1809788 (Refugee)

1809788 (Refugee) [2024] AATA 3035 (29 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1809788
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Hollie Kerwin
DATE:29 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 April 2024 at 1:25pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – sold explosives supplied by gang – chased and threatened by gang after reporting them to police – stay in another country, multiple short visits to Australia, return to home country and further threat – last entry to Australia and application for protection – vague claims and evidence – not necessary to consider similarity of claims to another previous application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 6 February 2018. The delegate refused to grant the visa on the basis that the harm he claimed to fear was not for a reason that would meet the refugee criteria, being not for a reason of race, religion, nationality, membership of a particular social group or political opinion. The delegate also refused to grant the visa because they concluded the applicant did not meet the complementary protection criteria, finding that the applicant would not be at real risk of significant harm because he could obtain protection from the Malaysian authorities against any risk he faced from gangs.
The applicant appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
For the reasons that follow, the decision under review should be affirmed.
BACKGROUND
The applicant was born in [Month Year] and, on his evidence, he lived during his childhood in a range of homes in Sabah with his grandmother in Malaysia. His parents were not a part of his childhood except possibly when he was a baby. On his evidence, he does not have any siblings and his grandmother passed away in 2021.
During his childhood, the applicant explained that he moved around and sometimes returned to his village, in [District] in Sabah. His evidence was that in approximately 2013 or 2014 he moved to Kuala Lumpur, having followed a friend there. His evidence was that he completed secondary education.
On the applicant’s evidence, in Kuala Lumpur, he was employed moving [goods] from one place to another as part of [an] industry. This was a job he said he followed his friend into and he did it only when his friend took him to work. His evidence was that other than this work, he sold explosives in Sabah and Kuala Lumpur. While initially the applicant explained that he just sold the explosives himself, he later gave evidence that he sold the explosives supplied by a gang. This gang and the explosives are central to his claims and are detailed further below.
The applicant made the application for protection in February 2018. Prior to this, from June 2017 to October 2017 the applicant made multiple trips to Australia for short periods, such as a day, each time flying into Australia from [Country] before flying out to [Country] again. The Applicant’s evidence was that he did not work in [Country] in this time. The Applicant’s evidence was also that he returned to Malaysia in October 2017. He returned to Australia for the last time in December 2017, and his evidence was that he had worked as [an occupation] since then in different locations near Melbourne.
The applicant made a protection visa application in February 2018.
CLAIMS AND EVIDENCE
Before the delegate
The delegate refused to grant the protection visa in April 2018. The reasons for the delegate’s decision are summarised above at paragraph ‎2.
The delegate’s decision was determined without a hearing, and with reference to the claims included in the protection visa application made by the applicant. The applicant explained at the Tribunal hearing that a friend of a friend has helped him to complete his protection visa application. The claims in the application are that:
·He left Malaysia because he was being chased by a black syndicate who were after him because he reported one of their activities which was importing explosives.
·This report had caused several of the group members to be caught but there are still lots of them out there. They want to have revenge on him for the losses and problems caused by his report, that ruined their business. He therefore doesn’t feel safe in Malaysia anymore.
·He did not try to move to another part of the country because his case involved a massive group of gangsters, including people like murderers and thieves. Moving from one place to another would make him worry because the gang members are everywhere and he can’t recognise a single one of them.
·If he goes back to Malaysia he strongly believes the gang members will hunt him down and maybe he will be killed because of the action he made which caused a big loss to their business.
·He is in danger because the case is new, having happened in 2017 and is still under investigation.
·The police will be unable to help him because most of them are people from a different age group which makes him think this is not the right time for him to return to Malaysia.
Before the Tribunal
The applicant attended a hearing before the Tribunal in March 2024. He called no witnesses. Prior to the hearing, in response to outreach by the Tribunal in anticipation of his application before constituted to a Member, the applicant provided a written answer that:
·He feels unsafe returning to his country. He is being chased by someone he doesn’t even know.
·He doesn’t have any protection by police and fears he will be killed.
No other written evidence was provided to the Tribunal before the hearing.
At the hearing, the applicant gave further evidence about his claims. Where it is relevant I discuss it further below but in summary this evidence was that:
a.He had sold explosives in Sabah and later in Kuala Lumpur. While he initially described just selling explosives in Sabah for himself, he later stated that he sold them in both Sabah and Kuala Lumpur and did so for an unnamed gang. He did not know the names of the people involved except for one person whose name was ‘[Name]’.
b.At some (unspecified) point, he decided he didn’t want to sell explosives anymore because he wanted to have a Halal job. The gang wanted him to continue to and were trying to force him to. Towards the end of 2016 (either September, October, November or December), he ultimately made a police report in Sabah in which he disclosed two things: that there was a gang selling explosives; that a person that he knew as being named ‘[Name]’ was involved.
c.The gang had threatened to kill him in 2017 (the first threat). The applicant could not initially provide a more specific time in 2017 because at that time he said he was running away and ‘all over the place’. While he didn’t know the people involved, he thought they were or could be associated with the person named [Name]. In later evidence, the applicant said that the people who were connected with [Name] were initially very very nice, but after he had made the police report ‘then they brought weapons with them’. He ultimately placed this event in early 2017.
d.In or about the beginning of 2017, he went into hiding in Kota Kinabalu in Sabah. Wherever he travelled he had to hide. The applicant gave evidence at one point in the hearing that ‘some people’ had been involved in him going into hiding and ‘initially they took me to a place to hide’.
In respect of (d) immediately above, the applicant’s evidence on the point was not detailed about the circumstances of this period of hiding, despite the Tribunal providing further opportunities in the hearing for him to provide more detail. However, at one point in his evidence, depending on how it is viewed in context, it is possible that he was identifying that unidentified members of the gang or people associated with the gang, took him to a place in Kota Kinabalu to hide. I note, in this connection, that during the hearing I expressly checked and confirmed whether the applicant was having any issues with the interpreter at all and he confirmed he was not. For the purpose of considering his claims, I have therefore considered both alternatives – that either people associated with the gang initially assisted him to go into hiding; and that the gang members were not involved in taking him to his place or places of hiding.
e.After that he went to [Country], in June 2017. He went to [Country] because he thought the gangsters would not be able to find him there. He was there until October 2017. After that, he returned to Malaysia because he thought the situation was ‘a lot better’.
f.The gang had threatened him again by breaking into his grandmother’s house in 2017 once he had returned to Malaysia. His grandmother was not there and he had fled that place. He did not know who had broken in. The person/s who broke in left cleaver marks on the door and the walls. He made a police report and the police attended but spent only a brief time at the house and then left (the second threat).
g.The gang will still be looking for him because they seek revenge. But, he has not heard from them since he has travelled to Australia this time. Everything has been ‘fine and peaceful’ since he came to Australia.
In addition, on 25 March 2024 and as foreshadowed to the applicant during the Tribunal hearing, the Tribunal sent to him a letter and document under s 424A of the Act. It sought his comment on the following (in summary):
a.That the Tribunal was aware of one other case determined by the Tribunal where very similar written claims were advanced in a protection visa application. This other matter has been determined and the relevant protection visa application in that case was lodged in January 2018, which is earlier in time than the applicant’s had been. At the hearing in that other case, the applicant gave evidence that these claims were untrue. In these circumstances, this issue may be part of the reason or reason for the Tribunal concluding that he did not meet the criteria for a protection visa on the basis that these written claims and the related oral evidence he gave at the hearing were not reflective of his personal experiences and that that his protection claims were not genuine.
b.That the Tribunal was aware of his movements in and out of Australia throughout 2017. In these circumstances, as discussed at the hearing, the Tribunal may consider that his pattern of travel as disclosed in the applicant’s movement records, which were supplied to the applicant under cover of the 25 March letter, indicate that was not in danger throughout 2017. The letter explained that this is because normally, but not always, a person who fears returning to their home country might be expected to seek protection in another country from the harm they fear in their home country at the first available opportunity. The particulars provided to the applicant of the information disclosed that he had entered Australia multiple times in 2017, had not stayed or sought protection. The Tribunal indicated this may be a part of the reason for concluding that he did not meet the visa criteria.
The Applicant responded within the statutory time period. His response was as follows:
I plan to stay in Australia for a long time, it would be better if I could stay here forever. It is because the experience I had when the group wanted to kill me is still fresh. I feel safer living in Australia. All the reason I explained are true and should not be taken lightly.
How bad I is when I am returned to my country of origin, it is like I just sent myself to accept my death.
That’s all from me, I really hope to the Australian government so that I can stay longer here.
Thank you.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for a protection visa under either the refugee criterion or the complementary protection criterion set out above. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country of reference
I accept that the applicant is a citizen of Malaysia, and that he was born in Sabah in [Month Year]. His passport indicates this and I am not aware of any evidence to suggest otherwise. Accordingly, I have considered his claims against Malaysia as the country of reference and receiving country.
Findings
I accept that the applicant:
a.Lived in Sabah, with his grandmother, during his childhood and until he moved to Kuala Lumpur in about 2013.
b.During some period in his life, he worked moving [goods] as part of [an industry].
c.His grandmother passed away in 2021.
d.He spent from June to October 2017 moving between Australia and [Country]. He did not make a protection visa application in this time.
e.In about October 2017, the applicant returned to Malaysia.
f.In December 2017, the applicant travelled from Malaysia to Australia.
g.In February 2018, the applicant applied for a protection visa in Australia.
I do not accept that applicant’s core claims. I explain why below.
Police report regarding explosives
I do not accept that the applicant made a report to the police about a gang importing explosives, selling explosives or forcing him to sell explosives.
The applicant’s evidence about this police reporting was vague, brief and lacked sufficient detail for me to be satisfied that it occurred. The applicant was not able to describe the event of giving this police report in any more detail than that he made a police report in the State of Sabah to the effect that someone named [Name] and their associates were selling explosives. He said that he reported the gang because he did not want to sell explosives anymore.
Despite further opportunities to elaborate, raising my concern about the level of detail, and my invitation in the hearing to provide any further detail, the applicant did not explain further. When I raised this issue with him at the hearing, to ensure that he had an opportunity to comment on it or address the issue, he responded that he did not know the names or identify of any of the gang members. I have taken this into account in my assessment of the applicant’s evidence, but ultimately it does not address the lack of detail in the applicant’s evidence about making the report generally. For the reasons set out above, I do not accept the applicant made a police report as he claimed.
First threat from unknown gang members in 2017
I do not accept that there was a threat made by any gang to kill the applicant in or about 2017, before his history of travel to Australia began. The applicant’s evidence about this was also vague and continued to be vague despite my giving the applicant opportunities in the hearing to elaborate or provide further detail about the event. He did not give detail to the Tribunal, for example, about the words that were used in the threat or what the unknown gang members said (or that the applicant said) during the event.
Further, in 2017, the applicant’s travel history indicates that he travelled to and from Australia five times without making any protection visa application. On the applicant’s evidence this travel occurred after the first threat on his life was made. Each time he appears to have flown into Australia from [Country]. The applicant also gave evidence at the hearing that after this travel, in October 2017, he returned to Malaysia and stayed in Malaysia until his return to Australia in late December 2017. The applicant then did not make a protection visa application until 6 February 2018.
The vagueness of his evidence about the first threat in 2017, the pattern of travel, and the applicant’s delay in making any claim for protection at any time in his prior visits to Australia or shortly after his arrival in December 2017, suggest strongly that the applicant was not in danger and his life had not been threatened in 2017.

In considering this evidence I have taken into account the applicant’s responses when I raised this issue with him at hearing being that:
a.his travel to [Country] was motivated by wanting to seek safety there because the gang could not reach him; and
b.that his return to Malaysia in October occurred because he thought things would have improved and he had tried to stay.
I have also taken into account his response to the s 424A invitation on this point. This response is extracted above at paragraph ‎16.
Ultimately, these responses do not overcome my concerns about his pattern of conduct during 2017, that in the period he says he was seeking safety in [Country] he did not make any protection claim in Australia despite visiting multiple times, combined with the lack of detail and vagueness of his evidence. I also unpersuaded by the explanation the applicant provided that in October 2017 he thought things would have improved in Malaysia mere months after fleeing in the context of having informed on a connected crime syndicate, who were aware he had done so, and had threatened his life earlier that year.
I am not satisfied that the first threat was made and I do not find that it was.
Selling explosives
For completeness, I confirm I have also considered the applicant’s claims that he sold explosives. The applicant did not expand on this evidence in the hearing, for example by explaining in what particular locations (other than just Sabah and Kuala Lumpur), to whom, or how he went about this work. He did not talk about any of the aspects of this work during the hearing except to assert that he did it and no longer wanted to do it, despite selling explosives being core to the applicant’s claims and of significance, on his evidence, to his life direction, as well as a job he did in two different locations. He did not detail the process by which he decided to stop selling explosives. He did not explain how he communicated that decision to the gang.
In light of the above matters and in the absence of any further evidence to substantiate the claim I do not accept that it occurred.
