1801796 (Refugee)

1801796 (Refugee) [2024] AATA 4328 (19 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801796
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Noonan
DATE:19 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 August 2024 at 4:32pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – ethnic Chinese – new claims – sexuality – bisexual – debt to illegal moneylenders – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 Home Affairs on 22 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). He arrived in Australia [in] March 2016 using a UD‑601 Electronic Travel Authority tourist visa.
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 15 August 2017. He was an unlawful non-citizen within Australia between 27 June 2016 and 15 August 2017. The delegate refused to grant the visa on the basis that he could obtain protection from the Malaysia authorities such that there is not a real chance of serious harm or a real risk of significant harm and as such he did not qualify for protection.
The applicant appeared before the Tribunal on 1 August 2024 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The applicant supplied a copy of the delegate’s decision to the Tribunal. He was not offered an interview by the delegate.
Country of nationality
The delegate was satisfied that the applicant’s country of nationality is Malaysia and the Tribunal is also satisfied that this is the case on the basis of the biodata with respect to his Malaysian passport, a copy of which is retained on the Department’s systems and file, and accordingly has assessed his claims with respect to Malaysia as the country of reference or receiving country for the purposes of this appeal.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his original claim for protection, which he signed and dated 14 August 2017, the applicant stated that he had not received any assistance in completing the claim form. He stated that he was born in [year] in Penang, Malaysia. He stated that he is ethnically Chinese Malaysian and his religion is Buddhism. He stated that he is married. He did not list any other family members in either Australia or Malaysia.
In his written claim the applicant provided little detail; however, he attached a handwritten submission to the claim form. In this submission he stated (in summary) that he left Malaysia because of discrimination against Chinese Malaysians.
The applicant made no written submission or submissions of evidence to the Tribunal prior to the hearing.
At the commencement of the Tribunal hearing the applicant stated that he is divorced and his ex-wife lives in Malaysia with their son. He has two sons. One of them is now married to an [Country 1] girl and the other son works in a factory in Penang. In Malaysia he worked for a long time in [Industry 1] in paid employment. He confirmed that he is Chinese Malaysian and a Buddhist. He stated that he has no reason to repatriate money back to Malaysia.
The applicant informed the Tribunal that he now wished to add further claims for protection to his original claim. He informed the Tribunal that he also fears persecution in Malaysia because of his sexuality and because he owes money to illegal moneylenders.
Discrimination against Chinese Malaysians
The Tribunal accepts that the applicant is of Chinese Malaysian ethnicity.
The applicant submitted that Chinese Malaysians are not treated well by the Malaysian authorities. For instance, he stated that his father asked for cheap housing from the authorities for many years but it was not given and the family had to stay in a small house. He added that the politicians say that Chinese Malaysians should go back to China. In 1969 when he was [age] there was a riot where he saw people being killed due to ethnic tensions and this was covered up. He is afraid this might happen again. He is afraid the law may also be changed to Sharia law and he will be forced to follow it. He submitted that he has been treated badly by the Malay people because of his ethnicity. He has been abused while driving his car and spat at due to his ethnicity.
The Tribunal put to the applicant that DFAT assesses that currently Chinese Malaysians comprise approximately 22.8 per cent of the population in Malaysia. They are prominent in politics and successful in private commerce. There is some discrimination against Chinese Malaysians, for instance the Chinese school curriculum is not recognised for the purposes of higher education entry. Overall DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector.[1]
[1] Ibid, p. 15–16.
The Tribunal discussed with the applicant that the fact that a person experiences some level of discrimination, or a particular right is denied, is not necessarily enough to establish persecution. The Tribunal put to the applicant that, under s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The Tribunal discussed with the applicant that, while he has given some evidence of ethnically charged insults and discrimination with respect to housing in the past, it must assess what the real chance of serious harm to him is in the future and he has not given any evidence of assault or other serious harm for this reason. He has also long been gainfully employed in Malaysia, which may indicate he has not been denied a right to earn a livelihood by the low levels of discrimination prevalent in Malaysia and would not be denied a right to subsist for any reason should he return to Malaysia in the future.
On the evidence before it, the Tribunal is not satisfied the applicant has been denied basic services or the capacity to earn a living of any kind or suffered economic hardship such as would threaten his capacity to subsist. His claim to fear an imposition of Sharia law upon non-Muslims and the resumption of race riots last experienced in the 1960s is entirely speculative as there is no indication in country information or recent country history that either eventually is even a remote possibility. The Tribunal notes that the list of instances of serious harm in s 5J(5) is not exhaustive; however, it does not accept there to be a real chance that the applicant will be subjected to ‘serious harm’ for the purposes of s 5J(5) for reasons of his Chinese ethnicity if he returns to Malaysia now or in the foreseeable future. It follows that the Tribunal does not accept that he meets the criteria set out in s 5J(4)(b).
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether 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 he will suffer significant harm for reason of his Chinese Malaysian ethnicity.
‘Significant harm’ is exclusively defined in s 36(2A) as follows:
(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.
The Tribunal set out the definition of significant harm to the applicant. The applicant merely reiterated his past discrimination as set out earlier in these reasons. The Tribunal notes that, while it may accept that Malaysian nationals of Chinese ethnicity are subjected to a level of discrimination in Malaysia as a result of preferential government treatment for ethnic Malays, particularly in relation to access to tertiary education and employment in Malaysia’s civil service, the applicant has not suggested that any person or group will seek to arbitrarily deprive him of his life or subject him to torture, nor that the death penalty would be carried out on him for reason of his Chinese Malaysian ethnicity.
