marriage – best interests of the child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 99, 101, 107, 109, 140, 438, 424A
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
MIAC v SZQRB [2013] FCAFC 33
Wan v MIMA [2001] FCA 568
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 on 1 December 2017 to refuse to cancel the applicant’s protection visa under s.109 of the Migration Act 1958 (the Act).
The applicant is a [age] year old Malaysian male who first arrived in Australia [in] December 2012 as the holder of a [visitor] visa valid until 4 March 2013. He applied for a protection visa on 18 May 2015, claiming to fear harm from his girlfriend’s father because of their relationship. A delegate of the Minister refused to grant the applicant a protection visa on 19 November 2015, not accepting the applicant was a person to whom Australia owed protection.
The applicant sought a review of the delegate’s decision from this Tribunal and on 19 April 2016 the Tribunal (differently constituted) found that the applicant satisfied the criteria in s.36(2)(aa) of the Act. By this stage the applicant had married his girlfriend, [Ms A]. In particular the Tribunal accepted his claims to have been threatened, detained and physically harmed by his wife’s father because of their relationship. The Tribunal accepted that if returned to Malaysia, there was a real risk the applicant would be subjected to assault, significant harassment and other forms of treatment or punishment because of his relationship with his wife.
The Department of Home Affairs (the Department) subsequently became aware of information that it considered contradicted the applicant’s claims for protection, including that the applicant’s wife’s parents attended their wedding in Australia, as well as other information that the delegate considered indicated that her parents were in fact supportive of the relationship.
In a notice issued under s.107 of the Act dated 6 September 2017, a delegate of the Minister informed the applicant that she considered he had not complied with s.101(b) of the Act in that he had provided incorrect information in his application for a protection visa about his wife’s parents’ objection to their relationship and his fear of harm from his wife’s father.
On 1 December 2017 a delegate of the Minister cancelled the applicant’s visa and on 4 December 2017 the applicant applied to this Tribunal for a review of the decision.
The issues in the review are whether there was non-compliance in the way described in the notice sent to the applicant, and if so, whether the visa should be cancelled. A summary of the relevant law is set out in Attachment A.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
HISTORY OF PROCEEDINGS
The applicant and his wife [Ms A] appeared before the Tribunal on 18 October 2018 to give evidence and present arguments, and this application was heard together with the review application of [Ms A] (AAT proceedings 1730528).
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was not initially represented in his review application. On 25 October 2018 the Tribunal wrote to the applicant pursuant to the processes set out in s.424A of the Act. The applicant subsequently appointed a representative who made submissions and provided further documents to the Tribunal.
Non-disclosure certificate
The Departmental file contains a certificate issued pursuant to s.438(1)(a) of the Act dated 14 December 2017. At the commencement of the hearing, the Tribunal advised the applicant of the existence of the certificate and the reasons given by the Department for issuing that certificate. The Tribunal advised the applicant that the certificate prevented the Tribunal from disclosing some parts of his file, because the information and documents covered by the certificate related to third parties. The Tribunal gave the applicant a copy of the certificate at the hearing and invited him to make submissions about the validity of the certificate, either at the hearing or after the hearing in writing if he preferred.
The Tribunal advised the applicant that the information covered by the certificate related to the Department’s investigation of his wife’s family members’ travel into and out of Australia around the time of their wedding in September 2015. The Tribunal advised the applicant that to the extent it considered that information was adverse to his review application, the Tribunal would provide further details of that information and give him an opportunity to respond to it. Further details of that information were provided to the applicant at hearing and in the Tribunal’s letter pursuant to s.424A of the Act.
No submissions were received by the applicant about the validity of the certificate, either during or after the hearing.
THE SECTION 107 NOTICE
Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.
On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 6 September 2017 advising him that his visa may be cancelled under s.109 because it appeared he may not have complied with s.101(b) of the Act (visa applications to be correct). The applicant was invited to respond to the NOICC and he responded to the s.107 notice by way of a statutory declaration dated 20 September 2017.
No issue has been raised in this review by the applicant as to the validity of this notice. Considering that document as a whole, the Tribunal is satisfied it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him the required opportunity to respond.
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101.
In the notice issued under s.107 of the Act dated 6 September 2017, a delegate of the Minister informed the applicant that she considered the applicant had not complied with s.101(b) of the Act in that he had provided incorrect information in his application for a protection visa to both the Department and the Tribunal. The s.107 notice noted that s.99 of the Act provides that the duty to fill in or complete his or her application form correctly extends to information given or provided orally or in writing to the Minister, a Departmental officer or the Tribunal. The information contained in that notice can be summarised as follows:
·The applicant claimed in his protection visa application that he was seeking protection so that he did not have to return to Malaysia, where his life was in danger from his girlfriend’s father. He claimed his girlfriend’s father had tortured him, that he would never let them live together and would try to kill them if they returned to Malaysia. He claimed his girlfriend’s father was a [occupation] who would never let them go anywhere and had put his girlfriend under house arrest. He claimed that if returned to Malaysia, he and his girlfriend would be tortured physically and mentally and the Malaysian authorities would not take any action to protect them because this was not a crime. He claimed he could not move to another part of Malaysia because his girlfriend’s father would find them very easily.
·On 15 April 2016 the applicant appeared before the Tribunal and provided further information about his claims, including that he feared serious harm at the hands of his wife’s father who objects to their relationship because he does not make enough money, is not qualified and is younger than his girlfriend (now wife). He claimed he left Malaysia to join his wife in Australia and get away from her father. He claimed his wife got pregnant in 2008 and her father forced her to have an abortion, and just prior to this, his wife’s father met them on the street where he verbally warned the applicant not to be with her. The next time he saw his wife’s father was when he arrived at the apartment his wife was staying in and tried to take her home. The applicant blocked him from doing so, his wife escaped and the applicant was assaulted by his wife’s father. He was later assaulted by a group of Malay men at his workplace who warned him to end the relationship. Based on this information the AAT accepted the applicant was owed protection and the applicant was subsequently granted a protection visa by the Department;
·On 14 July 2016 the applicant’s wife [Ms A] provided a completed form 80 “Personal particulars for assessment including character assessment” which included details of her parents, identifying her father as [Mr B]. Information before the Department indicated that both of her parents travelled to Australia a few days before the applicant’s wedding [in] September 2015 and photos of the wedding uploaded onto his wife’s [social media] account [in] September 2015 included pictures of persons who appeared to be her parents. Several of those [social media] posts also indicated his wife was friends with and maintained contact with her father [Mr B]. The applicant’s marriage certificate recorded his wife’s, father [Mr B], was an official witness to their wedding [in] September 2015 in [Suburb 1], [State 1].
The s.107 notice advised the applicant that the delegate considered he had provided incorrect information to the Department and the Tribunal in relation to his protection visa application. In particular that notice identified the following information as being incorrect:
·The applicant’s response to question 90 of his visa application form, in which he stated that he left Malaysia because his life was in danger as his parents-in-law did not agree with his relationship and had beaten him and his wife. The s.107 notice advised the applicant that information appeared to be incorrect as both of his wife’s parents attended their wedding, with her father being an official witness to it, indicating that they were aware of and approved of the marriage;
·The applicant’s response to question 91 in which he stated if returned to Malaysia his father-in-law would try and kill him. The s.107 notice advised the applicant that information appeared to be incorrect as both of his wife’s parents travelled to Australia and were present for the wedding [in] September 2015, indicating that they were aware of and approved of the marriage. Further, his father-in-law attested to their marriage as a declared witness;
·The applicant’s response to question 95 in which he stated that he and his (then) girlfriend would be tortured physically and mentally until death by his wife’s parents. The s.107 notice advised the applicant that information appeared to be incorrect as both her parents travelled to Australia and were present for her wedding [in] September 2015, indicating that they were aware of and approved of the marriage.
The applicant responded to the s.107 notice by way of a statutory declaration dated 20 September 2017. In that statutory declaration, he stated that he had a genuine fear of returning to Malaysia and denied providing false, incorrect or misleading information to the Department or the Tribunal. He stated that if returned to Malaysia, he faced a real risk of significant harm from his father-in-law, involving severe physical and mental pain and suffering, intentionally inflicted on him, and he would also be subjected to cruel or inhuman treatment and punishment. He maintained his claims for protection were entirely true and correct and provided further information about his wife’s family’s attendance at their wedding (in summary):
·His father-in-law was not invited to the wedding; rather his wife invited her older sister and asked her not to inform his father-in-law. His wife’s older sister told her parents about the wedding and his father-in-law attended their wedding with the intention of blackmailing and extorting the applicant and his wife;
·His father-in-law threatened that unless they paid him $[amount], he would humiliate them in front of the applicant’s family and interrupt and destroy their wedding. He said he had a business debt of $[amount] and needed $[amount] from them, arguing that they must respect him and obey his request;
·He and his wife were shocked at this unexpected situation but wanted to be happy on their wedding day and did not want any disruption or issues to occur, and so concluded the only way to save their wedding day was to pay him $[amount] and promise to pay him the rest of the money in two months. They also agreed to his request that he be a witness to their wedding because he wanted his name to be on their marriage certificate, and in their culture their marriage was not valid without his blessing;
·The applicant doesn’t know why his father-in-law who had caused them so much pain wanted to be a witness, or whether his intentions were good or bad. They were not happy with his request but decided to proceed so they could be finally married;
·After the wedding ceremony, they gave $[amount] cash to his father-in-law and this was the last contact they had with him. A week later, his wife received a call from her sister, [Ms C], who told her their father was angry and requesting the remaining $[amount]. The applicant and his wife refused and told her sister to tell her father that they would not pay him one dollar more. The next day his wife received another call from [Ms C] who said that their father was now very angry and had threatened to harm them if they didn’t pay. He and his wife were stressed and anxious and decided to cease contact with her sister;
·His answers to questions 89-97 on his form 866C are entirely true;
·His father-in-law’s blackmail was not mentioned to the Tribunal as he was under the impression that no new claims could be added during the review process. He was not represented and believed they were only permitted to clarify claims already made at the time of the visa application. Another reason for not mentioning it to the Tribunal was that the Tribunal hearing took place seven months after the blackmail incident;
In a further statutory declaration dated 4 December 2017 and submitted to the Tribunal, the applicant continued to maintain his claims for protection were true and correct and he has a genuine fear of harm from his father-in-law if returned to Malaysia. He re-stated some of his earlier claims and provided the following additional information (in summary):
·His wife has not maintained contact with her family members even via social media and had set up her account so her family members couldn’t initially see her posts on her timeline;
·His wife’s sister requested she pay the remainder of the money via her [social media] account and his wife blocked her sister’s account after twice receiving threats. His wife had forgotten his sister ever used her father’s account to add her on social media, and it seems his father-in-law’s account was not active as none of her family members ever contacted her after that;
·The photos his wife posted of her wedding show her standing next to her parents but obviously [disapproving of] her father and smiling uncomfortably, even crying badly. They cannot provide any evidence of the money paid to her father as they paid him with cash;
·They did not provide information about the events surrounding their wedding to the Tribunal because his father-in-law did not beat them but blackmailed them and they didn’t know that information would likely have strengthened their claims for protection. Also they thought the issue had ended;
·He applied for a protection visa on 18 May 2015 and his wife’s parents appeared at his wedding [in] September 2015, which was four months later.
·His wife is [number] weeks pregnant and they fear her father may force her have an abortion again as he did in [Country 1]. The applicant donates money to some small charities and was a volunteer for [specified community event].
For the reasons set out in detail below, I hold very serious concerns about the credibility of the applicant’s claims to fear serious harm from his father-in-law if he returns to Malaysia. For the reasons set out in detail in my decision relating to the cancellation of his wife’s protection visa (AAT 1730528), I accept some aspects of his wife’s evidence about her relationship with her father and his objections to her relationship with her husband.
In particular I have accepted that the applicant’s wife father was violent towards her during her childhood and teenage years, although I have not accepted this continued into her adulthood. I accept his wife’s father initially opposed the applicant’s relationship with his wife, for reasons including that the applicant was younger than her and her father believed he hadn’t yet achieved anything, the applicant was poor and relatively uneducated compared to his wife and he worked in a low level position in the [specified] industry while his wife was a skilled worker. The applicant’s wife was born in the year of the [Zodiac Sign 1] while the applicant was born in the year of the [Zodiac Sign 2], which also made them a poor match according to the family’s beliefs. I further accept that when the applicant’s wife fell pregnant in 2008, her father flew to [Country 1] and pressured her to have an abortion, driving her to the clinic. In making that assessment, I note the relationship was at that time in its early stages and the applicant’s wife gave evidence her parents had expected they would arrange her marriage and had begun looking for a suitable husband.
At hearing, the applicant and his wife also provided further information about their relationship, the reaction of the applicant’s father-in-law and the events surrounding their wedding. Their evidence about their relationship and the applicant’s father-in-law was generally consistent with their prior statements to the Department and the Tribunal. They gave consistent evidence that their relationship had commenced in 2008 while the applicant’s wife was living and working in [Country 1] and the applicant lived in Malaysia. They gave evidence that the applicant’s father-in-law had objected to that relationship from the moment he became aware of it, while the applicant’s parents had no difficulty with the relationship. They gave evidence that the applicant’s father-in-law had beaten, harmed and threatened the applicant on a number of occasions, as well as forcing the applicant’s wife to have an abortion in [Country 1] in 2008 and hitting her on another occasion.

However, given my very serious concerns about the truthfulness of the applicant’s claims as to more recent events and my findings below, I do not accept the claims that the applicant’s father-in-law and/or his associates attacked, harassed and or beat the applicant or his wife in 2008, 2009 or 2010 or at any other time because her parents disagreed with her choice of partner. For the reasons set out in detail below, I do not accept the applicant’s father-in-law or any other family member continues to oppose their relationship, nor do I accept that they would seek to harm the applicant or his wife if they returned to Malaysia, now or in the reasonably foreseeable future.
The applicant’s arrival in Australia and application for a protection visa
The applicant arrived in Australia in December 2012 as the holder of a tourist visa valid for three months, a few days after his wife arrived. They overstayed their visas by two and a half years without applying for any other visa. The applicant’s wife gave evidence that after she arrived in Australia, she asked the applicant to join her and he arrived shortly afterwards. They found work in regional [State 2], the applicant as a [Occupation 1] and his wife as a [Occupation 2]. They made applications for protection visas after meeting a Hong Kong backpacker who knew an agent that helped them to apply for the visa.
They lodged their protection visa applications on 18 May 2015, four months prior to their wedding [in] September 2015. As set out in the s.107 notice, the applicant claimed in his protection visa application that he was seeking protection so that he did not have to return to Malaysia, where his life was in danger from his girlfriend’s father. He claimed his girlfriend’s father had tortured him, would never let them live together and would try to kill them if they returned to Malaysia. He claimed his girlfriend’s father was a [occupation] who would never let them go anywhere and put his girlfriend under house arrest. He claimed that if returned to Malaysia, he and his girlfriend would be tortured physically and mentally and the Malaysian authorities would not take any action to protect them because this was not a crime. He claimed he could not move to another part of Malaysia because his girlfriend’s father would find them very easily.
Events surrounding at the applicant’s wedding [in] September 2015
As evidenced by the marriage certificate submitted to the Department by the applicant, the applicant married her husband in Australia [in] September 2015 in [Suburb 1], [State 1].
The applicant and her husband have given evidence about their protection claims at two Tribunal hearings:
·A Tribunal hearing conducted before another Member on 15 April 2016 in respect of their applications for review of the decisions to refuse them protection visas (the first Tribunal hearing); and
·A Tribunal hearing conducted before me on 18 October 2018 in respect of their applications for review of the decisions to cancel their protection visas (the second Tribunal hearing).
At the first Tribunal hearing, the applicant and his wife gave evidence that none of her family members had attended her wedding or were aware that the applicant and his wife had married. In his statutory declaration dated 20 September 2017, he stated his wife had invited her older sister, who told her parents about the wedding, and her father had in fact attended their wedding, although he stated her father’s attendance was only for the purpose of blackmailing the applicant and his wife. He stated that he didn’t mention his father-in-law’s blackmail to the first Tribunal as he was under the impression that no new claims could be added during the review process. He stated he was unrepresented and believed they were only permitted to clarify claims already made at the time of the visa application. He also stated that the blackmail incident was over by the time of the first Tribunal hearing.
At the second Tribunal hearing, I raised with the applicant and his wife the issue of their credibility and advised them I was having difficulty accepting parts of their evidence. I advised them that I was particularly concerned that they gave incorrect evidence to the first Tribunal that the applicant’s wife’s parents did not know about their wedding, as it was now apparent that the applicant’s parents and sisters knew about and attended the wedding. The applicant acknowledged that was the case and said they hadn’t mentioned it to the first Tribunal because at the time of the hearing, they didn’t believe the applicant’s father was still a threat. The applicant’s wife said she had misunderstood the first Tribunal’s question because she had tried to communicate in English, believing she had been asked about the situation at the time she lodged her application. I do not accept these explanations, noting that an interpreter was present at the hearing and the applicant and his wife did in fact give evidence to the first Tribunal about their wedding in September 2015. I am satisfied that the applicant and his wife knowingly gave incorrect information to the first Tribunal to the effect that the applicant’s wife’s family were not aware of and did not attend their wedding in September 2015.
In relation to the events that occurred at the time of the wedding, the applicant and his wife gave consistent evidence at the second Tribunal hearing to the effect that their respective families had never met before the day of the wedding and they had never told the applicant’s parents about the problems they were having with his wife’s father. They said that they had not invited the applicant’s wife’s parents to the wedding, but had invited the applicant’s wife’s sister. The applicant’s wife gave evidence that this was because the her parents were asking questions about why no-one from her family was attending the wedding and she wanted blessings from her family. Her sister had told her she was unsure whether she would be able to attend the wedding but had asked for the address anyway.
The applicant and his wife gave consistent evidence the applicant’s parents were invited to the wedding and arrived a few days before the wedding, staying together with the applicant and his wife in an apartment [in City 1], before returning to [City 2] for the wedding. In response to direct questions by me, they each gave evidence that the applicant’s wife’s parents did not go with them to [City 1] and they did not see the applicant’s wife’s parents during their trip to Australia, other than at the wedding itself. They each gave evidence they were not aware the applicant’s wife’s parents were in Australia until they arrived unexpectedly on the day of the wedding together with the applicant’s wife’s sister and her husband. They gave consistent evidence that the applicant’s parents had never met his wife’s parents and had no knowledge of the problems the applicant and his had with her father.
After hearing this evidence, I advised the applicant that material contained on the Departmental file indicated the applicant’s parents and his wife’s sister, [Ms D], and parents all travelled into and out of Australia on the same flights and stayed in the same block of apartments in [State 3] during their stay. I advised the applicant and his wife that the applicant’s parents listed his wife’s father as their emergency contact while in Australia, which suggested to me that the families were friends and that they were supportive of the relationship and the marriage. I advised the applicant and his wife that I considered that information to be inconsistent with their evidence that the applicant’s parents had never met his wife’s parents, that they were not aware the applicant’s wife’s father was coming to the wedding and that they did not see the applicant’s wife’s parents during their visit to Australia except at the wedding itself. The applicant responded that they didn’t know about this and had nothing to say.
Following the hearing, I wrote to the applicant and his wife pursuant to the provisions of s.424A, inviting their comment or response to information I considered would be the reason, or part of the reason, why the Tribunal would affirm the decision under review. In response, the applicant and his wife provided a number of documents and submissions, including statutory declarations of each of them. While the applicant’s statutory declaration was detailed, the statutory declaration of his wife merely stated that she had reviewed her husband’s statutory declaration and she repeated and reiterated its contents.
In his statutory declaration dated 7 November 2018 the applicant maintained that his wife’s parents were not invited to their wedding but learned about it against their wishes from the his wife’s sister [Ms C], who also arranged for her parents to travel to Australia for their wedding. He stated that they did not know his wife’s parents and younger sister had travelled to Australia for their wedding until he and his wife arrived at the airport to collect the applicant’s parents.
He stated that his parents met his wife’s parents for the first time in Kuala Lumpur and they had flown to Australia together. They then all travelled to [City 1] where the applicant and his wife stayed in a three bedroom apartment, while his wife’s family stayed in another apartment in the same building arranged by [Ms C]. The applicant states that when he stated at the Tribunal hearing that no one from his wife’s family was there, he meant that they were not staying in the same apartment and for the most part they barely saw them during their time in Australia.
I have also considered the contents of the statutory declaration made by the applicant’s parents, [Mr E] and [Ms F], dated 12 November 2018, in which they state they met the applicant’s parents for the first time [in] September 2015 at Kuala Lumpur International Airport after they were contacted by [Ms C], who arranged for them to go to Australia on the same flight as the applicant’s parents as a surprise. They state [Ms C] sent them a photo of her parents so they would recognise them at their airport and they also sent [Ms C] a copy of their itinerary in Australia in case her parents wanted to join them. They state they travelled to Australia with the applicant’s wife’s parents and younger sister and put down the applicant’s wife’s father as their emergency contact on the passenger card because he could speak better English.
I do not accept these explanations to be true, considering they provide yet another version of events that is inconsistent with the applicant’s prior statements and which has been offered only after adverse information was put to the applicant. In particular it is inconsistent with the evidence of the applicant and his wife at the second hearing before me, at which they both stated the applicant’s wife’s parents did not travel to [City 1] with them, that they did not see the applicant’s wife’s parents during their time in Australia except at the wedding and that the applicant’s parents had not met the applicant’s wife’s parents before the day of the wedding. It is also inconsistent with their evidence to the first Tribunal, at which they both stated that the applicant’s wife’s parents were not aware of and did not attend their wedding in September 2015. I consider the evidence of the applicant, his wife and his parents in these statutory declarations has been fabricated to try and explain the adverse information put to them in the s.424A letter.
I am satisfied that the applicant’s parents and his wife’s parents were known to each other before the wedding [in] September 2015 and that the applicant and his wife, his parents and his wife’s parents all stayed together in the same apartment building in [State 3] for several days before the wedding. I consider this information indicates that the two families enjoyed a friendly relationship and that the applicant’s wife’s parents were supportive of the marriage, given their participation in a joint family holiday with the applicant, his wife and his parents immediately before the wedding which was attended by all of them.
My findings above cause me to hold serious concerns about the credibility of the applicant’s claims that his father-in-law tried to blackmail them at their wedding a few days later. These concerns are exacerbated by my findings that the applicant and his wife have knowingly given incorrect information at both the first and second Tribunal hearings, as well as my other concerns about the events the applicant claims took place at the wedding.
