1733265 (Refugee)

[2023] AATA 4344

1733265 (Refugee) [2023] AATA 4344 (28 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1733265

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:28 September 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 September 2023 at 12:37pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – no Convention nexus – victim of sexual assault – economic conditions – gender-based violence – return visits to Malaysia – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423A, 424, 499
Migration Regulations 1994, Schedule 2

CASES

BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CHB16 v MIBP [2019] FCA 1089
CQG15 v MIBP [2016] FCAFC 146
CSV15 v MIBP [2018] FCA 699
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
FMN17 v MICMSMA [2020] FCA 326
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
WAKK v MIMIA [2005] FCAFC 225  

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is [an age]-year-old citizen of Malaysia. She was born in Kuala Lumpur, Malaysia. In her application for protection she identified herself as a Muslim and as being ethnically Malay.

3. The applicant married in Australia in December 2020 and has one child of that marriage who was born in Australia and is [age]. The applicant, her husband and child live together in Perth.

4. The applicant arrived in Australia [in] July 2017 on a UD‑601 Electronic Travel Authority visa. She applied for the protection visa on 2 November 2017. On 14 December 2017 a delegate of the Minister refused that application. The applicant applied for a review of that decision with this Tribunal on 28 December 2017. She provided a copy of the delegate’s decision with her application for review.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUES

6. 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). The issue in this case is whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or (aa) of the Act; that is, whether she is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below.

   PROTECTION CLAIMS

   Protection visa application

7. In her written protection visa application, the applicant stated that she was born in Kuala Lumpur, Malaysia. She indicated she had never been married or in a de facto relationship and did not list any family members in Australia or Malaysia. She stated that she is a Malay Muslim and did not list any employment or educational history. She listed one residential address in Australia.

8. The applicant’s claims for protection as detailed in her application form were summarised in the delegate’s decision as follows:

   ·The applicant claims she was raped by her neighbour ‘a few years ago’, which caused her psychological and physical harm and is now afraid to leave her house in Malaysia to complete her daily routine.

   ·The applicant claims her neighbour will rape her again if she returns to Malaysia.

   ·The applicant claims she feels neglected by her parents because they do not believe the events occurred.

9. There was no record of the applicant having been interviewed by the Department and, other than identity documents, she did not submit any evidence to the Department in support of the claims made in her application for the visa.

   Review application

10. On 28 December 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.

11. The Tribunal wrote to the applicant on 17 April 2023, pursuant to s 424(2) of the Act, inviting her to provide information in relation to her application. The information sought related to the applicant’s current circumstances and any addition or changes to her claims for protection.

12. On 28 April 2023 the applicant responded to the invitation. In response to the invitation, in addition to her passport and Western Australian driver’s licence, the applicant submitted:

    ·A copy of a Malaysian passport for [Husband A] (the applicant’s husband) and Western Australian driver’s licence for [Husband A];

    ·A copy of a Commonwealth Marriage Certificate in the name of the applicant and [Husband A] for a marriage which took place in Western Australia [in] December 2020;

    ·A copy of an Islamic marriage certificate (Nikah) for the same marriage; and

    ·A copy of the birth certificate for a child of the marriage who was born in Perth on [date].

13. The applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments on 19 May 2023. The hearing was conducted in person at the Tribunal’s Perth Registry. The applicant responded to the hearing invitation indicating she would attend and did not intend to call any witnesses.

14. The hearing was conducted with the assistance of an experienced Malay interpreter. No issues regarding the particular interpreter or the interpretation services provided were raised by the applicant with the Tribunal. The applicant was not represented in relation to the application for the visa or the review.

15. The applicant’s claims for protection and the evidence on which she was seeking to rely were discussed at the hearing. This information and the applicant’s oral evidence to the Tribunal at the hearing are discussed further below. The Tribunal also discussed with the applicant relevant country information, including information contained in the most recent country information report on Malaysia published by the Department of Foreign Affairs and Trade (DFAT), the Country Information Report: Malaysia dated 29 June 2021 (the 2021 DFAT Report). Relevant country information is discussed further below.

    The applicant’s husband’s application

16. The applicant’s husband was also an applicant for a visa, the refusal of which resulted in an application for review before the Tribunal.[1] That application was constituted to the same member and affirmed on 10 March 2023.

