1731205 (Refugee)

1731205 (Refugee) [2021] AATA 4316 (31 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731205
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Wendy Banfield
DATE:31 August 2021
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 August 2021 at 6:46pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark – change of claims at hearing – personal loan now repaid – COVID-19 and general economic conditions – credibility – written application assisted by unrelated person – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 28 September 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 26 July 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 (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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
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.
Applicant's Identity and Country of Reference
The applicant stated in his application for a protection visa that he was born on [date] in Kuala Lumpur, in the state of Selangor, Malaysia. The applicant provided a copy of his Malaysian passport to the department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that he is a citizen of Malaysia and as such his protection claim will be assessed against Malaysia as the country of reference and 'receiving country' respectively.
Migration History
The applicant arrived in Australia [in] July 2017 holding a [specified] visa. On 28 September 2017 the applicant applied for a XA-866 Protection visa which is the subject of this review. He has not departed since his arrival.
Claims for protection and supporting documentation
The applicant first submitted claims for protection when he made an application to the Department on 28 September 2017. The application set out the following claims:
The reason I claim the protection is because of a loan shark with amount 15,000.00 Ringgit Malaysia and it need to pay with installment every month. As for now I have financial problem and the loan shark debt increase as I cannot pay the monthly installment.
The loan shark will come to my house and forced me to pay back their debt and I am afraid they will harm me.
Evidence at the hearing
The Tribunal asked the applicant whether anyone assisted him to complete his application for a visa. The applicant said he had received assistance from another person. He advised it was “a friend of a friend”, not a migration agent. The applicant stated his belief that everything in his application is true and correct. The applicant confirmed his country of citizenship is Malaysia, and he is from the state of Selangor. He advised he does not have citizenship of any other country. Regarding any travel outside his home country the applicant indicated he went to [Country 1], in approximately 2014 or 2015 to visit the ancestral land of his mother.
The applicant stated he does not have family in Australia. In Malaysia he has his parents and [sisters] as well as a large extended family. The applicant gave his date of birth as [date]. He said he is not married and has no children.
The Tribunal asked the applicant about his education background in Malaysia. He said he completed up to his [number] year of secondary school but no further study after that. In Malaysia the applicant worked in [Work sectors 1-2] and had also worked in [Work sector 3] for short periods. The applicant confirmed he arrived in Australia [in] July 2017 holding [a specified visa]. His said he came to Australia because he had a lot of debts in Malaysia. The applicant was asked why he came as a visitor and he said he had not known how to apply for another visa, but a friend had told him about the [visa]. According to the applicant when he first arrived, he was “sight-seeing in Perth” but he now lives in Darwin. The applicant said he is working [in Work sector 4] and had previously worked in Queensland [doing a similar job].
The Tribunal explained to the applicant the criteria he needed to satisfy to be granted a protection visa in Australia. He was asked what he feared about returning to Malaysia. He said previously he feared going home because he had so much debt, but now he has been able to repay it. He was asked if he has any current fears about retuning to Malaysia and he said he is still fearful. Asked to explain why, the applicant declared the country is in lockdown due to the COVID-19 pandemic and he is scared to go home. He said he will have to support his family because people have lost jobs. According to the applicant, his sister was working in [Work sector 5] and his father was a [Work sector 1 worker] but is too old now. The applicant advised he sends money to his family from Australia to support them.
The Tribunal asked the applicant why he believed he would not be able to find a job in Malaysia. He said lots of people have lost jobs and he will not be able to get one. The Tribunal put to the applicant that he had come to Australia well before COVID-19 and that could not have been the reason for him coming. He agreed that was the case. The Tribunal asked if the applicant’s family have applied for any type of assistance since they lost their jobs and he said “no, they haven’t”. The Tribunal told the applicant that country information indicates the Malaysian government provides assistance to people on low incomes affected by the pandemic. He said his younger sister had applied and she received some assistance but not a lot. He said his parents are not able to claim any assistance because they are not from Malaysia, they are from [Country 1]. The applicant confirmed he was born in Malaysia and has a Malaysian passport.
The Tribunal advised the applicant it would be asking him about information he provided at the time of application and would explain the relevance of the information to him. He was advised that if he required additional time to comment or respond, he may request it and the Tribunal would consider his request.
The Tribunal put to the applicant particulars of information from his application for a visa form in which he claimed he had owed debts to a loan shark. By contrast, during the hearing, the applicant had said only that he had debts in Malaysia. The Tribunal indicated the information provided in the application form was not consistent with his evidence at the hearing. The applicant was asked why he had claimed to owe money to a loan shark. The applicant chose to respond to the information put to him. He explained that as he had told the Tribunal earlier in the hearing, someone assisted him to fill out the form. He said he just told the person helping him that he had debts, and they filled in the form. When asked to clarify, the applicant repeated his evidence that the person who completed the form had included the information that he owed debts to a loan shark. He advised he had not in fact had debts to a loan shark, just a personal loan that he has since repaid. The Tribunal asked the applicant what the loan was for and he said he had purchased a car in Malaysia for RM 15,000.
The Tribunal asked the applicant if he had any fears about returning to Malaysia for any other reason and he said he did not. The applicant was asked if he has ever been arrested by police and he said “no”. The applicant confirmed he was originally from Selangor in Malaysia which is where he used to work as well. He was asked why he would not be able to find work of a kind he had done in the past. He said he would only be able to work as a [Work sector 1 worker] and would not be able to save money as the salary is very low. He was asked if he had tried to find any other type of work and the applicant replied “no”.
The Tribunal put to the applicant country information about the economy in Selangor. He was advised that country information indicates Selangor is a strong, developing economic region with a lot of different types of industry. He was asked why he had not tried to find other types of work that would provide him with sufficient financial means. He said it was because he only has a high school education making it difficult to get work. The applicant said he had not considered further education as a means of obtaining a better job. He also did not consider relocating to another area of the country to find work because, he said, he was living with his family. He was asked in that case, why he decided to travel all the way to Australia, a country he had never been to and where he did not speak the language. He said he had no choice because his sister is married and can no longer support the family. The Tribunal asked the applicant how it is worthwhile for him to come to Australia for work purposes when Australia has a higher cost of living. He referred again to having debts prior to coming to Australia.
The Tribunal informed the applicant that because he has applied for a protection visa, he must demonstrate that he has a well-founded fear of harm if he returns to Malaysia. The applicant declined to comment any further about returning to Malaysia and declined to provide any further submissions when invited to do so.
Country Information - Malaysia
The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 86.5 per cent of Malaysia’s exports in 2020. Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the government’s largest single revenue source.
According to the World Bank, following the Asian financial crisis of 1997-98, Malaysia’s economy was on an upward path (until COVID-19), averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. This may be delayed somewhat by the effects of COVID-19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.
Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called ‘B40’ who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.
In 2020, Malaysia’s economy was hit with the dual shock of COVID-19 and a decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID-19. The economy is expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. The Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages. Measures included wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants of MYR3,000 (AUD 950) to qualifying SMEs and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.[1]
[1] DFAT Country Information Report – Malaysia 29 June 2021
Selangor
Selangor is the primary state in Malaysia. Its contribution of over 22 per cent to the country’s gross domestic product (GDP) has been consistent over the years, showcasing its credibility as the economic powerhouse not only within the country, but also in the region. In fact, Selangor’s economy continued to record growth in 2020 at a rate of 2.09 per cent – albeit slower due to the pandemic – amid the overall national GDP contraction of 5.6 per cent.
FDI has remained one of the major boosters to the state’s economic growth over the years. Selangor is home to many MNCs such as Ikea, Airbus, Toyota, Lee Kum Kee (M) Foods Sdn Bhd, ND Paper Malaysia (Selangor) Sdn Bhd, Jingxing Holdings (M) Sdn Bhd and Wistron Technology (Malaysia) Sdn Bhd.
In 2020, Selangor attracted a total of 18.4 billion-ringgit (US$4.42 billion) worth of foreign investments out of the total 64.2 billion ringgit (US$15.43 billion) received by Malaysia, making it the country’s top investment destination for three years in a row.
Selangor is home to two of Malaysia’s major airports, including Kuala Lumpur International Airport, one of the largest air hubs in Southeast Asia.
This healthy inflow of investment projects into the state affirms Selangor’s status as a preferred destination among investors, despite the various challenges posed by the pandemic, thanks to the already matured ecosystems within the state in which industries can set up their operations.
On top of Selangor’s notable rankings, as well as its economic and investment achievements, MNCs’ growing interest in setting up regional operations in the state is largely due to the continuous efforts of Invest Selangor. This one-stop agency provides information, advisory services, and start-up and expansion support to potential and existing investors in order to promote the state as a promising investment destination.
In addition, Selangor’s strategic location – with two major international airports in Kuala Lumpur and Subang; Port Klang, the world’s 12th busiest container port; and several advanced domestic rail, road and air links to economic centres around Malaysia – makes the state one of the most attractive business hubs for connecting investors to Asean and global markets.
Another advantage that Selangor offers is the availability of about 3.6 million multilingual and skilled talents in the state. This presents a major advantage for MNCs, especially those that are servicing the regional market from Selangor.[2]
[2] “Why the Malaysian State of Selangor Is Emerging as a Prime Asean Business Hub.” South China Morning Post, 26 July 2021, Malaysian Government's response to COVID−19 - including a lockdown known as the Movement Control Order (MCO) - came into effect on 18 March 2020 and successfully reduced the spread of the virus in the early stages. However, large clusters linked to factories, construction sites and prisons, as well as the Sabah state election in September 2020, contributed to a rise in COVID−19 case numbers. As at 26 June 2021, there were 722,659 confirmed cases: and 4,803 deaths. At their peak in January 2021, there were more than 5,000 cases per day before falling significantly and rising again in mid-2021.[3]
[3] DFAT Country Information Report – Malaysia 29 June 2021.
New case clusters in November 2020 were centred upon foreign workers, particularly within Top Glove factories, the world’s largest manufacturers of rubber gloves.
Malaysia continues to see record high numbers of COVID cases and deaths even though the South-East Asian country has been in nationwide lockdown since May.
Prime Minister Muhyiddin Yassin handed his resignation to Malaysia's king yesterday after losing his parliamentary majority, amid public discontent with the government's handling of COVID-19 and its economic fallout.
…
A cause for hope is that Malaysia has higher rates of vaccination than most neighbouring countries, including Australia.
Malaysia's vaccine rollout was heavily criticised in its early stages but has been accelerated with the establishment of mass vaccination centres.
More than half the population has now received at least one vaccine dose.
About one third of Malaysians are fully vaccinated.
Those who are fully vaccinated in some Malaysian states have already been granted exemptions from lockdown restrictions, including being able to eat at restaurants.
There is, however, concern about over-reliance on mass vaccination sites due to the threat of creating outbreaks.
In July, one centre near Kuala Lumpur was shut down after 204 staff and volunteers were infected with COVID.
"The only way to get vaccinated is to visit these mass vaccination centres," Dr Syed said.
Dozens of people sit spaced out in a large hall awaiting vaccines
"We need to utilise the private health sector and get GPs to help with the vaccine rollout to ease the burden on these large vaccine sites."[4]
[4] “Malaysia continues to report record COVID numbers amid a political crisis” ABC News, 17 August 2021.
CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
In assessing the applicant’s case the Tribunal found the claims for protection in Australia suffered due to different accounts being provided to the Department and the Tribunal. The applicant explained what he said was an incorrect claim in the original application which was, that he owed money to loan sharks. He declared the statements were made by the friend who assisted him to prepare the application. The applicant claimed he told the person helping him that he had debts in Malaysia and the friend must have added that the debts were owed to a loan shark. He advised he did not in fact have debts to a loan shark, just a personal loan that has since been repaid.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims. However, in this case, and for the reasons outlined below, the Tribunal finds that the written claims were not diligently or conscientiously submitted. Accordingly, the Tribunal has placed considerably more weight on the applicant’s oral claims at the scheduled hearing.
Accepted Personal Circumstances
The Tribunal accepts the following to be credible:
The applicant was born on [date] in Kuala Lumpur in the Malaysian state of Selangor and that he speaks, reads and writes in Malay.
The applicant has never been engaged or married while in Malaysia, and does not have any children, biological or otherwise.
The applicant completed secondary school in Malaysia and had been employed in unskilled work.
The applicant belongs to the Islamic faith.
Since being in Australia, the applicant has worked [in Work sector 4] and is continuing to do so while living in Darwin.
Refugee Criteria
The Tribunal considered whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion relating to all areas of the relevant country. The applicant did not make any claims in relation to race, nationality, membership of a particular social group or political opinions. The Tribunal nevertheless considered the applicant’s submissions that he experienced difficult financial circumstances due low paid employment. The applicant as a high school educated person, belonging to a low-income household may mean he is part a social group that experiences poverty in Malaysia.
When asked what he feared about returning to Malaysia, the applicant referred to employment concerns and the effects of COVID-19. He claimed he would be unable to find a job and support his family. Other than his sister being married and no longer able to contribute, the applicant did not say why it fell to him to support his family when he claims to have a large extended family in Malaysia. The applicant declared he had come to Australia because he had “debts” in Malaysia that he had trouble paying. When asked for details, the applicant said he had obtained a personal loan for 15,000 RM to purchase a car. However, he claimed he has now repaid the loan and sends some of his income in Australia to his family. The Tribunal considers it unlikely the applicant was experiencing poverty if he was able to obtain a loan and purchase a car, even if he had trouble with repaying it. During the hearing the applicant was asked why he had taken steps to travel to Australia rather than relocate to another area of the country to find work. The applicant claimed he did not relocate within Malaysia because he was living with his family at the time. As for his reasons in deciding to travel all the way to Australia where he did not speak the language and living expenses are high, the applicant did not provide a satisfactory explanation. The Tribunal finds the applicant has proven to be resourceful in securing employment and there appears to be no reason he could not find work in the developed Selangor economic region to help support his family.
To meet the refugee criteria, the applicant must have a well-founded fear of persecution and the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to a threat to the person's life or liberty; significant physical harassment of the person; significant physical ill treatment of the person; significant economic hardship that threatens the person's capacity to subsist (ability to survive); denial of access to basic services, where the denial threatens the person's capacity to subsist (ability to survive) or denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist (ability to survive).
The applicant did not claim to fear persecution and there is no evidence he would be denied access to basic services or denied the capacity to earn a livelihood. The Tribunal did consider whether the applicant would face significant economic hardship that would threaten his capacity to subsist. In this regard the Tribunal notes the applicant is of working age at [age] years old and has lived independently in Australia since his arrival [in] July 2017, a period of more than four years. He has demonstrated that he has been able to able to make use of contacts to find work and live in a foreign country without being a native speaker of the language or having any family support. In that time, the applicant has been employed in [Work sector 4] and would have acquired skills that could be utilised in his home country. Given the applicant’s ability to find work in Australia, the Tribunal rejects any claims that the applicant will be unable to obtain employment in Malaysia.
Complementary protection criteria
A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.
During the Tribunal hearing the applicant was asked to state if he had any fears about returning to Malaysia. The applicant referred in general terms to being worried about employment, the impact of COVID-19 and not being able to support his family. The applicant denied having any other fears. The applicant’s statement about financial worries followed an explanation for his circumstances in Malaysia which included working in low skilled jobs such as [Work sectors 2 and 3] and only having a secondary school education. The applicant explained he arrived in Australia as a visitor because he did not know how to apply for any other type of visa and a friend helped him apply for protection. The applicant did not explain why he had applied for protection in Australia when he does not have any well-founded fear of persecution or believe he will suffer significant harm if he returned to Malaysia.
The Tribunal is not satisfied the applicant’s concerns about employment amount to a real risk he will suffer significant harm if he is removed from Australia to Malaysia. According to his evidence, the applicant had worked in [Work sectors 1 and 2] as well as in [Work sector 3] for short periods. It may be that he will have to search other sectors such as [Work sectors 4 and 6] and consider other regions of the country. Regarding COVID-19 in Malaysia, the Tribunal acknowledges the country information that indicates the country continues to experience high level of infections and ongoing restrictions. Management of the country’s response to the pandemic is also complicated by political instability. However, Malaysia has a high level of vaccination rates which is likely to be of benefit in controlling the health crisis. In addition, if he returns to Malaysia, the applicant will be in the same position as the rest of his family and the Malaysian population in general.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wendy Banfield
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.
…

[2021] AATA 4316

31 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction