1731553 (Refugee)

1731553 (Refugee) [2023] AATA 4502 (25 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1731553

COUNTRY OF REFERENCE: Malaysia
MEMBER:Peter Haag
DATE:25 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 October 2023 at 6:40pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – stolen money – refunds to business customers – threat messages – fear of killing – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 17 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 28 September 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 18 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s background
In his application for a protection visa, the applicant claims to be a citizen of Malaysia, born on [date] in Alor Setar, Kedah province, Malaysia. He claims to be an ethnic Malay of Sunni Muslim faith who can speak, read and write Malay.
The applicant did not provide details of any family members in his protection visa application.
At the time of his protection visa application, the applicant was residing in [Victoria], Australia since July 2017. The applicant previously resided in [District 1], Kedah province, Malaysia, between April 2001 and July 2017.
At the time of his visa application, the applicant stated that he was unemployed. He did not provide details of any previous employment.
In his visa application, the applicant stated that he completed his primary and secondary schooling in Alor Setar, Kedah province, Malaysia between [specified years].
Applicant’s identity
The applicant provided the Department with certified copies of his Malaysian Identity card and his Malaysian passport.
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his 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. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Malaysia, and as such his protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.
Migration history
[In] July 2017 the applicant arrived in Australia on a UD-601 Electronic Travel Authority visa.
On 28 September 2017 the applicant lodged an application for a protection visa and on 17 November 2017 the applicant’s protection visa application was refused.
On 13 December 2017 the applicant lodged an application with the Tribunal for review of the protection visa refusal decision.
Claims for protection and other supporting documentation
The applicant submitted his claims for protection with his protection visa application on 28 September 2017.[1] His protection claims are as follows:
[1] Department file [Number], Part C, Application for a protection visa
88 I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside In. This includes countries you are a citizen or national of or you have a current visa for).
MALAYSIA
89 Why did you leave that country(s)? Provide specific details
I LEFT MY BEDAUSE OF IM A OWNER OF TRAVEL AGENCY IN MALYASIA. TWO MONTH AGO I HANDED TRAVEL GROUP TO [COUNTRY 1], BUT AFTER MY CUSTOMER PAID TO US, MY PARTNER RUN AWAY WITH ALL MONEY. I NEED TO REFUND BACK ALL THE MONEY TO ALL MY CUSTOMER AROUND [NUMBER] PERSON. I DON’T HAVE THE MONEY TO REFUND BACK AND I PLAN TO RUN AWAY TO YOUR COUNTRY, AUSTRALIA. MY CUSTOMER THREATENED TO KILL ME IF I CANT REFUND BACK THEIR MONEY.
90 What do you think will happen to you if you return to that country(s)?
THEY WILL KILL ME
91 Did you experience harm in that country(s)?
YES
THEY ALWAY CALLED ME AND SEEK ME AT MY HOUSE AND AGENCY I CANT GO BACK TO MY PLACE AND IT DIFFICULTIES TO MY FAMILY
92 Did you seek help within the country(s) after the harm?
NO
THERE NO PLACE TO SEEK FOR JELP BECAUSE IM DEALLING [sic] WITH MY FAMILY MEMBERS AND CUSTOMER TROUGHT [sic] MALAYSIA
93 Did you move, or try to move, to another part of that country(s) to seek safety?
NO
I NOT MOVING TO OTHERS PLACES BECAUSE ALL MY CUSTOMER THROUGHT [sic] OUT THE MALAYSIA AND SOME OF IT MY COUSIN AND OTHER FAMILY MEMBERS
94 Do you think you will be harmed or mistreated if you return to that country(s)?
YES
OFCOURSE BECAUSE THEY WILL KILL ME IF I CANT PAY BACK THE MONEY TO THEM
95 Do you think the authorities of that country(s) can and will protect you if you go back?
NO
THE POLICE CAN NOT PROTECT ME 24 HOURS
96 Do you think you would be able to relocate within that country(s)?
YES
YES AFTER I PAY ALL THE MONEY TO ALL MY CUSTOMERS
The applicant did not provide the Department with any further documents in support of his protection claims.
On 14 December 2017 the applicant provided the Tribunal with a copy of his protection visa refusal decision record.