    [1] Tribunal Number 1831948      

17. The Tribunal discussed with the applicant at the hearing on 19 May 2023 the applicant’s husband submitted a document in support of his application titled ‘Statement marriage and my wife’ which was signed by the applicant and her husband. The statement attached the same marriage and birth certificates which the applicant provided in support of her application along with photographs of [Husband A] and his family. The statement addressed the applicant’s wife’s family background and their economic circumstances in Malaysia and the reasons she and the applicant wish to stay in Australia, in summary due to their relatively better economic circumstances in Australia as opposed to Malaysia.

18. At the hearing the Tribunal put to the applicant the information relating to evidence presented in her husband’s application which, if accepted, would be the reason or part of the reason for affirming the decision to refuse the applicant a protection visa. The particulars of the information were:

    ·The applicant is married to [Husband A].

    ·Information before the Tribunal suggests on 4 March 2023 the applicant’s husband submitted a document in support of his application titled ‘Statement marriage and my wife’ which was signed by the applicant and her husband. The statement attached the same marriage and birth documents which the applicant provided in support of her application for protection along with photographs of the applicant with [Husband A]. The statement addressed the applicant’s family background (as [Husband A’s] wife), the couple’s economic circumstances in Malaysia and the reasons the applicant and her husband wish to stay in Australia.

    ·In summary, that statement said the applicant and her husband wanted to stay in Australia due to their relatively better economic circumstances in Australia as opposed to Malaysia.

    ·That statement made no reference to the claims the applicant made in her application for protection to fear harm on return to Malaysia for the reason of having been sexually assaulted by a neighbour and because her family would not believe her.

19. The Tribunal outlined that the information was relevant because the fact that statement made no mention of the claims the applicant had made in her protection visa application may cast doubt on those earlier claims and suggest that she wished to remain in Australia for economic reasons. The Tribunal explained this may cause it to find the applicant does not face a real chance or real risk of serious or significant harm on return to Malaysia for the reasons claimed in her protection visa application and does not meet the refugee or complementary protection criteria. This would be the reason or part of the reason for affirming the decision under review.

20. The applicant indicated she did not have any questions regarding the information and elected to respond to the information at the hearing. She said that her husband did not ask her to write down her claims, he just asked her to write the statement. She said she hadn’t told her husband about the nature of her claims because she was worried he wouldn’t accept her. She said she had told her aunt and her aunt had brought her to Australia because ‘this place cares more for women and children’. She said her aunt had returned to Melaka and she had lost contact with her.

21. The information and the applicant’s responses are considered further below.

    CRITERIA FOR A PROTECTION VISA

22. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to 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.

23. 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.

24. 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).

25. 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–5LA, which are extracted in the attachment to this decision.

26. 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

27. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

28. The Tribunal notes in particular that it has had regard to the 2021 DFAT Report in considering the claims raised in the application.

    CONSIDERATION

29. The applicant travelled to Australia on a Malay passport issued and claims to be a Malay citizen. A copy of this passport was provided to the Tribunal. The delegate had no concerns about her claimed nationality and the Tribunal accepts the applicant is a national of Malaysia and has assessed her protection claims accordingly.

30. The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purposes of the refugee and complementary protection assessments.

    Analysis, reasons and findings

31. The Tribunal has carefully considered the claims of the applicant in her original application for protection and her subsequent application to this Tribunal, individually and then cumulatively. These claims are detailed further in the assessment below.

32. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[2] The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

    [2] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.

33. Section 5AAA of the Act clarifies that it is the responsibility of an 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. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[3]

    [3] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].

34. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

35. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]

    Applicant’s Background

    [4] MIMA v Rajalingam (1999) 93 FCR 220.

    [5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

36. The Tribunal discussed with the applicant her family background and circumstances at the hearing. She told the Tribunal she was a Sunni Muslim and ethnically Malay. She was born in Kuala Lumpur, Selangor, Malaysia. Her parents reside in [Town 1 in] Selangor, Malaysia where they moved to around three years after she left Malaysia. Prior to that they had been living in [Suburb 1], Kuala Lumpur. Her father works selling [product 1] online and her mother does [specified work]. Her father had previously worked as an [occupation 1].

37. She [has specified family members]. All her siblings and her parents reside in Malaysia. [Some] of her siblings are married. Her [specified family members] are living with her parents and did not complete [school] due to financial constraints. [Specified family members] are now [specified ages] years old. They help with the [products 1]. [Some] siblings are married and live in various locations in Selangor. [They] are working. She is in contact with her family in Malaysia.