The Tribunal does not accept there to be a real risk the applicant will be subjected to discrimination rising to the level of cruel or inhuman treatment or punishment or degrading treatment or punishment as those terms are defined in the Act for reason of his Chinese Malaysian ethnicity. It follows that the Tribunal does not accept there to be substantial grounds for believing that there is a real risk the applicant will be subjected to significant harm, as that term is exclusively defined in s 36(2A), as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
Newly introduced claims
The Tribunal discussed with the applicant that it must consider the credibility of these newly introduced claims and is also required to consider these claims within the context of s 423A of the Act.
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[2] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[2] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it 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 (see MIMA v Rajalingam (1999) 93 FCR 220).
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 (see 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).
When concerns were put to the applicant under s 423A the applicant claimed in the first instance that he had in fact received assistance and this was why all of his claims had not been made out. The Tribunal is unconvinced by this claim. This is because the applicant attached handwritten claims to his claim form in which he clearly wrote in the first person. Further he declared that he had completed the claim form without assistance and signed and dated the form. The Tribunal places significant weight on this contemporaneous evidence and finds that the applicant completed his original protection claim form himself.
The applicant’s sexuality
The applicant introduced a new claim that he is bisexual and fears persecution in Malaysia for this reason. The Tribunal does not accept this claim as credible for the following reasons:
·Firstly, the applicant stated that he had been divorced for some time prior to coming to Australia and had been visiting gay bars in Penang. The Tribunal put to the applicant that in his 2017 protection claim form he stated that he was still married and had not disclosed that he was divorced. The applicant simply stated that the person who had filled out his form was incorrect. The Tribunal has not accepted that the applicant received assistance in filling out his claim form. As such the Tribunal places significant weight upon the applicant’s declaration that he was legally married to a woman in 2017. The Tribunal finds that the applicant has given internally inconsistent evidence with respect to his married status which causes the Tribunal to doubt the credibility of his new claim to have been divorced and frequenting gay bars in Penang prior to coming to Australia.
·Secondly, when asked about his activities in Australia with respect to his sexuality, the applicant stated that he had been in one same‑sex relationship and proceeded to give highly implausible and internally inconsistent evidence about this relationship. Despite claiming to have been in a committed relationship with a man named [Mr A] for two years, and to still occasionally be seeing [Mr A] now, he could not remember [Mr A]’s surname. Nor could he produce any record of communicating with [Mr A] or photos of [Mr A]. When it was put to the applicant that it may appear highly implausible that he could not produce any evidence of [Mr A]’s existence the applicant gave a flimsy explanation that his phone had broken. He was unable to satisfactorily explain how a broken phone would preclude him from accessing email and social media records. He then contradicted himself, variously claiming that he did and did not communicate by social media with [Mr A]. With respect to his inability to remember [Mr A]’s surname he also gave a flimsy and implausible explanation that he had not actually lived with [Mr A]. The Tribunal does not accept as reasonably plausible that the applicant would have no evidence of [Mr A], no records of communicating with him or not know his surname if he had been in a relationship of several years with him. The Tribunal does not accept that the applicant has been in a same‑sex relationship with a man named [Mr A] and considers that he has invented [Mr A] for the sole purpose of trying to strengthen his new claim to be bisexual. The Tribunal considers that this fabrication of a same‑sex partner severely undermines the applicant’s credibility with respect to his claim to be bisexual.
·Thirdly, the Tribunal is required to draw an inference unfavourable to the claim because it was not raised before the primary decision was made:
oWhen this omission was discussed with the applicant, within the context of this claim he proceeded to give shifting and contradictory evidence that, in the first instance, he had in fact not told this claim to the person who he claimed assisted him in completing the form due to embarrassment. The Tribunal rejects this explanation as it has found that the applicant completed his claim form himself. When these concerns were discussed with the applicant he then purported that he had not made out this claim because he was afraid the Malaysian authorities would find out that he has made a claim to be bisexual because of the need to renew his passport and they would investigate his protection claims during this process.
oThe Tribunal noted that DFAT assesses that the Malaysian authorities generally pay little attention to Malaysians who overstay their work or tourist visas, or who breach visa conditions in other countries, upon their return to Malaysia. Likewise, failed asylum seekers rarely face adverse attention, as the Malaysian Government is usually unaware that someone is a failed asylum seeker, although it is possible some failed asylum seekers could face questioning on return, particularly if their passport expired while abroad.[3] The Tribunal discussed with the applicant that this information indicates that the Malaysian authorities are not monitoring asylum claims overseas or what Malaysian citizens are doing overseas in general. The applicant responded that a friend had told him this was the case. The Tribunal also noted that, at the time of his claim, the applicant had several years left on his Malaysian passport.
oThe Tribunal also rejects the applicant’s later contradictory explanation as to why his claim to be bisexual was omitted from his original claims. This is because he originally claimed that the person assisting him had not written the claim down. He then contradicted this by stating that he had been afraid to do so because of his passport renewal process and also because he had been embarrassed. As discussed at hearing the Tribunal would expect that an applicant for protection who genuinely feared persecution for reason of their sexuality would seek to make that claim out. Country information does not support that the Malaysian authorities monitor Malaysians overseas or ever become adversely interested in their asylum claims made while overseas. Further, the applicant’s passport had many years left before expiry and the Tribunal does not accept that a desire to renew this passport in the future is a plausible explanation for withholding this claim. Overall, the Tribunal does not accept that the applicant has given a reasonable explanation for omitting this claim before the primary decision was made and accordingly draws an inference unfavourable to the claim as per s 423A.
[3] DFAT Country Information Report, 24 June 2024, p. 45–46.