At hearing the applicant gave evidence about the events in Malaysia that caused him to leave the country in fear for his life. That applicant said his business partner stole [amount] Malaysian ringgits and disappeared without trace. The money was paid to the applicant by [number] customers as part-payment for a two-day and one-night sightseeing trip to [Location 1], Malaysia. The applicant said the [number] customers were local people who lived in Malaysia.
The Tribunal informed the applicant that this evidence was materially different to the evidence he gave in his visa application as to his reason for leaving Malaysia.[2]
[2] Ibid question 89
The Tribunal put to the applicant that according to the Tribunal’s understanding of his visa application, he owned a travel agency in Malaysia, and he handed responsibility for a tour group from [Country 1], to his business partner who disappeared with the deposits they paid for the holiday. The Tribunal asked the applicant if the Tribunal had correctly understood what he said in his application. In response, the applicant said the Tribunal correctly understood what he said in the application.
The Tribunal informed the applicant that the Tribunal is of the opinion there is a material difference between his partner taking money from a group of tourists from [Country 1] and taking money from local Malaysian tourists.
The applicant avoided the issue and said his partner took the money for the [Location 1] trip.
The Tribunal asked the applicant if the tourists he referenced wanted to travel to [Country 1]. The applicant responded that was not the case and the group were to travel to [Location 1].
The discrepancy between the applicant’s oral evidence and written evidence about his reasons for leaving Malaysia, in the opinion of the Tribunal, is a material discrepancy. Having considered the applicant’s responses to the Tribunal’s concern about the discrepancy, the Tribunal finds the discrepancy between his oral evidence and written reasons for leaving Malaysia[3] weigh against accepting the deposit money was stolen, and the applicant being an accurate and reliable witness.
[3] Ibid
The Tribunal asked the applicant to provide specific information about his travel agency. He said it was running for three years. It did not have an office, but it was in the house he was renting in [District 1], a location he described as a small village, in the state of Kedah.
According to the applicant he found his customers by asking friends and other people to refer people to him who wanted to travel. He relied on ‘word of mouth’ to get customers. He had no computerised record or other records of the names and contact details of the customers who lost their money. He said he wrote their names in a notebook along with their contact details. According to the applicant’s evidence he gave all the missing deposit money to his business partner, who disappeared with the money and the notebook.
The applicant also said in his written application[4] that he would be safe after he repaid the stolen money to all his customers. In oral evidence he asked for the Tribunal to give him another five years in Australia to earn enough money to repay his customers.
[4] Ibid question 96
The Tribunal inquired of the applicant how he would locate the wronged customers. In summary, he said he would try to find them. He said he gave the book in which he listed the names of the wronged customers, and their contact details, to his business partner; and when he returned with enough money to repay his customers, he would try to find them, and a way to pay them back.
In the opinion of the Tribunal this evidence is vague, lacking in cogent specificity and speculative in nature.
It is concerning to the Tribunal that the applicant did not state he ought to be able to locate several of the wronged customers because, according to his application, one of the victims is his cousin and other victims, but not all of them, are family members.
This concern is informed by the answer the applicant gave to this question in his visa application: ‘Did you move, or try to move, to another part of that country(s) [Malaysia] to seek safety?’ to which he answered: ‘I not moving to others places because all my customer through out Malaysia and some of it my cousin and other family members.’[5]
[5] Ibid question 93
The Tribunal is of the opinion that if money was paid to him by his cousin and other members of his family, and he was being threatened with death for the loss of money, including money belonging to his unnamed relatives, it is reasonably unlikely he would forget his relatives were victims of the theft. If money was stolen from the applicant’s cousin and other relatives, rather than giving vague evidence about trying to find the victims to repay them, it is reasonable to apprehend he would have given specific evidence referencing his relatives among the victims, and through reasonable inquiries with relatives he ought to be able to locate them. Instead, he gave the vague evidence, lacking in cogent specificity, referred to by the Tribunal in these reasons: (paragraphs [35]–[39]).
At hearing the applicant described his business partner as a friend who advised him on how to grow his travel business. He had known him for about two years. The Tribunal asked the applicant what specific information he knew about his business partner. According to the applicant’s evidence, his business partner was a friend before he started the business. The applicant informed the Tribunal that he only knew his friend’s name and contact telephone number. He did not know his family or where he lived, but he trusted him.