Going into hiding
I do not accept that the applicant went into hiding at some point in 2017 and before he left for Australia. In light of the findings I have made above, specifically that the applicant did not sell explosives, did not make a police report, and that the first threat did not occur, I am not satisfied that the applicant went into hiding in 2017 as a consequence of any of these events.
In considering this aspect of the applicant’s claims I have turned my mind (as foreshadowed above at ‎14. d) to the two potential versions of this period of hiding in the applicant’s evidence. That is, that he was hiding in at least one place after having been assisted by members of the gang, or that there was no involvement by the gang members in taking him to a place of hiding. However, as explained above, I have ultimately concluded that the applicant was not in hiding at all. Whether there was claimed to be any involvement by members of the gang in his hiding or not are not matters that overcome or otherwise change my assessment of the facts and findings regarding the claim (or integer) of being in hiding, in the circumstances of this case.
Second threat in October 2017
I do not accept that there was a threat made by any gang to the applicant again in October 2017 related to any police report. The applicant’s evidence was that he was not there and neither was his grandmother at the time of the break and enter. He did not explain how he concluded that this event was related to any police report or continuing threat on his life from the gang. He did not provide further context or detail about the event to assist or explain his reading of this event as a further threat to him.
Further, as I raised with the applicant at the hearing, if any threat had been made to him in October 2017, his conduct after this also does not appear to be consistent with him fleeing danger. For example, he then remained in Malaysia until early December 2017 when he travelled to Australia. He also did not make any application in Australia for a protection visa until February 2018.
These matters concerning his pattern of travel and failure to make a protection visa application until February 2018 were also the subject of the s 424A letter which was sent to the Tribunal, which the applicant responded to in a letter dated 2 April 2024. The content of the applicant’s response is extracted above at paragraph ‎16. I have taken the applicant’s comments into account, but they do not assuage my concerns.
For all of the above reasons I am not satisfied that the second threat occurred.
Reference in pre-hearing outreach regarding unknown person chasing him
I confirm, as well, that I have considered the applicant’s reference to a person or people he does not even know chasing him, that was made by the applicant in response to the Tribunal’s pre-hearing outreach. On the evidence before me, I do not consider there is any unknown person or any person chasing the applicant. This claim appears to reflect the applicant’s other claims regarding the gang or crime syndicate who he asserted he had informed on, and which I have already found did not occur.
To the extent this line in the applicant’s pre-hearing response refers to some other person chasing him for some other reason, I do not find that there is any such person. The applicant has provided no evidence in support of a claim of this kind. At the hearing, I also invited the applicant to tell me about any other reasons he feared returning to Malaysia and he did not raise any other person or reason than those matters I have dealt with above.
Unnecessary to determine the implications of very similar claim set in another Tribunal case
In the end, my findings above are not informed by the issue raised with the applicant at hearing and in the s 424A letter regarding his protection visa application and its strong similarity to another application already determined by the Tribunal. In the circumstances of this case, it is unnecessary to unravel the implications of two very similar applications made at two similar periods in time. Rather, the issues that arose with the applicant’s evidence already explained above have been determinative of the credibility of the claims.
For completeness, I confirm I have not applied a sceptical overlay to my assessment of his claims and evidence based on the similarity of the two applications. I have not drawn any conclusions or evaluated the applicant’s claims and evidence informed by the similarity between his application and the prior application.
Refugee assessment
In respect of the refugee assessment, on the basis of the above findings, I am not satisfied that the applicant would face a real chance of serious harm from gang members or their associates in Malaysia on account of having sold explosives and informed on the operations of the gang to police. This is because I do not accept that the applicant sold explosives, that he informed to police, that his life was threatened by gang members, or that an unknown person or persons are chasing him and accordingly I am not satisfied that there is a real chance of serious harm to him in Malaysia now or in the reasonably foreseeable future for reasons connected to these claims.
As a result, the applicant does not have a well founded fear of persecution as defined by s 5J(1) of the Act and he does not satisfy the refugee criterion.
Complementary protection assessment
In respect of the complementary protection criterion, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant would suffer significant harm. This is because I do not accept that the applicant sold explosives, that he informed to police, that his life was threatened by gang members, or that an unknown person or persons are chasing him and accordingly I am not satisfied that there is a real risk of significant harm to him in Malaysia now or in the future for reasons connected to those claims.
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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hollie Kerwin
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 3035

29 April 2024

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

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Natural Justice