In conclusion, the Tribunal finds that the applicant is not a witness of truth with respect to his claim to be bisexual. He has given significantly internally inconsistent, implausible and vague evidence with respect to this claim and he has also not satisfactorily explained why the claim was not made out before the original decision was made. As such the Tribunal rejects this claim in its entirety as not credible.
The Tribunal finds that the applicant does not face a real chance of serious harm for reason of his sexuality on return to Malaysia now or in the reasonably foreseeable future. His fear of persecution on this basis is not well founded.
Debts
The applicant also introduced a new claim to owe money to illegal moneylenders in Malaysia. The Tribunal has concerns about the veracity of the applicant’s claim to have borrowed money from illegal moneylenders and to have received threats when he failed to repay them for the following reasons.
Firstly, he did not raise this claim before the primary decision was made. The Tribunal would expect that if the applicant feared harm from illegal moneylenders, he would have made this claim out at the first opportunity. Again he contradicted himself by variously claiming he had not made the claim out and another person had omitted the claim. The Tribunal is not satisfied that the applicant has provided a reasonable explanation as to why he did not raise this claim before the primary decision was made and accordingly the Tribunal is required to draw an inference unfavourable to the claim under s 423A.
Secondly, the applicant’s oral evidence to the Tribunal about his reason for borrowing the money and his reasons for not being able to pay it back were vague, internally inconsistent and unconvincing. For instance, he claimed that he borrowed money to start a business, but he had declared in his claim form that he had been in paid employment in logistics in Malaysia up until coming to Australia. When this contradiction was put to him the applicant stated that he had tried to set up a business but had not actually done so. When asked later why he could not repay the money he then claimed he had been forced to employ local Malay people who were not good workers, which directly contradicted his evidence that he had unsuccessfully tried to start a business.
Thirdly, the applicant’s oral evidence to the Tribunal about the moneylenders or about threats he has received as a result of his outstanding debts was vague, internally inconsistent and unconvincing. For instance, he was unable to provide any particular details about the moneylenders he purportedly borrowed money from such as names, amounts borrowed and the terms for repayment, which he vaguely stated did not require repayment by any particular time. When asked when he first started having trouble repaying the loans he stated that it was in 2014 and he made a police report after being threatened. The police did not do anything and he does not have a copy of the police report. He was then threatened further by the lenders. The Tribunal noted that despite this he stayed at his house and did not move to Australia until 2016. The applicant then contradicted his earlier evidence of harm and stated that in fact he had first been threatened with harm in late 2015, and he had then decided to come to Australia for his safety.
For these reasons the Tribunal has serious credibility concerns about this claim to owe money to illegal moneylenders. In addition, the Tribunal has already found the applicant to not be a witness of truth with respect to his sexuality claim. The Tribunal does not accept that the applicant borrowed money from illegal moneylenders in the past or has outstanding debts to them or anyone. It does not accept that he was threatened or that his house was splashed with red paint when he failed to repay purported debts.
The Tribunal finds that the applicant does not face a real chance of serious harm from illegal moneylenders for any reason on return to Malaysia now or in the reasonably foreseeable future. His fear of persecution on this basis is not well founded.
Complementary protection – new claims
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
For the reasons set out above, the Tribunal has found there is not a real chance the applicant will suffer serious harm for reason of his sexuality or from illegal moneylenders if he returns to Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that 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.[4] The Tribunal notes that this applies equally to the assessment of ‘well‑founded fear’ for the purposes of s 5J. It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia for reason of his sexuality or from illegal moneylenders or anyone else for any reason claimed or that arises on the material before it.
[4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
Member

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

[2024] AATA 4328

19 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies