1730818 (Refugee)

1730818 (Refugee) [2024] AATA 937 (9 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1730818
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Jessica Henderson
DATE:9 January 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 January 2024 at 4:24pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – economic situation – political opinion – supporter of the Coalition for Clean and Fair Elections – race – Chinese ethnicity – racial discrimination – applicant does not have subjective fear of returning to Malaysia – delay in applying for protection in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Malaysia. She applied for the visa on 26 May 2017.
The applicant appeared before the Tribunal on 2 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant arrived in Australia on [date] March 2015 on a UD-601 visa. On 28 May 2015 the applicant applied for a student visa, which was granted on 25 June 2015.
The applicant left Australia on [date] January 2017.
The applicant returned to Australia on [date] March 2017 on a UD-601 visa.
On 29 May 2017 the applicant applied for a protection visa. The reasons given by the applicant in her application were summarised by the delegate in the following terms:
• Applicant claims she left Malaysia because she was abused by her stepfather
• The applicant claims that if she returns to Malaysia she will be Psychological, Mental and Emotional.
• The applicant claims that the harm she experienced was Psychological, Mental and Emotional.
• The applicant claims that she did not seek help because her friend [Mr A] suggested for her stay in Australia.
The applicant attended an interview with the Department on 8 November 2017. A copy of the interview was not provided to the Tribunal. The delegate reported in the reasons for decision that during the interview the applicant claimed to have left Malaysia because of racial discrimination because she is ethnic Chinese. She also reported the applicant’s statement that the claims written in the 866C form were incorrect. The applicant subsequently amended her 866C Form by and to reflect this.
The delegate did not consider the applicant’s original claims in the reasons for decision. The delegate’s decision was based on the applicant’s economic and racial claims. The delegate found that the economic climate of Malaysia affected the population generally, and that the applicant would not face serious or significant harm because of her race.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for a protection visa either because she has a well-founded fear of persecution for a refugee nexus reason or pursuant to the complementary protection provisions. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence during the hearing
The Tribunal asked the applicant about the circumstances in which her protection visa application had been completed. She said that the applicant form had been completed by an agent, whose name she did not recall. She said that she paid fore than $3,000 for the agent’s services, but that she had not met them in person; she had given instructions by telephone. She had been in Australia for about two years when she made contact with the agent, whose contact details she had obtained from a friend.
The applicant provided details about her background in Malaysia during the hearing. Her parents are married and she grew up with both of them. Her dad was a [Occupation 1] and her mother a [Occupation 2]. She and her sister both went to primary and high school. The classes were taught in the Malaysian language, in which she is fluent. Outside school hours she worked at a shopping centre. Her sister also completed school and is now an [Occupation 3] for a business and is married to a Chinese-Malaysian technician. The applicant said that her sister had better academic results because the applicant had to work after school. Her family lived in one room and couldn’t afford to pay her school fees without her work. Her mother paid for her sister but couldn’t pay for both of them.
The applicant said she met her husband in 2009, and they married on Valentines Day in 2015. The had a child, a son, on [date] this year. They travelled to Australia together to improve their English. After the applicant finished her [qualification] they returned to Malaysia, but found it hard to get work, notwithstanding the improvement in English.
The applicant recounted details of protests that she had been involved in during 2013. The applicant showed a significant degree of enthusiasm and passion when discussing these events.
The applicant particularly recalled a protest in 2013, when a large group of people gathered together and wore black shirts. The government arranged policemen to shoot bullets and use a fire engine to hose people down. The applicant said that more than 100 people were arrested and more than a 1000 were injured. The applicant says that she was injured; a lot of people were pushing and she was caught in the crush, injuring her arm.
The applicant says that she has been watched since then, because she played a leadership role in the movement. She says that she had to stay inside in Malaysia until the situation calmed down. In the following two years she was unable to apply for a home loan or government housing. She says that it was difficult for her to find a job and impossible for her to buy non-government properties.
The Tribunal asked the applicant whether she had any difficulties when she returned to Malaysia in 2017. She said that she was detained by customs. Her husband was not. She said that she also had difficulty renewing her passport. At the time that she had attempted to renew it was still valid for 2.5 years, and the reason given for the refusal to renew it was that it had not yet expired.
The Tribunal asked the applicant whether anything else had happened during her trip to Malaysia in 2017 and the applicant said that there had been some difficulties about her application for housing. She was a bit worried and stayed inside.