38. The applicant went through to the [grade] of high school. She left and started working in [industry 1]. She worked in [workplace] in Klang, Selangor for about a year, living at the [place] where she worked. Her family were living in [Suburb 1]. After that she worked at a [similar worklace]. 

39. In early 2017 she travelled to [Country 1] in an attempt to leave Malaysia.  She worked in a seaweed factory but said she could not stay in [Country 1] because of the language differences.  She returned to Malaysia and later that year travelled to Australia.

40. After coming to Australia, she met her husband in 2019 and married in December 2020. They met while working in a [factory] in Australia. Her son was born in [year]. Her husband was born in [Suburb 2], Malaysia. His parents remain living there. He also has siblings living in Malaysia. One of his [siblings] is living with the applicant and her husband in Australia. She and her husband both currently work in [another] factory. He is in contact with his family in Malaysia.

41. The applicant’s son, who is [age], was born in Australia. He is not included in her or her husband’s applications for protection.

42. The applicant came to Australia in 2017 with her adoptive aunty who she met in [Country 1]. When they arrived in Australia, she stayed in a home with her aunty. She said she had asked her aunty to come with her and look after her. She planned to try to remain in Australia. Initially, she was relying on money loaned from her aunty and housemates and friends before she was able to work. Her aunty has since returned to Malaysia and they have lost contact.

    Sexual assault claims

1. The applicant’s claims, as expressed in her application for protection and initially before the Tribunal, focussed on her claim to have been raped by a neighbour in Malaysia.

2. At the hearing when the Tribunal asked why she applied for the protection visa she said it was because she was scared and didn’t want to go back to Malaysia. The Tribunal asked why she was scared and she said there was something she was afraid would happen to her which she didn’t want to happen. She said she ‘may have been a victim of someone’s lust’. The Tribunal asked what she meant and she said she didn’t want it to happen again. When asked what happened she said her neighbour came to her house and maybe he saw that she was an easy target. Her family has a good relationship with him and she doesn’t want this to happen again. The Tribunal asked where and when this event happened and she said it was in [Suburb 1] in 2016.

3. The Tribunal asked if she told anyone and she said she told her mum but she didn’t believe her. She said she was ‘more keen’ to believe him than to believe her. The Tribunal indicated it understood this might be upsetting for the applicant but queried why she would be at risk of harm because of this. She said he is always with her family and comes there all the time. The Tribunal asked why when her family did not live in the same area anymore and she said that in her mind she feels he is always with her family.

4. The Tribunal discussed with the applicant that her circumstances had changed significantly since she left. She was now married with a family of her own. She said she had her strength here with her husband. The Tribunal put to her that if she returned home she would be returning with her husband and son and not living with her family as she had done previously. The Tribunal asked if there was any reason to think she would be at risk of harm as she feared when she had her husband’s care and protection and was returning as part of her own family unit. She said ‘if possible I don’t want to see him [the perpetrator] even once’.

5. The Tribunal put to her that the fact it was upsetting was understandable but that being upset at the prospect of seeing this person again and being reminded of things that are difficult or upsetting is not the same thing as being at risk of being harmed by that person because she has returned to Malaysia. She did not respond to this.

6. The Tribunal asked if they could live with her husband’s family in [Suburb 2] and she said she did not want to live with them because she was scared because her husband does not know what happened to her and she does not want her in-laws or husband to know what happened to her. The Tribunal asked if there was any reason they would need to know and she said she didn’t want the families to know. She said if she goes back to [Suburb 2] the perpetrator may come to know that she is in Malaysia.

7. The Tribunal queried if there was any reason to think the perpetrator would seek her out in [Suburb 2] if he was aware she was married and living with her husband’s family. She said that she didn’t know. The Tribunal asked if she could go to the police if he did seek her out and she said ‘I could I guess but I don’t know what will happen after that because he is always with my family’.

8. The Tribunal asked if there was any reason her family could not come to visit her rather than her travelling to them if she was uncomfortable or fearful about being at their home and she said she didn’t know.

9. The Tribunal explored if the applicant had spoken to anyone in Australia about what had happened to her like a doctor or psychologist or a specialist counselling service. The Tribunal encouraged the applicant to consider seeking support for her fears and stress related to her experience. The Tribunal noted that while it understood it might be difficult to talk about such things to family members there were other people she could talk to who had experience in helping people to deal with events like those she had experienced. The Tribunal noted this was a matter for her but that there were services that might help her deal with her fears regarding what had happened to her.

10. The Tribunal noted that there was both a subjective and objective element to whether an applicant had a ‘well-founded fear of persecution’. This means that even if someone genuinely felt fearful about something happening to them, there also needed to be an objective basis for that fear. The Tribunal noted that even if it accepted that someone had harmed the applicant in the past in a way that made her feel fearful of returning to Malaysia, changes in her circumstances meant her life was quite different. She was not dependent on her parents and there is no reason for her to have to live with them and run a risk of seeing the perpetrator. This may give rise to a question about whether her fear of suffering further harm is well-founded. It also raised the issue of whether the authorities in Malaysia, such as the police, would be willing and able to provide assistance and protection to her should she consider she is at risk of being harmed by her former neighbour.

11. The Tribunal notes that country information indicates that gender-based violence is an issue in Malaysia, as it is in many countries.  The 2021 DFAT Report notes in relation to gender-based violence in Malaysia:[6]

    Section 375 of the Penal Code defines rape as when a man forces sexual intercourse with a woman without her consent, against her will, or if she consented out of fear for her life. Section 375(g) states it is an offence to have sexual intercourse with a girl aged below 16, with or without her consent. Section 376 provides for punishment of between 10 and 30 years’ imprisonment, while whipping can also be imposed on those who commit rape in certain circumstances. Section 574 provides for a maximum penalty of five years’ imprisonment for marital rape should it have caused hurt or fear of death. The application of this provision is reportedly weakened in many states due to ambiguity between it and syariah-based law, which prohibits wives from disobeying the ‘lawful orders’ of their husbands and therefore discourages them from reporting to authorities.

    Amendments to the Domestic Violence (Amendment) Act (2017) strengthened protections for victims of domestic violence. The Act expanded the definition of domestic violence, and protects spouses, former spouses, children, family members, ‘incapacitated adults’ who are living as members of the family, and de facto spouses (couples who have gone through a religious or customary marriage ceremony, but have not registered their marriage). The Act still does not cover non-married couples, however, and does not include marital rape in the definition of domestic violence. The amendments also introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week and prevent a perpetrator from entering a safe location. In addition to EPOs, victims of domestic violence can obtain interim protection orders (IPOs) and standard protection orders (POs). Violations of any of the protection orders can result in a prison sentence of up to six months and/or a fine of MYR2,000 (AUD630), while multiple violations can result in the offender being jailed for between 72 hours and up to two years and fined up to MYR5,000 (AUD1,600). If a perpetrator of domestic violence commits acts of violence when violating a protection order they can be fined up to MYR 4,000 (AUD 1,260) and/or receive a prison sentence of up to one year.

    [6] At [3.124]–[3.125].

12. The Report goes on to note that:[7]

    Despite the enhanced legal protections available to victims, NGOs report violence against women in the form of rape, domestic violence, and family sexual abuse remains a significant problem. According to RMP statistics, there were almost 5,000 cases of domestic violence against women reported in 2018, and 5,513 cases of domestic violence and 1,582 cases of rape reported in 2017. A study conducted in 2020 which compared five domestic violence surveys found that the prevalence of intimate partner violence against women ranged between 5 and 36 per cent, with the wide range partly attributed to the difficulty in measuring this form of violence. Local sources believe that domestic violence, rape and family sexual abuse remain under-reported because of traditional beliefs in the sanctity and privacy of marriage, the level of shame involved, and reluctance to expose a perpetrator within the family. While there was reportedly a significant increase in reports of cases of domestic violence immediately following the passing of the amendments, reporting rates subsequently tapered off due to a perceived lack of support and resources for victims. The government does not separate domestic violence deaths from other forms of unlawful killing, so it is difficult to ascertain accurate statistics. No statistics or government reports identify whether so-called ‘honour killings’ (murders committed to punish individuals perceived to have brought shame upon their family or community) occur.

