1731857 (Refugee)

1731857 (Refugee) [2020] AATA 2150 (5 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731857
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Tamara Hamilton-Noy
DATE:5 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 June 2020 at 9:33am
CATCHWORDS
REFUGEE – protection visa – Malaysia – false claims in written application – no fears of harm – economic migrant – looking for work to support family – religion – Christianity – economic situation in Malaysia – access to health care – COVID-19 situation – request for ministerial referral refused – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 417
Migration Regulations 1994, r 2.08, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 7 December 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 21 September 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
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.
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 any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant arrived in Australia [in] September 2017 and lodged a written claim for protection on 21 September 2017.
In his written protection application, the applicant stated that he had been running his own business which had been operating at a loss for several years. He took out a loan from people in his community and was paying this off, but they wanted to take advantage of his situation and to get involved in illegal things such as selling drugs. He refused and they increased his interest rate and started asking him for more money. They threatened him and his family and he was beaten several times. He received threats and couldn’t work properly and started becoming depressed. His requests for help from the business and local community were refused. He moved to another part of Malaysia but relatives didn’t support him with this as they didn’t want to get involved. The applicant claimed that, if he returns to Malaysia, he would face harassment, his family will suffer and his life will be at risk.
Prior to the Tribunal hearing, the applicant’s representative provided a copy of the applicant’s baptism certificate to the Tribunal, which states that he was baptised [in] January 2018 at ‘[Church 1], [Suburb 1]’. The representative also provided submissions to the Tribunal which stated that the applicant is a victim of an unscrupulous agent, ‘[Ms A]’, who collected $1,500 from him upon his arrival in Australia as a fee to assist him with a work visa application and that the only contact he had had with the Department was during a biometric assessment. The representative submitted that the applicant was only seeking a visa to remain in Australia and work legally and that the responses he provided in the application for protection form at questions 76 to 83 ‘are untrue to the best of his knowledge’. The representative submitted that the applicant is ‘an economic migrant who travelled to Australia to look for work in order to support his struggling family back home in Malaysia following the collapse of his [business], but he did not have any problem with anyone in Malaysia’. The representative stated that the applicant acknowledges that statements made in his written protection claim were incorrect and that the applicant apologises for having made a ‘grossly unfounded/futile protection visa application’. The representative submitted that, given the current COVID-19 lockdown, the applicant is unable to safely return to Malaysia and is seeking the Tribunal’s referral to the Immigration Minister for intervention ‘to allow him to remain in Australia lawfully until such a time it is safe for him to depart Australia in an orderly and timely manner’.
The Tribunal hearing was conducted on 27 May 2020. Due to the Tribunal’s Registry being closed as a result of COVID-19, the hearing was conducted by telephone, with the applicant present at his representative’s office. The applicant gave evidence on affirmation at the hearing and the Tribunal had at the hearing a Malay interpreter. The applicant did not use the interpreter during the hearing, stating to the Tribunal that his preference was to converse in English. The Tribunal was satisfied from the responses given by the applicant to the Tribunal’s questions that that applicant understood the Tribunal throughout the hearing.
The applicant stated to the Tribunal that he is [age] years of age and was born in Kuala Lumpur. Prior to travelling to Australia, he had visited [Country 1] in 2014 for a holiday and [Country 2] 10 years ago, working in a [workplace] for 12 months. The passport that he had given the Department, issued [in] 2016, had been a renewed passport when an earlier passport he held had expired.
The applicant stated that he has a wife, [number of] children and a mother living in Malaysia. He also has [number of] siblings. All of his family are residing in Kuala Lumpur and his elderly mother is living with his wife and children, but also stays with his other siblings. His children are [different] years of age and are all studying. He does not have any family in Australia.
The applicant told the Tribunal that he was self-employed for 10 years in Malaysia, running his own [business]. After 2017 he had a ‘crisis’ and the business starting running at a loss. He first used up his own resources, then sold his house and then borrowed money from close friends. As the business was still running at a loss, he then decided to come to Australia to earn a living; his wife agreed he needed to go and work and start a new life. He has repaid some amounts to his friends but still has amounts owing. His friends are understanding of his situation and have told him to pay them when he can.
The applicant stated that in Australia he initially worked in [Occupation 1]. He then obtained [relevant licences] and has been working as [an Occupation 2]. He worked as [an Occupation 3] for a while and is now working for [Employer 1] in addition to his [Occupation 2] work. He is sending money back to his wife in Malaysia and his whole family are reliant on his income.
The Tribunal asked whether there were any other reasons that the applicant had left Malaysia and he said there were no other reasons. He wants to start a new life in Australia and has the opportunity here to do better work, and the currency exchange also helps him.