The Tribunal noted that the applicant had only been in Malaysia for less than 2 months and asked her when she had decided to return to Australia. She said that she had decided to return to Australia in March when she had been unable to get a job. She said that she had applied for service/sales roles; she thought more than 10. She couldn’t apply for government jobs so they were just private. She said that ‘they employ relatives’.
The applicant said that her husband had applied for [Occupation 4] jobs but there weren’t many available. She said that their time in Australia had made it hard for them to get a job.
The Tribunal asked the applicant whether they had looked at any other visa options and she said that they had considered a working visa but her friend suggested a protection visa. Her friend didn’t give much in the way of explanation, just said it was a visa and she could help with the application. Her friend also helped her husband. He hasn’t had his interview with the Department yet.
The Tribunal asked the applicant about her original claims and she said that her step-father was insulting. Nothing happened between them, however. She confirmed that she had not completed or signed the original application form, and that she had corrected the application by hand in the interview to reflect her actual claims. She did not press her claims as made in her original protection visa application.
The applicant said that she thought she was in danger of going to jail because of what happened in 2013; more than 100 people had gone to jail and she knew the government were still looking. She agreed, however, that since 2013 she had had a passport issued, had left Malaysia, arrived back there, and then left again without anyone trying to arrest her. She said that they might not have her name, but that they were still looking for people through facial recognition.
The applicant said that she had more evidence that she wanted to give to the Tribunal. The Tribunal gave the applicant had until 17 November 2023 to provide any further evidence.
Post hearing submissions
On 8 November 2023 the applicant wrote to the Tribunal and made further submissions in the following terms:
Thanks for the hearing and giving me this chance to provide further information. I am a strong supporter of the Coalition for Clean and Fair Elections (Malay: Gabungan Pilihanraya Bersih dan Adil, BERSIH). BERSIH began holding rallies in Kuala Lumpur in 2007. In 2011, during the Bersih 2.0 rally, Kuala Lumpur experienced a city closure a ban on yellow clothes, and the police also used tear gas, but this could not stop the enthusiasm of the participants. Some extremists intimidate Malaysian-Chinese, and the police also selectively enforce the law against Malaysian-Chinese. I was young at the time and was following the news. I admired the bravery of the participants and was determined to join them.
In May 2013, I attended the Ubah lecture and invited friends to participate (please see attached photos). Ubah is a slogan shouted by supporters of the Malaysian Democratic Action Party, which means change. We call on qualified voters to seize the votes in their hands, elect public representatives who can serve the people, resist corrupt governments, and support honest political parties in power. The people of Malaysia need fairness and unity.
My beliefs are inseparable from my experiences. Malaysian-Chinese suffer racial discrimination every day. In middle school, there were 30 people in my class, five of whom were Chinese. Every time we had lunch, the Malays got the priority to buy food and five of us last. During Ramadan, Malaysian-Chinese students, even if they did not believe in Islam, were not allowed to drink water in front of Malay students, and the canteen did not provide any food.
As a Malaysian-Chinese student, no matter how good my grades were, I could not get government-sponsored study-abroad opportunities, and it was also difficult for me to apply for government housing. Malays could quickly obtain these, and the government would provide them with 30% subsidized loans and parenting subsidies for their children. Institutional discrimination has exacerbated social divisions. This was not a fair Malaysia, so I worked hard to change it. However, the brutal persecution forced me to leave my hometown.
I am grateful to Australia. I am lucky that my [child] was born in Australia and no longer faces discrimination. Australians are kind and friendly. As someone who has experienced discrimination and persecution, I especially cherish life here. I don't want [my child] to repeat my experience. Please allow him to get an Australian education and grow up happily. Please let us stay here, and we will contribute to Australia, help the victims, and make this world a better place.
The letter attached photographs purporting to show the applicant attending a very significant sized rally filled with people in black shirts. The applicant is also wearing a black shirt.
Country information
Chinese Malaysians
The DFAT Country Information Report for Malaysia[1] contains the following information about Chinese Malaysians:
3.8 The Malaysian Department of Statistics estimated there were 6.7 million Chinese Malaysians in Malaysia in 2020, making up around 20 per cent of the population. Chinese Malaysians are one of the largest overseas Chinese communities in the world, and are Malaysia’s second largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.
3.9 There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians (though, by implication, as the second largest ethnic group, they are the principal group affected by the constitutional preference for Bumiputera). Chinese Malaysians freely participate in political life, including as ministers (one in the current cabinet, down from four in the PH government) and in opposition parties, but ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. The Democratic Action Party (DAP) – a predominantly ethnic Chinese party – currently holds 42 of the 222 federal parliamentary lower house seats. Chinese Malaysian community members advised that the 1MDB corruption scandal (see Corruption) had galvanised anti-government sentiment among Chinese Malaysians (as well as others) and had led to greater political engagement.