    Women’s groups report the need for increased training, enforcement, and resources for state protection bodies engaged in preventing violence against women, along with further legislative improvements. Although the RMP’s Criminal Investigation Division includes a Sexual Investigation Division, overall police training on issues related to violence against women is reportedly limited. For example, sources report that police commonly return victims of domestic violence to the perpetrator, as they perceive the issues as private family matters. The judiciary also reportedly receives little or no training on the application of relevant laws. The Ministry of Home Affairs reported in 2016 that only 16 per cent of reported rape cases in the preceding decade had gone to court, and that just 2.7 per cent of all reported cases had resulted in guilty verdicts.

    [7] At [3.127]–[3.128].

13. The Report also details services available to women suffering gender-based violence, including issues for some women in accessing those services:[8]

    Several government and non-government bodies provide shelters and assistance to victims, but contacts report that these services are inadequate for demand. The government introduced One Stop Crisis Centres (OSCCs) in the emergency departments of Malaysian hospitals in 1996, which aim to provide a centralised one-stop facility to victims. The Women’s Aid Organisation reported in 2019 that there are OSCC services in 102 government hospitals nationwide, with the number of clients who access each OSCC varying from fewer than 10 to over 500 a year. The OSCC in Kuala Lumpur includes examination by female doctors, evidence management, referrals and crisis intervention, counselling, temporary shelter and legal assistance. According to the Women’s Aid Organisation, the quality of OSCC services differs among hospitals in Malaysia, and significant barriers keep OSCCs from functioning as intended. These barriers include: a lack of routinely available emergency contraception; referral for abortion for unwanted pregnancies being dependent on the views of the Head of the Obstetrics and Gynaecology Department; low levels (or lack) of follow up to identify and treat HIV and other infections; and low levels (or lack) of support for the emotional well-being of the women who access the centres. The Women’s Aid Organisation also reported that many survivors of domestic violence and rape living in rural areas did not have access to a coordinated service.

    [8] At [3.129].

14. With respect to gender-based violence, DFAT assesses that:[9]

    while the situation is generally improving, a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave family settings safely. These factors include: ambiguity between federal and state laws, lack of application of laws, limited capacity within the police and judiciary, familial shame, lack of awareness of rights.

    [9] 2021 DFAT Report at [3.133].

15. The Tribunal notes that while country information suggests gender-based violence is an significant problem in Malaysia the analysis indicates this is particularly problematic in the context of domestic and familial relationships.  Country information also records factors that might inhibit women accessing support or protection including familial shame.  The Tribunal considers this country information is consistent with the applicant’s claims of past harm. However, the country information does not suggest, and the applicant did not claim, that the applicant would be targeted or persecuted for the essential and significant reason of her gender.  The country information also suggests that services, supports and legal protections are available to the applicant on return to Malaysia, particularly having regard to her changed circumstances and the fact the perpetrator is not someone with whom she would be engaged with in a familial or domestic relationship.

16. The Tribunal put to the applicant that while the country information suggested that women in Malaysia may be subjected to gender-based violence, there are laws in place to protect them and services available to those who reach out to the authorities for assistance. She accepted she could approach authorities but said she didn’t want her husband to know what had happened to her in the past, and she didn’t want to live with his family, she just wanted to live with her husband and her son.

17. The Tribunal noted there was no reason for her husband to know about her claims and what she tells him is a matter for her. The Tribunal asked if she knew what her husband’s claims were and she said she didn’t know. She said he was on a bridging visa. She said she gave a statement in support of her husband’s application which went through her background. She said she did not mention her claims in that statement.

18. The Tribunal asked if she had any concerns about returning related to her husband or his claims for protection and she said no.

19. The Tribunal asked if she had concerns or fears in relation to her son going to Malaysia and she said it might be a problem because she would have trouble starting over in Malaysia. Although she has her own family she will still be fearful that the perpetrator will start following her and she doesn’t want that to happen. The Tribunal asked why he would follow her when it seemed that might place him at significant risk of being pursued or challenged for his actions and getting in a lot of trouble from authorities or from her husband now that she was married and had a family and was not dependent on her parents who were friends with the perpetrator. She said she didn’t know. She said she didn’t know how she would take her family home. She didn’t know what the situation would be and she didn’t know how she would re-establish herself. The Tribunal asked if she could stay with her husband’s family temporarily while they established themselves and she said she didn’t know because she met her husband in Australia.

20. The Tribunal asked again what the applicant feared may happen to her if she went back to Malaysia and she said that the person, [Mr A], would harm her again. She said he lived in [Suburb 1]. The Tribunal asked if he had attempted to contact her in the seven years since she left and she said yes. She said he had her old number. She said he rang her in the first five months after she arrived and as soon as she heard his voice she changed her number. There has been no contact since then.

21. In terms of details regarding [Mr A] she said he used to be [an occupation 2] and he was in his [age range]. She did not know what he did now or exactly how old he was. The Tribunal asked how she would see him if her parents had moved and she said she didn’t know if he visited but she knew he was around her family because when she asked her [siblings] if he still lived in the same place they said he does. The Tribunal asked how they knew when her family had moved and she said her brother that is married still lives in the old house. The Tribunal asked why her parents moved and she said she didn’t know.

22. The Tribunal asked if there was any other basis on which she feared harm on returning to Malaysia and she said she was scared to start over with her family because she is worried he [[Mr A]] would come looking for her.

23. The applicant raised a claim to fear harm due to having been the subject of a sexual assault by a former neighbour prior to coming to Australia. While the applicant did not offer any evidence to corroborate this claim, based on her testimony and on the evidence before it, the Tribunal is prepared to accept the applicant was the victim of a sexual assault by a former neighbour as claimed, sometime in around 2016. The Tribunal accepts this experience was traumatic. The Tribunal accepts that because of that experience the applicant is genuinely fearful of returning to Malaysia due to what she perceives to be a risk of encountering the perpetrator again due to his connection with her parents.

24. The Tribunal also accepts that her account is generally consistent with country information regarding the challenges facing women who suffer gender-based violence in Malaysia.

25. However, for reasons discussed with the applicant at the hearing, the Tribunal does not consider her fears to be well-founded or that there is any real chance of harm from the perpetrator of the attack on her return to Malaysia.

26. In this regard the Tribunal finds that:

    ·The applicant’s personal circumstances have changed since she left Malaysia. She is now married with a child. She intends to live with her husband and child on return to Malaysia and would not be living with her parents;

    ·The applicant’s parents no longer live next door to the perpetrator and while her brother remains living in that home there would be no reason for the applicant to attend that house, or her parents’ new home, if she was uncomfortable doing so;

    ·The assault occurred in 2016 and the applicant has had no contact from or with the perpetrator since at least late 2017 after arriving in Australia;

    ·In any event, the Tribunal finds that there is no real chance that were the applicant to visit her parents’ home or her brother’s home she would be harmed having regard to her changed personal circumstances and the protections available to her from authorities in Malaysia;

    ·The applicant has not sought or received any treatment in relation to unresolved feelings of distress arising from the incident but indicates she would consider doing so;

    ·The applicant has not sought assistance from authorities in Malaysia with respect to the assault but accepted it would be open to her to do so;

    ·The applicant and her husband have support available to them while they re-establish themselves from her husband’s family.

27. The Tribunal considers that even if the perpetrator were to discover that the applicant had returned to Malaysia, which on the evidence the Tribunal does not accept he would, the changes in her personal circumstances in the time which has passed since the assault would reduce the risk of any serious or significant harm from the perpetrator to less than a real risk having regard to the to the applicant’s current circumstances and from the protections available from the authorities.

28. The applicant did not claim and the Tribunal does not consider that she would face any real chance of serious harm from her family in Malaysia due to the assault. Similarly, while she expressed a concern that her husband may reject her were he to find out about it, she did not make any claim that he would seriously harm her as a result of this and there is no information before the Tribunal to suggest that he would.  The Tribunal considers on the evidence there is no real chance of the applicant being harmed by her family, including her husband, due to having been a victim of sexual assault.

1. Further, and in any event, there must be a refugee nexus between the claimed harm and the real chance of persecution being faced by the applicant now or in the reasonably foreseeable future. On the evidence the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on return to Malaysia on the basis that she was previously sexually assaulted by a neighbour. The applicant did not identify how the assault or any further harm she feared from [Mr A] would be a consequence of, or would give rise to, persecution for a reason provided for in s 5J of the Act, nor did her evidence provide a basis for such a finding.

2. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on return to Malaysia for the reason of having been a victim of sexual assault as claimed.

3. For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to Malaysia on the basis of having been the victim of sexual assault by a former neighbour of her parents in Malaysia.

4. 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]).