The Tribunal asked whether the applicant had experienced any harm in Malaysia and he said no.
The Tribunal asked what the applicant fears if he has to return and he said if he goes back he is ‘completely lost’. Because of COVID-19 there are not a lot of opportunities there now and he moved to Australia after ‘all doors in Malaysia shut down’. He is currently studying a [qualification] and wants to be able to finish this course and his goal is to bring his family to Australia. The Tribunal asked the applicant what he meant by being ‘lost’ if he returns to Malaysia and he said this is about his finances, and everything requires money. He is unable to obtain any further loans with the bank and hasn’t paid his credit card and personal loans back and would be lost financially. The Tribunal observed that it had to consider whether the applicant would face serious or significant harm upon return and he stated in response that the Tribunal hadn’t seen his past record but if he returns he cannot be a good father and husband and this will be harmful to him.
The Tribunal asked the applicant about his protection claims to the Department and he stated that this was a mistake and that he came to Australia in a bad shape financially and wanted to save his family. While still in Malaysia, he called a friend who was in Australia and his friend told him to come on a visa and then pay an agent $1,500. He saw a [Ms A] and she said she would apply but what she put in the claim is not his story and he thinks it was cut and pasted and she was doing this for many clients. He then went for a biometric test and ‘that was all’. The written claims have nothing to do with his reasons for coming to Australia. He had not experienced harm in Malaysia and had not borrowed money from loan sharks.
The Tribunal observed that the applicant had provided a baptism certificate to the Tribunal and asked about its relevance to his claims and he said that it is just additional supporting documentation and that he is of a Roman Catholic background but has been baptised as a born again Christian through [Church 1] in [Suburb 1], the parent church, and he attends the [a] branch of the church. His religious practices in Australia have included attending a weekly service and a [bible] study class. He attended church regularly in Malaysia and experienced no problems practicing his religion in Malaysia.
The Tribunal asked the applicant why he believes he cannot currently return to Malaysia and he said because he has a finance issue and has no plans to return at the moment. He is unable to go back until he has settled his finances, and the borders are currently closed with COVID-19. The Tribunal asked the applicant if he returned to Malaysia whether he would be denied access to treatment or hospital, or whether he would be denied treatment for any reason, and he said he could access medical care but there is a risk because infection rates are quite bad in Malaysia. Malaysia’s hospitals are poor and with his current finances he is unable to afford private medical treatment.
The Tribunal asked the applicant about his representative’s written submissions that he should be referred for Ministerial Intervention. The applicant stated that the reason for this is that he feels he is a victim of his previous fraudulent agent and he can’t return because of his finances and because of fear of COVID-19 and because of the health care system and to save his family. At the moment he is ‘working genuinely’ in Australia and wants to bring his family here because people are given the opportunity to excel and the system is transparent.
The Tribunal asked the applicant whether he fears harm from anyone if he returns to Malaysia and he said ‘no, of course not’ and that his fear is COVID-19. He also is concerned that so far his friends have been good about him repaying them slowly but when he returns he will have no way to keep repaying them and they might get angry with him, ‘because people can change’.
The Tribunal summarised and discussed the following country information with the applicant during the hearing, and invited him to comment on the information during the hearing.
The Tribunal noted that, given the applicant had provided a copy of a baptism certificate to the Tribunal, it had considered the country information relating to Christians in Malaysia, contained in the most recent DFAT report. The report states that the Constitution provides for Islam to be the religion of the federation but for other religions to be practiced in peace and harmony in any part of the federation, and for every person to have the right to practice and profess their religion.[1]
[1] DFAT Country Information Report Malaysia 13 December 2019, 3.23.
Christians in Malaysia make up 9.2 per cent of the population.[2] Christians are predominantly located in Sabah and Sarawak. In April 2015, approximately 50 protestors demanded the removal of a cross on a church in Kuala Lumpur, however, the cross was removed and there were no reports of violence. DFAT is not aware of any other similar incidents more recently. There have also been a number of abduction cases in recent years where Christian pastors have been suspected of proselytising, and with probable state involvement.[3]
[2] DFAT Country Information Report Malaysia 13 December 2019, 3.25.
[3] DFAT Country Information Report Malaysia 13 December 2019, 3.56 – 3.62.
DFAT assesses that Christians in Malaysia generally live free from societal discrimination on a day-to-day basis. Christians are usually able to worship freely without significant official interference, although those proselytising or promoting Christianity to Muslims face a moderate risk of harassment by state authorities that may include violence or abduction.[4]
[4] DFAT Country Information Report Malaysia 13 December 2019, 3.62.
The above information was discussed with the applicant during the hearing and he stated that he did not want to make any comment on the information.
The Tribunal noted that, given the applicant had also raised claims relating to his financial situation, the Tribunal had considered the country information relating to Malaysia’s economic situation, contained in the most recent DFAT report.
DFAT states that the World Bank classifies Malaysia as an upper middle-income, export-oriented economy which has transformed since independence from a commodity-based economy to a leading producer of electronic parts and electrical products, oil and natural gas and a variety of other manufactured products. Malaysia is the second largest producer and exporter of palm oil and is also ASEAN’s largest energy exporter.[5]
[5] DFAT Country Information Report Malaysia 13 December 2019, 2.9.
Malaysia’s economic performance over the past several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line falling from over 50 per cent in the 1960s to less than one per cent today. Inequalities remain, however, for indigenous people and the poorest 40 per cent of the population and poverty rates are higher in rural areas. In October 2019, Prime Minister Mohamad launched ‘Shared Prosperity Vision 2030’, a plan to provide a decent standard of living for all Malaysians and to narrow the wealth gap and the urban-rural divide by 2030.[6]
[6] DFAT Country Information Report Malaysia 13 December 2019, 2.10 – 2.11.
In February 2019 the Malaysian Department of Statistics reported an unemployment rate of 3.3 per cent and in June 2019 reported a labour force participation rate of over 68%.[7]
[7] DFAT Country Information Report Malaysia 13 December 2019, 2.12.
The above information was discussed with the applicant at the hearing and he stated in response that he believes this situation has all changed now because of COVID-19 and is no longer relevant. He is in touch with family and friends in Malaysia and most of them have no job and the help from the government is not enough. If he returns he will find it impossible as the people already there are suffering. The numbers of cases increased yesterday and there may be a second lockdown soon.
The Tribunal noted that it had also considered country information about Malaysia’s health system, given the applicant’s representative had raised in his written submissions that the applicant is unable to return due to COVID-19.
The most recent DFAT report states that there has been a significant improvement in health standards in Malaysia in recent decades. Malaysia has a well-established universal health care system which is based on the UK’s system and which is accessed by 78% of the population. Malaysia has both a nationwide public health service and a growing private sector, largely in urban areas. Health care is generally very accessible to residents in urban areas in peninsular Malaysia. Sabah and Sarawak are an exception to this, with residents often required to travel long distances. The minimum documentation required to access public health services is a birth certificate.[8]
[8] DFAT Country Information Report Malaysia 13 December 2019, 2.18 & 2.21.
The above information was discussed with the applicant during the hearing and he stated in response that this is based on their own experiences as a middle-class family but the current COVID-19 situation is very scary for him and his family. In conversations with his family he has been told that services are still very bad. His family have said there are so many people dying and not all are recorded, and a lot of his friends have told him the death rate is higher than recognised.

The applicant stated that there was nothing more he wanted to tell the Tribunal.
The applicant’s representative stated to the Tribunal that his client is a victim and was not aware of the application lodged on his behalf. His client does not have any issue in Malaysia but, given the current shutdown, it is impossible for his client to return and this is a situation beyond his control. The Tribunal sought submissions on what unique or exceptional factors would make the matter appropriate for referral to the Minister and the applicant’s representative stated that COVID-19 is the only unique or exceptional circumstance they are relying on.
Findings of the Tribunal
The Tribunal accepts that the applicant is a [age]-year-old who was born in Kuala Lumpur. The Tribunal accepts the applicant had travelled previously to [Country 1] for a holiday and had spent 12 months in [Country 2] working in a [workplace]. The Tribunal accepts the applicant was self-employed for 10 years in a [business]. The Tribunal accepts the applicant’s mother, wife, [number of] children and [number of] siblings are all residing in Kuala Lumpur.
Both the applicant and his representative have stated that the applicant’s written claims for protection were false and were prepared by a former migration agent. The Tribunal accepts the applicant’s evidence, given at the hearing, that he did not borrow money from loan sharks and that he had been referred to the migration agent by a Malaysian friend who had been residing in Australia.
The Tribunal finds that the applicant did not leave Malaysia because he had borrowed money from people in his community who had pressured him to become involved in illegal activities such as selling drugs. The Tribunal finds that the applicant was not threatened, that his family was not threatened and that he was not beaten. The Tribunal finds that the applicant did not receive threats, that he was not unable to work properly or that he became depressed. The Tribunal finds that the applicant did not relocate to another area of Malaysia to avoid people he had borrowed money from. The Tribunal finds that, if he returns to Malaysia now or in the reasonably foreseeable future, the applicant does not face harassment, his family will not suffer and his life will not be at risk due to money borrowed to cover business losses. The Tribunal finds there is not a real chance the applicant will face serious harm upon return to Malaysia because of money borrowed to cover business losses.
The Tribunal accepts that the applicant’s [business] started running at a loss and that he used up his own financial resources and sold his house before approaching friends and requesting to borrow money from them. The Tribunal accepts that the applicant came to Australia to earn a living and that he is currently working and supporting his family and making repayments to the friends that he borrowed money from. The Tribunal accepts that the applicant did not experience harm in Malaysia and that there is no one he fears harm from if he returns.
The applicant stated that he is unable to return to Malaysia for financial reasons and that, if he returns, he would be unable to obtain further loans from a bank and has outstanding credit card debt and personal loans. The country information considered by the Tribunal, discussed with the applicant at the hearing, describes Malaysia as an upper middle income economy with less than one per cent of households living below the poverty line and with the government having a stated plan to further improve the living standards for all Malaysians in the upcoming decade. The Tribunal accepts from the applicant’s response to this information at the hearing that he has concerns that the situation has changed due to the current COVID-19 lockdown and that he believes any help from the government would not be enough.
The Tribunal accepts that the applicant experienced financial difficulties when running a business in Malaysia. However, the applicant described his family during the hearing as a middle-class family, and he has experience running his own business, has been able to find a range of work while in Australia and has obtained, since being in Australia, a [specified] licence and is currently completing a [qualification]. The Tribunal accepts that the economic situation in Malaysia has altered since CODIV-19, however, the Tribunal finds that the applicant has been able to find work in Australia during the COVID-19 pandemic and that he would be able to find work if he returns to Malaysia. The Tribunal finds that there is not a real chance the applicant will face serious harm if he returns to Malaysia now or in the reasonably foreseeable future because of being unable to obtain loans from a bank or due to outstanding credit card and personal debt.
The applicant does not claim to fear harm in returning as a practicing Christian, however, given he submitted a baptism certificate to the Tribunal, the Tribunal has considered this claim for completeness sake. The Tribunal finds that the applicant grew up as a Roman Catholic and that he attended church while in Malaysia. The Tribunal finds that the applicant had no concerns practicing his religion while in Malaysia and that he did not experience harm because of his religious faith in Malaysia. The Tribunal accepts that the applicant was baptised for the second time as a born again Christian in early 2018. The Tribunal accepts that he would continue to attend church if he returns to Malaysia. The country information considered by the Tribunal and discussed with the applicant at the hearing states that Christians in Malaysia are able to live day-to-day without discrimination and that, under the Constitution, religions other than Islam are recognised. The Tribunal finds that the applicant would not proselytise if he returns to Malaysia and finds that he would not face harassment, violence or abduction. The Tribunal finds that there is not a real chance the applicant will face serious harm if he returns to Malaysia now or in the reasonably foreseeable future because of his religious beliefs.
The applicant and his representative have submitted that the applicant is unable to return to Malaysia due to COVID-19. The applicant’s evidence to the Tribunal was that he would be able to access medical care if he returns to Malaysia but would be unable to afford private treatment. The country information considered by the Tribunal and discussed with the applicant at the hearing states that there has been a significant improvement in health standards, that there is a well-established health care system and that public health services are very accessible to residents in urban areas. The Tribunal finds that, if he returns to Malaysia, the applicant would return to Kuala Lumpur where his wife, children, mother and [number of] siblings are all residing. The Tribunal finds that the applicant would be able to access medical care in Kuala Lumpur and that he would not be denied medical treatment for any reason. The Tribunal finds there is not a real chance the applicant will face serious harm if he returns to Malaysia now or in the reasonably foreseeable future because of being denied medical treatment.
The applicant stated to the Tribunal that he is concerned that the friends he has borrowed money from might get angry at him and that people can change. The Tribunal accepts that the applicant owes money to friends, however, finds that the applicant’s friends have told him he is able to repay amounts borrowed slowly. The Tribunal is not satisfied the applicant faces harm from his friends if he returns to Malaysia. The Tribunal finds there is not a real chance the applicant will face serious harm if he returns to Malaysia now or in the reasonably foreseeable future because of money owed to his friends.
The Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason, or when his claims are considered cumulatively, if he returns to Malaysia now or in the reasonably foreseeable future. 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).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. For the reasons stated above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm.
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 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).
The applicant’s representative has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant’s representative submitted to the Tribunal at the hearing that the sole circumstance relied upon for this request is the current COVID-19 situation. The Tribunal finds that the applicant has a current and valid passport that would allow him to return to Malaysia when travel restrictions ease.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tamara Hamilton-Noy
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.
…

[2020] AATA 2150

5 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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Natural Justice