The applicant and his wife’s evidence about the events on the day of the wedding can be summarised as follows:
·when the applicant’s wife’s sister and parents arrived, her father made polite conversation with the applicant’s parents for a few minutes before asking to speak to the applicant and his wife alone in another room. As soon as they were alone he demanded they pay him $[amount], threatening that if they did not pay he would disrupt their wedding. When they told him it was impossible as they did not have that amount of money, he told them that he actually wanted $[amount] and so $[amount] was good enough for them. He told them if they didn’t get him the money, he would destroy their wedding in front of the applicant’s parents;
·the applicant and his wife told his wife’s father they only had $[amount] on them and said they would give him that and then give him the rest later. Her father accepted that but also demanded he be the official witness to their marriage, saying he would not lose his dignity in front of the applicant’s parents. Then he left the room and their very simple wedding occurred shortly afterwards. After the wedding was finished, they gave her father $[amount] cash that they had brought to the wedding. The applicant’s wife’s parents then left and they did not see them again but her sister has since contacted his wife saying their father is very angry that he has not received the rest of the money.
When I advised the applicant and his wife that I was having difficulty accepting their evidence they were carrying $[amount] cash at their wedding, they said they had brought it because they planned to take the applicant’s parents out after the wedding and they were not sure how much money they would need. They also said it was not safe to leave the cash at home. When I asked why they did not leave it in the bank, they confirmed they had an Australian bank account but gave evidence they preferred to keep their money in cash. When asked if their bank records showed a cash withdrawal of $[amount], they gave evidence the money had been paid to them in cash and never placed in a bank.
I discussed with the applicant and his wife my concern about their evidence that they allowed the applicant’s wife’s father to blackmail them rather than seek the protection of the Australian authorities to prevent that occurring. The applicant’s wife stated she had always been very submissive to her father and she didn’t want to cause any problems. The applicant stated that they didn’t want him to destroy their wedding and they just wanted the problem to go away.
I advised them that I was also having difficulty accepting the applicant’s wife would have told her sister about the wedding if she genuinely believed her father might harm her as a result. The applicant’s wife said she really believed her sister would keep it secret and she had decided to block her sister when she called two weeks after the wedding and asked for the rest of the money. The applicant said that his wife’s sisters had sold her out, one after the other.
I have carefully considered the evidence of the applicant and his wife as to the events surrounding their wedding; however I do not accept their evidence to be true. While I have accepted the applicant’s wife’s father initially objected to their relationship, I do not accept he maintained his objection to that relationship at the time of their wedding [in] September 2015. Rather I have found that the two families enjoyed a friendly relationship and were supportive of the marriage.
I have considered the possibility that the applicant’s statements about his relationship with his wife and her parents were true at the time he lodged her protection visa application in May 2015 but that circumstances changed prior to their wedding in September 2015. I do not accept this to be the case, noting that the protection visa application was made only four months before their wedding and neither the applicant nor his wife have suggested there was a rapprochement with her father prior to the wedding.
Rather I find that the applicant gave incorrect information in his protection visa application when he stated:
·that his life was in danger in Malaysia from his father-in-law who had beaten and tortured him;
·his father-in-law would never let them live together and would try to kill them if they return to Malaysia;
·if returned to Malaysia, the applicant and his wife would be tortured physically and mentally until death and the Malaysian authorities would not take any action to protect them because this was not a crime.
For these reasons, I find the applicant gave incorrect information to the Department in his protection visa application and in doing so, he failed to comply with s.101 in the way described in the s.107 notice.
I am also satisfied the applicant gave incorrect information to the first Tribunal at the hearing on 15 April 2016 when he stated that no one in his wife’s family was aware of their marriage or had attended the wedding. Section 99 provides that any information given or provided by a non-citizen in relation to a visa application, including to the Tribunal on review and whether orally or in writing, is taken to be an answer to a question in a non-citizen’s application form. It follows that by giving incorrect information to the Tribunal on review, the applicant failed to comply with s.101 in the way described in the s.107 notice.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations).
I have considered the applicant’s response to the s.107 notice, documents provided to the Department and the Tribunal and the applicant’s evidence at hearing. I have also had regard to the prescribed circumstances set out in r.2.41 of the Regulations and to the other matters required to be considered as a matter of government policy as set out below.
The correct information: For the reasons set out in detail above, I consider the correct information is that the applicant’s wife’s family members attended their wedding in September 2015, that they enjoy a friendly relationship with the applicant and his family and that both families are supportive of the marriage.
The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: As referred to in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, the decision to grant the applicant a protection visa was based on the determination that he was owed complementary protection on the basis that he feared harm from his father-in-law who did not approve of his relationship with his wife. I consider his claim to fear harm from his father-in-law was central to the decision to grant him a protection visa and that decision was based wholly, or at least in large part, on the incorrect information.

The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant and his wife in his visa application and at the first Tribunal hearing. They were not represented while making the visa applications or during the first Tribunal review. They obtained representation after the second Tribunal hearing and were represented in their response to the Tribunal’s s.424A letter.
The present circumstances of the visa holder: The applicant lives in Australia with his wife and their child, [Child G], born [date]. [Child G]’s circumstances are discussed further below.
After their visas were cancelled, the applicant and his wife were unable to work between 1 December 2017 and 19 September 2018, when they were granted work rights. The applicant’s wife has not returned to work since the birth of their child. The applicant is currently working as a [Occupation 3] and earns good money in Australia. He claims that in Malaysia, such an occupation is considered low skilled with an earning capacity of approximately $[amount] per month, he and has produced copies of job advertisements to this effect. The applicant and his wife claim that if returned to Malaysia, they will have no accommodation and no financial support and will experience significant hardships. I accept the applicant and his wife have the capacity to earn higher salaries in Australia than in Malaysia and that returning to Malaysia will cause them some degree of financial hardship. However as I have not accepted the applicant’s wife’s family continues to object to their relationship and marriage, I do not accept they will be without family support. I note the applicant and her husband have previously lived and worked in Malaysia and I do not accept they will be unable to find accommodation, either with family or independently.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant responded to the s.107 notice and engaged with the cancellation process. However, for the reasons set out above, I have found that the applicant and his wife gave further incorrect information to the second Tribunal about their contact with her parents during the period they travelled to Australia to attend the wedding.
Any other instances of non-compliance by the visa holder known to the Minister: The delegate’s decision indicates there are no other instances of non-compliance by the applicant known to the Minister.
The time that has elapsed since the non-compliance: The relevant non-compliance took place in May 2015 and April 2016, when the applicant and his wife lodged their applications for a protection visa and appeared before the first Tribunal.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision states that there is no indication that there have been any breaches of the law since the non-compliance.
Any contribution made by the visa holder to the community: On the basis of documents submitted to the Tribunal, I accept the applicant’s wife volunteered at a [health centre] between May and July 2018, assisting with [specified services]. I accept she also made regular monthly donations to [named charity] between August 2016 and December 2017, prior to the cancellation of her visa. I accept the applicant and his wife also participated in a charity fun run in March 2016.
On the basis of the personal and professional references provided by [Ms H], director of [Company 1], I accept the applicant is a skilled [Occupation 3] who is highly regarded by his employer and colleagues.
Other factors to be considered
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s PAM3 ‘General visa cancellation powers’, which sets out that it is Departmental policy that delegates also consider the following four matters, even if not specifically raised by the visa holder in response to the s.107 notice.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
PAM3 sets out that if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, decision makers are obliged to treat as a primary consideration the best interests of the children.
The applicant lives in Australia with his wife and their child, [Child G], born [date]. [Child G] was [diagnosed] with [a medical condition], which requires further [monitoring]. He has also undertaken a [specific health] assessment which was consistent with normal [condition] and his [condition] will be reviewed at 12 months of age.
It is claimed that he will be unable to experience the same level of medical care in Malaysia, which may result in his condition worsening, and that his immunity is acclimatised to Australia and there is a risk of sickness if he is returned to Malaysia. They also claim they will be unable to take items purchased for their son [Child G] back to Malaysia due to the high costs of international shipping.
I accept the applicant would prefer to raise [Child G] in Australia rather than Malaysia. I note that if the applicant’s visa is cancelled, [Child G] will return to Malaysia with his parents, both of whom have family in Malaysia. I have not accepted the applicant’s wife’s parents will seek to harm the applicant or his wife for any reason relating to their marriage; rather I have found they are supportive of the marriage. Given my findings above, I do not accept the applicant’s wife’s parents would seek to harm [Child G] for any reason relating to the applicant’s marriage to his wife.
I accept the applicant and her husband will incur some financial costs for [Child G]’s baby equipment in their relocation to Malaysia. There is no country information or other evidence before me that would support the claim [Child G] will not receive appropriate medical care if returned to Malaysia. However I give the applicant the benefit of the doubt and accept it is in [Child G]’s best interests that his parents’ visas not be cancelled.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations
I have considered whether the visa cancellation would lead to the applicant’s return to a country where he would face persecution, death, torture, cruel, inhuman or degrading treatment or punishment.
It is not in dispute that the applicant is a Malaysian national and he has produced to the Department copies of his Malaysian passport. The Tribunal finds that the applicant is a citizen of Malaysia and that Malaysia is the ‘receiving country’.
The applicant maintains that his wife’s father will seek to harm him if he returns to Malaysia for reasons of their marriage. His representative submits that he faces a real risk of significant harm in Malaysia at the hands of his wife’s father and this further complicated by the fact they have a dependent child who may also directly or indirectly experience harm.
For the reasons set out above, I have not accepted the applicant’s claims to fear harm from his wife’s father or other family members for reasons of his relationship with his wife. Rather I have found that the applicant’s wife’s father and other family members attended the applicant’s wedding in Australia, enjoy a friendly relationship with the applicant’s family and are supportive of the marriage. I have not accepted the applicant’s wife’s father continues to oppose their relationship, nor that he or any other family member would seek to harm the applicant or his wife or son if they return to Malaysia now or in the foreseeable future.
It follows I do not accept there to be a real chance the applicant will face harm from his father-in-law or any other family members if he returns to Malaysia for any reason relating to his relationship or marriage to his wife. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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.[1] For the same reasons, I do not accept there to be substantial grounds for believing that there is a real risk the applicant will face significant harm from his father-in-law or his wife’s family members if returned to Malaysia. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).
[1] 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 Jagot JJ at [297], Flick J at [342].
Therefore I do not accept the visa cancellation would lead to the applicant’s removal from Australia in breach of Australia’s non-refoulement obligations under relevant international agreements.
Whether there are mandatory legal consequences to a cancellation decision
I have considered whether there are any mandatory consequences of the visa cancellation. I accept that as a consequence of the cancellation of his visa, the applicant will be unable to make a further application for a protection visa and he will become an unlawful non-citizen and liable to be detained and removed from Australia. I consider, however, that as a Malaysian citizen, he will be able to return to Malaysia and I do not accept that indefinite detention is a likely consequence of the cancellation decision.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 (consequential cancellations)
The applicant’s wife was found to be owed protection and granted a protection visa on the basis of her own claims. While that visa has also been cancelled in similar circumstances to the applicant’s, it is not a consequential cancellation for the purposes of s.140 of the Act. The applicant’s son was born after the applicant’s visa was cancelled and he has never been granted a protection visa. While there will be no consequential cancellations under s.140 of the Act, I have accepted that had the applicant’s visa not been cancelled, the applicant’s son would have been entitled to be granted a protection visa as a member of his family unit.
Other relevant matters
The applicant claims that the cancellation of her visa will cause her significant hardship as he and his wife have lived in Australia for six years and formed a life here and they do not have sufficient savings to rent a home in Malaysia. I have accepted the applicant and his wife may face some degree of financial hardship if their visas are cancelled and they are returned to Malaysia. However I note both the applicant and his wife have worked in Australia and Malaysia and I am satisfied they will be able to find employment and accommodation on return to Malaysia.
CONSIDERATION
The applicant gave incorrect information in his protection visa application and at the first Tribunal hearing in the way set out in the s.107 notice. The decision to grant the applicant a protection visa was based on the incorrect information that he provided.
The applicant has been resident in Australia for just over six years. He and his wife made monthly donations to [a named charity] for a period in 2016 to 2017 and participated in a charity fun run in March 2016. I accept he does not wish to return to Malaysia and doing so will cause him some degree of financial and emotional hardship. I have accepted that it is in the best interests of their son [Child G] that his parents’ visas not be cancelled, and I treat [Child G]’s best interests as a primary consideration. It does not follow that the Tribunal must find that the visas should not be cancelled; rather the Tribunal may exercise its discretion to cancel the visas if it finds that other considerations outweigh the best interests of the child.[2]
[2] Wan v MIMA [2001] FCA 568.
In the particular circumstances of this case I, consider that other considerations outweigh the applicant’s desire to remain in Australia and [Child G]’s best interests. I have found that the applicant’s incorrect information about his relationship with his father-in-law was central to the decision to grant him a protection visa and that decision was based wholly, or at least in large part, on the incorrect information he provided. I consider that had the correct information been known, he would not have been found to engage Australia’s protection obligations and I consider it is inappropriate that he should benefit as a result of this incorrect information. I have not accepted the visa cancellation would lead to the applicant’s removal from Australia in breach of Australia’s non-refoulement obligations under relevant international agreements, nor have I accepted that indefinite detention is a likely consequence of the cancellation decision. Having given careful consideration to all the relevant circumstances, I have concluded that the applicant’s visa should be cancelled.
CONCLUSIONS
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Alison Murphy
Member

ATTACHMENT A – RELEVANT LAW
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
If the Tribunal finds that there was non-compliance in the way described in the section 107 notice the Tribunal must proceed to consider whether to exercise the discretion to cancel the visa under subsection 109(1). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the section 107 notice and it must have regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994. These are as follows:
·     the correct information;
·     the content of the genuine document (if any);
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
·     the circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches;
·     any contribution made by the holder to the community.
Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (‘PAM3: Act – Visa cancellation - General visa cancellation powers - (s109, s116, s128, s134B and s140)’). This policy requires that delegates should also consider matters such as whether there are persons in Australia whose visas would, or may, be automatically cancelled under section 140 of the Migration Act, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation and whether there are mandatory legal consequences to a cancellation decision.
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 155

14 January 2019

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