5. In this regard the Tribunal notes it earlier findings that the risk [Mr A] would pursue the applicant on return to Malaysia, and that she would suffer harm at his hands in the form of a further assault against her is less than a real risk having regard to her current circumstances and protections available to her from the authorities.

6. Noting the findings the Tribunal has already detailed relating to the applicant’s claims based on having been sexually assaulted by her parent’s neighbour, it follows that the Tribunal is not satisfied that 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 that she will suffer significant harm on that basis now or in the reasonably foreseeable future in Malaysia.

7. While the Tribunal does not accept the applicant faces a real chance or real risk of serious or significant harm from the perpetrator of the assault on her return to Malaysia now or in the reasonably foreseeable future, in light of the applicant’s evidence, the Tribunal has considered whether the applicant’s claim that she would suffer trauma as a result of her return to Malaysia would give rise to any claim for protection.

8. Given the evidence, the Tribunal accepts that the applicant may feel some distress on return to Malaysia based on her experiences. There is no evidence to suggest she is suffering from any diagnosed clinical condition. While the Tribunal accepts the applicant may suffer emotionally on return to Malaysia, the Tribunal does not accept those circumstances give rise to any claim for protection.

9. As noted above, there must be a refugee nexus between the claimed harm and the real chance of persecution being faced by the applicant now or in the reasonably foreseeable future. On the evidence the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on return to Malaysia for the reason she may experience trauma due to having been a victim of sexual assault.

10. The applicant has not identified any ground in s 5J(1) which would be the essential and significant reason for any harm caused to her by her return to Malaysia, for the purposes of s 36(2)(a) of the Act. The Tribunal finds she does not have a well-founded fear of persecution on that basis. The Tribunal finds that there is no real chance of persecution faced by the applicant now or in the reasonably foreseeable future for the essential and significant reason of any ground in s 5J(1), arising from harm caused to her by her feelings of trauma if she was returned to Malaysia, for the purposes of s 36(2)(a) of the Act.

11. Similarly with respect to complementary protection, in GLD18 v Minister for Home Affairs,[10] the Full Court confirmed the principles in CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089 that ‘significant harm’ does not include self-harm or harm the applicant suffers arising from mental illness where such harm arises by reason of the applicant’s removal to their home country and not due to harm intentionally inflicted on an applicant by ‘others’.[11]

    [10] At [88]–[89].

    [11] See also FMN17 v MICMSMA [2020] FCA 326.

12. As noted by the Full Court in GLD18 v Minister for Home Affairs:[12]

    The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will. 

    [12] [2020] FCFCA 2 at [50] per Allsop CJ and Mortimer J.

13. For the reasons set out above, whilst the Tribunal accepts the applicant does not wish to return to Malaysia due to the trauma she suffered it does not accept that she is owed complementary protection on this basis.

    Economic disadvantage

14. While the applicant did not raise a specific claim to fear harm on the basis of suffering economic disadvantage in Malaysia, the joint statement submitted by the applicant in support of her husband’s application, and discussed with the applicant at the hearing, stated that her parents earned sufficient income to provide for themselves and her [siblings] but were struggling financially. She and her husband help to support them financially. She came to Australia because of the opportunities. She has struggled financially since she was young and she has limited education so she came to Australia. She is grateful that in Australia she can earn a much better salary than in Malaysia. They are helping each other financially and mentally to grow their small family and help their family in Malaysia. If they were both still in Malaysia their lives would be very different to what they are now. They are blessed to be in Australia and would love to continue living here with their son and will always try and do their best.

15. At the hearing, when invited to raise any additional fears on return to Malaysia the applicant raised a general concern about how her family would re-establish themselves there. She did not raise any specific issues regarding the prevailing economic circumstances in Malaysia.

16. During the hearing the Tribunal put to the applicant that based on the evidence it seemed reasonable to conclude that they would be able to resettle in Malaysia and that they would have family support there, including from her husband’s family if she did not wish to live with her parents. She said that she didn’t want to live with her in-laws but accepted it was an option open to them.

17. For the avoidance of doubt, the Tribunal notes that, absent other considerations, economic circumstances prevailing in a country are circumstances impacting the population of a country generally and lack the degree of particularity required to give rise to protection obligations under the refugee or complementary protection criteria. The applicant has not provided any evidence regarding her personal circumstances which would satisfy the Tribunal that her particular circumstances would lead her to face a real chance or real risk of serious or significant harm on return to Malaysia for reasons of the prevailing ‘political and economic’ circumstances in that country.

18. The Tribunal accepts the applicant’s evidence with respect to her concerns about re-establishing herself with her husband and son in Malaysia; however, as the applicant has indicated, she and her husband have experience working in a variety of jobs in Australia including factory work.

19. There is no information before the Tribunal with respect to the prevailing economic or political circumstances in Malaysia which would suggest that the harm the applicant would be subjected to with respect to those factors mentioned in s 5J(1)(a) of the Act would arise. In particular, she has not raised any claim that she would suffer harm by reason of race, religion, nationality, membership of a particular social group or political opinion in the context of the prevailing economic circumstances in Malaysia, as compared with Australia.

20. Further, the Tribunal refers specifically to s 5J of the Act relating to a well-founded fear of persecution in a country, particularly the requirement that the persecution must involve systematic and discriminatory conduct. Generalised economic circumstances in a country do not meet the requirements of systematic and discriminatory conduct in the absence of other considerations and do not constitute persecution or discrimination within the meaning of s 5J(4).

21. Accordingly, and having regard to the applicant’s individual and family circumstances and the country information regarding the economic circumstances in Malaysia, the Tribunal finds that the applicant would not face a real chance of serious harm on return to Malaysia now or in the reasonably foreseeable future on the basis of relatively poorer economic circumstances on return to Malaysia.

22. While the Tribunal accepts the applicant would have to resettle in Malaysia, and find employment, and may have less disposable income available to her if she returned to Malaysia, the Tribunal is not satisfied that she faces a real chance of suffering persecution involving serious harm for one or more of the five reasons mentioned in s 5J(1)(a) of the Act on this basis.

23. As the Tribunal finds the applicant is not owed protection under s 36(2)(a), the Tribunal has considered the applicant’s claims under s 36(2)(aa), the complementary protection ground.

24. For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to Malaysia on the basis of prevailing economic circumstances in Malaysia. 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. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J.

25. Noting the findings the Tribunal has already detailed relating to the applicant’s claims, it follows that the Tribunal is not satisfied that 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 that she will suffer significant harm now or in the reasonably foreseeable future in Malaysia due to her economic circumstances in that country.

    Husband’s and son’s circumstances

26. The applicant did not claim to fear harm on the basis of her husband’s or son’s circumstances at the hearing before the Tribunal.

27. In any event there was no information before the Tribunal suggesting the applicant faced a real chance of serious or significant harm on return based on her association with her husband, including in relation to any debts owed by her mother-in-law.

28. As noted above, mindful of its obligations under s 424AA of the Act the Tribunal wrote to the applicant to put to the applicant adverse information indicating that the decision not to grant her husband a protection visa had been affirmed on the basis the Tribunal was not satisfied he is a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.

29. The applicant was invited to comment on this information but indicated she had nothing to say in response.

100.   Having regard to the information and evidence before the Tribunal, the Tribunal finds the applicant does not face a real chance of serious or significant harm for any reason due to her association with her husband on return to Malaysia.

101.   She indicated she did not have any fears for her son on return to Malaysia and there was no information before the Tribunal to suggest any claims may arise with respect to him.

CONCLUSION

102.   The Tribunal has found the applicant’s claims to fear serious or significant harm on the basis of having been a victim of sexual assault while credible, are not well-founded.

103.   The Tribunal is not satisfied the applicant faces a real chance of serious harm on the basis of having been sexually assaulted by a former neighbour, due to the trauma this has caused her or that would be caused by returning to Malaysia, due to the prevailing economic circumstances in Malaysia or on the basis of any circumstances relating to her husband and son.

104.   The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that the applicant would face a real chance of serious harm now or in the reasonably foreseeable future if she returned to Malaysia for any of the reasons claimed. Taking the applicant’s claims individually and cumulatively at their highest they do not meet the required thresholds under either the refugee or complementary protection assessment criteria.

105.   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).

106.   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).

107.   As put to the applicant at the hearing, on the information before the Tribunal the applicant’s husband has been found not to satisfy s 36(2)(a) or (aa) and does not hold a protection visa. Her son is not an applicant for a visa.

1. Accordingly, there is no information before the Tribunal 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 any of the criteria in s 36(2).

   DECISION

109.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Simone Burford
Senior 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.

…