3.10 There are relatively few Chinese Malaysians in the Malaysian civil service. The predominant use of the Malay language can be a barrier to Chinese Malaysian employment in the civil service, but does not preclude it (see Civil Service). Chinese Malaysians often do not apply for government positions, as they believe the positions are more likely to be awarded to Bumiputera and provide limited promotional opportunity. Conversely, Chinese Malaysians are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian-owned. However, Chinese Malaysians report discrimination against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws (see Federal and State Law Enforcement Entities). Chinese Malaysians report obtaining and maintaining a business license can be difficult, due to Bumiputera ownership quotas and pressures to pay significant bribes. Chinese Malaysians also claim Inland Revenue Board (IRB) raids of Chinese Malaysian businesses leading to fines are common. Sources claim that IRB raids for ‘verification purposes’ can close down a business for months at a time, with significant economic consequences including loss of income and frozen bank accounts.
3.11 Chinese Malaysians are eligible to access national primary or high school education, but generally choose to attend one of the nearly 1,300 national-type Chinese primary schools that teach in Mandarin (along with Bahasa Malaysia) (see Education). This is reportedly usually due to concerns about the quality of education elsewhere and perceptions that the curriculum has a strong focus on Islam. Chinese Malaysians report there are insufficient national-type Chinese schools in urban areas to meet enrolment demands, and cite anecdotes of families driving their children to Singapore to access non-Islamic, Chinese schools. Chinese Malaysians report that members of the community living in rural areas have better access to national-type Chinese schools, although many families are unable to live in rural areas due to lack of economic opportunity. The 2019 Federal Budget specified funding for independent Chinese schools for the first time but this was not continued in the following Budgets. The Chinese school qualification Unified Examination Certificate (UEC) is still not recognised for the purposes of Malaysian public university entry.
3.12 DFAT assesses Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.
[1] 29 June 2021
The Tribunal put this country information to the applicant during the hearing and put to her that it supported a finding that she was not at risk of serious or significant harm because of her race. The applicant said that treatment was different for Chinese people. Companies must have Malaysian shareholders and it was hard to be approved for registration of a company. All companies need Malaysian partners. That is not inconsistent with the country information. The relatively mild discrimination that the applicant says she was subjected to at school is also not inconsistent with the country information.
Protests and political opposition

The DFAT Report makes the following observations about protests in Malaysia:
3.87 Although the Constitution states all citizens have ‘the right to assemble peacefully and without arms’, authorities have traditionally closely administered political assemblies and rallies under the Peaceful Assembly Act (2012; PAA) and the Criminal Code. Permits can be difficult to obtain and can be restrictive in their application. Authorities may arrest individuals for organising or engaging in rallies, such as the arrest in early 2020 of protest organiser Fadiah Nadwa Fikri and others in protests against the end of the PH government. Authorities have occasionally used force to control crowds.
The Tribunal notes the applicant’s submission that she is an ongoing supporter of the Coalition for Clean and Fair Elections (BERSIH). The DFAT Report includes the following statements about political opposition in Malaysia:
3.92 DFAT assesses that space for political opposition and dissent has decreased since early 2020. The option of using what have been referred to by some opposition members as ‘oppressive laws’ remains and there are increasing signs they are being used. DFAT assesses the political instability may create a less open environment for dissent. DFAT assesses political party members can currently undertake political activities on a day-to-day basis without significant interference but face a low risk of official discrimination, including from politically motivated police investigations. Individuals do not face societal violence on the grounds of their political affiliations.
…
3.95 Civil society and human rights organisations have regularly reported instances of police intimidation and legal harassment under successive Malaysian governments, including under the PN government. These include the questioning of Cynthia Gabriel, the founding director of the Center to Combat Corruption and Cronyism (C4 Center), in June 2020, about a letter calling for an investigation into allegations the government was trading favours for political support; and the ongoing investigation of Bersih 2.0 chair Thomas Fann under the Peaceful Assembly Act for a social media post in February 2020 calling for people to protest the change in government. However, even with its chair facing investigation, Bersih is otherwise active and able to operate relatively unhindered, most recently suing the government over the declared State of Emergency, together with a number of other human rights NGOs.
The comment that Bersih is active and able to operate relatively unhindered is not contradicted by any of the evidence that the applicant has submitted.
Findings
The Tribunal accepts that the applicant was involved in protests against the government of Malaysia in 2013, including the black shirt rally. However, the Tribunal does not accept that the applicant is at any ongoing risk from the government as a result of attending those protests. The government has had many opportunities to recognise her face or her name when she applied for her passport and during her three transits through Malaysian airports. The reported reluctance of the Malaysian government to renew a passport that was barely halfway through its period of validity does not comprise persecution, nor is it evidence of any sinister intent towards the applicant by the government. There is no evidence to support the applicant’s claim that she risks imprisonment as a result of her attendance at the 2013 protests and the Tribunal does not accept that this is a risk posed to the applicant.
The Tribunal accepts that the applicant was not employed and did not obtain housing in Malaysia in 2017. However, the Tribunal does not accept that the applicant made a meaningful attempt to find work and housing on her return to Malaysia in 2017. The applicant spent barely a month there before making plans to return to Australia. During that month she may have applied for some 10 positions in service/sales roles. That is not a sufficient number over a sufficient period of time to convince the Tribunal that the applicant is unable to obtain work in Malaysia. Given that she was recently returned to Malaysia and unemployed it is not surprising or sinister that she was unable to obtain housing in that timeframe. Neither her failure to obtain employment nor her inability to get housing in 2017 is an accurate reflection of her employability and residency status in the future.
The Tribunal does not accept the applicant’s claim that she avoided harm in Malaysia in 2017 by staying inside. She was most exposed to harm when transiting in and out of Malaysia, and on her evidence she went out of her way to draw the attention of the government by seeking to renew her passport, even though it was not due for renewal for a further 2.5 years. The applicant did not suggest that the reason she had had difficulty in obtaining employment or housing was because she was reluctant to leave her house, and only mentioned being house-bound in 2017 when the Tribunal asked her whether she had had any difficulties while she was travelling in Malaysia. The Tribunal does not accept her evidence that she remained inside whilst in Malaysia in 2017.
The Tribunal accepts that the applicant supports Bersih, but not that her support gives rise to any risk. She has not advanced any evidence to suggest that mere supporters of Bersih are at risk, and the Country Information is to the contrary.
The Tribunal accepts that the applicant is Chinese Malaysian, and that there is some discrimination against Chinese Malaysians in terms of obtaining government employment or setting up corporations in Malaysia. The Tribunal accepts that there may have been discrimination during the applicant’s education. However, the applicant’s evidence is that both her parents, her sister and her brother-in-law were able to obtain employment in Malaysia, notwithstanding that they are all also of Chinese Malaysian descent and that her sister attended the same schools that she did. The applicant’s evidence is that she and her husband have both previously been employed in Malaysia. The country information is that the discrimination experienced by Chinese Malaysian people is mild and does not rise to the level of serious or significant harm.
Refugee claim
The Tribunal does not accept that the applicant is afraid of returning to Malaysia. She left Australia for Malaysia in 2017 without having sought protection whilst in Australia. She did not seek protection at the first opportunity on her return to Australia; it was several months after her arrival that her protection claims were made. In spite of the very significant amount of money that she spent on an agent to submit a visa application for her, her current claims for protection were not detailed in her original visa application. The applicant has not offered any reasonable explanation for why incorrect claims were made in her initial application.
A decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[2]
[2] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34
The Tribunal finds that the applicant does not have subjective fear of returning to Malaysia.
In any event, for the reasons set out above, the Tribunal does not accept that the applicant is at risk of serious harm because of her past political involvement, her present political views, or her race.
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).
Complementary protection claim
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). That is, the Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of removal to Malaysia there is a real risk that the applicant will suffer significant harm.
There is no compelling evidence before the Tribunal to suggest that the applicant will suffer significant harm as defined in s 36(2A) of the Act. The evidence is to the contrary; she did not suffer significant harm when she returned to Malaysia in 2017 in spite of drawing the government’s attention with a passport application that does not appear to have been necessary. The Tribunal does not accept the applicant’s late raised claim to be at risk of imprisonment, not only because it was not pressed at an early opportunity but because it is inconsistent with the applicant’s movement records and evidence of what happened during her 2017 travel to Malaysia.
The Tribunal accepts that there is a risk that the applicant will be unable to secure employment or housing if she returns to Malaysia, but the Tribunal agrees with the delegate’s assessment that the risk is one faced by the population generally because it flows from Malaysia’s economy rather than the applicant’s personal circumstances or characteristics.
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.
Jessica Henderson
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.
…

[2024] AATA 937

9 January 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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