As the applicant’s evidence unfolded in became clear that the alleged thief was not a partner in his business, rather he was a person the applicant asserts he occasionally employed to run tours for small groups. On the occasion is issue, the applicant gave his employee the money to book hotels and a trip to [Location 1].
The applicant said he tried to contact his missing friend by telephoning him, but he did not answer his phone. There is no evidence of the applicant strenuously trying to contact unnamed friend, but that he phoned him, and he did not answer the call.
Before reaching the opinion stated in this paragraph, the Tribunal relevantly considered the applicant’s evidence that he trusted his employee; the period he said he had known the employee before the theft; and, that the employee gave business advice to the applicant and previously acted as a tour guide for small groups. Nevertheless, the Tribunal finds the applicant’s evidence that he gave the deposit money paid by customers comprising the largest tour group he had ever had, and his record of the customers who were paid-up, to an employee he could only contact by telephone, leaving himself unable to contact the employee if he changed his phone number, or visit him at his home address, or trace him through his family, if he changed his phone number, or stole the money and the applicant’s client list and changed his phone number, to be unpersuasive.
There is no evidence of the applicant reporting or attempting to report the theft to the police when he first discovered what occurred, and before he left Malaysia.
According to the explanation given in the visa application, he did not try to seek help in Malaysia because there was nowhere to seek help because he was ‘dealing with my family members and customer through [out] Malaysia.’[6] The applicant’s reason for not seeking help before he left Malaysia does not indicate he decided not to report the theft to police because he distrusted the police, believed they were ineffectual, generally corrupt, or subject to the corrupt influence of any of his wronged customers, including his cousin and other family members.
[6] Ibid question 92
At hearing the applicant said he did not contact the police when he was in Malaysia, but he contacted them by telephone from Australia before he submitted his visa application. He asked them for advice about whether they could protect him. They said they could not protect him because his problem was a personal issue.
As the Tribunal understands the applicant’s evidence, he telephoned the police for advice about whether they could protect him. The Tribunal asked the applicant which police station he contacted. His response was he did not know. He said he googled Malaysian police. He was unable to verify when he called the police because it was too long ago.
There was no evidence that the tried to contact the police responsible for policing the village where he resided and his business was located. The police directly responsible for policing the applicant’s home village and location where the theft was committed, as a matter of common sense, would seem to be the relevant police centre to contact, if he was concerned, to ascertain whether the police could protect him if he returned to Malaysia, rather than googling police in Malaysia, without knowing where the police he contacted were located and if they would be likely to police the place where he lived, and the alleged crime was committed.
The Tribunal asked the applicant his reason for not mentioning the phone call to the police in his visa application. The applicant responded it was his mistake for not putting that detail in his visa application.
The applicant was asked a specific question in his visa application that addressed his mind to whether the authorities in Malaysia can and will protect him if he goes back to Malaysia.[7] This was the very matter that was on the applicant’s mind when he communicated with the Malaysian police from Australia prior to submitting his visa application.
[7] Ibid question 95

The applicant answered ‘No’ to the relevant question in his visa application and expanded his answer to state ‘The police cannot protect me 24 hours.’
Considering the gravity of the applicant’s claim that he would be killed if he returns to Malaysia, and that he asserts he was specifically informed by the responsible authorities, being Malaysian police, prior to submitting his visa application, that the police cannot protect him if he returns to Malaysia, it is reasonable to apprehend that in answering question 95, he would have included specific information about police telling him recently that the police could not protect him in Malaysia, if the police gave him that information. He did not do so.
On balance, the Tribunal is satisfied the applicant’s reason for not presenting the evidence of a communication with the Malaysian police and the information he asserts he obtained in answer to his inquiries about whether they could protect him in Malaysia, is not a reasonable explanation for why the evidence was not presented before the primary decision was made. Consequently, by operation of s 423A of the Act, the Tribunal draws an inference unfavourable to the credibility of this evidence.
In answer to the question ‘Did you experience harm in that country(s)?’ the applicant answered ‘Yes.’ ‘They always called me and seek me at my house and agency I cant go back to my place and it difficulties to my family.’[8] This answer is materially inconsistent with evidence on the same subject the applicant gave to the Tribunal.
[8] Ibid question 91
During evidence the Tribunal asked the applicant for more specific information about the threats to kill him if he did not refund the money. The applicant responded that he received an SMS from a customer. The SMS contained a threat that made him afraid for his life. The message demanded that the applicant pay [amount] ringgits to the sender and if the applicant failed to do so he will kill him.
The Tribunal inquired of the applicant whether he recognised the name of the sender at the time he received the message. The applicant replied the number was an unknown number and he did not save the message. He is sure one of his customers sent the message. The applicant also said he did not save the SMS because he has a new phone now and he never has any of his customers’ numbers on his new phone.
The applicant said in evidence he received only one SMS. The reason he felt unsafe in Malaysia was the theft of the money combined with the threatening SMS. The applicant also said in evidence the threatening SMS is the only threat he received in Malaysia.
The applicant did not refer to the SMS message in his visa application. In the application he did not identify that message as a threat that caused him to fear for his life and that it influenced his decision to leave Malaysia. If the applicant’s answer to question 91 is to be accepted, the harm he experienced in Malaysia was [phone] calls and visits to his house and agency.
The Tribunal regards the inconsistency between the description in answer to question 91 of the harm the applicant experienced in Malaysia and the evidence at hearing of the SMS, and that the SMS message was the only threat he received in Malaysia, to be a material inconsistency in his evidence. The Tribunal is of the opinion the identified inconsistency weighs against accepting the SMS threat was made, and that the applicant was threatened in Malaysia. This view of the evidence is not the end of the matter.
For ease of reference, it is convenient to return to certain parts of the applicant’s evidence. According to the applicant’s explanation for leaving Malaysia, he was the innocent victim of a serious financial crime committed by his business associate, and the victims of the crime intend to exact revenge on him if he fails to reimburse them for their financial losses; something he does not have the financial capacity to do.
The applicant had compelling evidence on his telephone of the threat to his life he was facing, being the SMS, but he asserts he is unable to produce that evidence for two reasons. First, he did not save the SMS because it was sent from an unknown number, but he was sure it was sent by one of his wronged customers who intends to kill him if he is not compensated for the loss.
Considering the gravity of the threat delivered in the message, and that it was a primary reason for the applicant’s decision to leave his home country, and the message was evidence he was at risk of harm, the Tribunal finds the applicant’s evidence that he decided to delete the SMS because it was sent from an unknown number, to be unconvincing.
Second, the applicant asserts he did not save the SMS because he has a new phone now and he never has any of his customers’ numbers on his new phone. Considering the gravity of the threat delivered in the message, and that it was a primary reason for the applicant’s decision to leave his home country, and the message was evidence he was at risk of harm, the Tribunal finds the applicant’s evidence that he decided to delete the SMS because he has a new phone, and he never has any of his customer’s phone numbers on his new phone, to be unconvincing.
Considered individually and together, the Tribunal finds the reasons given by the applicant for deleting the SMS, to be unconvincing.
The Tribunal has relevantly considered the DFAT Country Information Report Malaysia (29 June 2021) (DFAT report) and the part of the report relating to the Royal Malaysian Police (RMP) at paragraphs [5.5]–[5.9].
Considering the applicant’s evidence about his contact with the RMP, and the absence of any allegation that corruption influenced his actions or inaction in seeking police protection, and his evidence generally concerning police protection and not reporting the alleged thief to police, and considering the totality of the evidence, the Tribunal has determined the DFAT report does not materially support or detract from the applicant’s evidence and claims.
Consequently, the Tribunal is satisfied it is appropriate to give neutral weight to the DFAT report.
Findings
The evidence is insufficient to establish to the satisfaction of the Tribunal that by SMS or by calling the applicant and visiting his home and the travel agency he says he owned, a customer or customers of the travel agency threatened to kill or otherwise harm the applicant.
Additionally, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be harmed by a customer or customers of a travel agency he says he owned, because money he received as the owner of the travel agency was stolen by a person variously described by the applicant as his partner or employee, or for any other reason.
Having considered the applicant’s claims individually and cumulatively, the evidence before the Tribunal is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for the reason that he is a member of a particular social group, namely persons targeted by creditors who use unlawful threats of harm to recover money they claim to be owed, or for any other reason specified in s 5J(1)(a) of the Act, or for any other reason, if he is removed to Malaysia now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in
s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Complementary protection
The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘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’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4502

25 October 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction