1816173 (Refugee)

1816173 (Refugee) [2024] AATA 2385 (21 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816173
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Ben Goulding
DATE:21 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 March 2024 at 2:36pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – forced marriage to a Muslim woman – accused to be the father of the woman's child – economic harm – employment opportunities – age – Chinese ethnicity – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 May 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 26 July 2017. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether there is a real chance that, if he returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether 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 that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s personal background
The applicant is a [age]-year-old male from Johor, Malaysia. According to his evidence, he is ethnically Chinese and of Buddhist religion.
The applicant travelled to Australia on an apparently genuine Malaysian passport. A copy of the biodata page of the applicant’s passport is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.
At his hearing, the applicant gave evidence that he has never been married or had children. Both of the applicant’s parents are deceased and he has [number] siblings. The applicant stated that he only went to the [specified] grade of [school] and completed his schooling when he was aged about [age]. The applicant claimed that he started working at a very young age, first in [the] market and then in an [Industry 1] business. From about 1991, the applicant was employed [to complete specified work tasks], working primarily in Singapore.
The applicant arrived in Australia as the holder of a visitor visa [in] May 2017 and lodged an application for a protection visa with the Department on 26 July 2017.
Consideration of claims by the Department
In summary, in his protection visa application form lodged with the Department, the applicant claimed that he was forced to marry a Muslim woman; however, he did not want to go ahead with the marriage as it would mean that he would have to convert from his religion to Islam. The applicant also claimed that the woman’s family accused him of being responsible for her pregnancy, which he says is not his fault. The applicant went on to state that he had previously been beaten by members of the woman’s family. He did not seek help from the Malaysian police because the woman’s father is a police officer. The applicant also claimed that he had previously attempted to move within Malaysia, but the woman’s family were able to find him.
The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of his claims. The delegate refused the applicant’s protection visa application on 25 May 2018 on the basis of not being satisfied that the applicant had a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion. The delegate also considered the applicant’s claims under the complementary protection criterion and determined that the applicant could obtain protection from the authorities in Malaysia such that there would not be a real risk that he would suffer significant harm.
Consideration of claims by the Tribunal
The applicant appealed the Department’s decision to the Tribunal on 3 June 2018.
On 21 December 2023, the applicant provided further information to the Tribunal in response to the Tribunal’s pre-constitution outreach. In that response, the applicant stated that he did not want to give more information about his claims for protection and he ‘doesn’t have other reasons’ for fearing returning to Malaysia.
During the applicant’s hearing held on 31 January 2024, the applicant gave evidence that he feared harm from the woman’s family, that he would be forced to change religions in order to marry under Malaysia’s marriage laws, and that he would face economic difficulties on return to Malaysia.
The applicant’s claims are discussed in more detail below.
Claims relating to forced marriage
As outlined above, in his protection visa application, the applicant claimed that he left Malaysia because he was being forced to marry a Muslim woman and her family were holding him responsible for her pregnancy. A summary of the claims included in his protection visa application was read to the applicant at the hearing, and he confirmed those claims were correct.
The Tribunal commenced its enquiry by asking the applicant a series of questions about the woman and his relationship with her. The applicant did not know her name and only knew her by a nickname. The nickname was pronounced ‘[Ms A]’. The applicant described [Ms A] as being over [age] years old. She is of Malay ethnicity and Muslim religion. At the time of the claimed incident with [Ms A]’s family, the applicant was working in Singapore, and he would only return to Johor every fortnight. The settlement where the applicant lived in Johor was very small – smaller than a village. When the applicant was residing in Johor, he lived in illegal housing situated on government land. [Ms A] lived with her family about 200 to 300 metres from the applicant’s residence. The applicant would see [Ms A] in the street, and they would greet one another but the applicant said their relationship was not close. The applicant did not know whether she was in a relationship with or married to anyone else.
The Tribunal asked the applicant several further questions about his relationship with [Ms A]. The applicant said that they would sometimes go out to ‘chat’. However, due to him being Buddhist and her being Muslim, they could not be seen together. When asked where they would go to chat, the applicant explained that they would go somewhere out of the settlement, like a farm, so that others would not see them talking.
The Tribunal asked the applicant if he was in a relationship with [Ms A] and he confirmed that he was not. He explained that he had known her from when she was a child, and they would just talk from time to time.
Following this, the Tribunal asked the applicant several questions about the accusation that he was the father of [Ms A]’s child. The applicant was somewhat unclear on dates but believed the initial accusation occurred in about 2016. The applicant was unable to provide an explanation as to why he was accused of being the father of [Ms A]’s child. He claimed that [Ms A]’s father just turned up at the applicant’s residence and asked him to marry his daughter. [Ms A]’s father attended the applicant’s house with some relatives and there were about three or four people in total.
The only reason the father gave for wanting this marriage was that his daughter was pregnant. The applicant claimed that prior to this, he did not have much interaction with [Ms A]’s family. The Tribunal asked the applicant if he was specifically accused of being the father of [Ms A]’s baby. The applicant responded that [Ms A]’s father didn’t say that, but it was a long time ago, so he was unsure.
The applicant claimed that he had said to [Ms A]’s family that he did not want to marry her. Following this, [Ms A]’s family were rude to him, and a physical altercation took place. The applicant described the altercation as being more than a push, but not serious and not a beating, unlike the claim in his protection application. Additionally, when the applicant attempted to leave, he was held back. Eventually, however, the applicant was able to get away.
The applicant confirmed that this was the only occasion that [Ms A]’s family were physical with him. Following this altercation, the applicant said he would rarely go back to the settlement – either staying with a friend or in Singapore. The applicant confirmed that the last time he had contact with [Ms A]’s family was on the occasion that they approached him requesting that he marry her. The applicant has not had any contact with [Ms A] or her family since he arrived in Australia.
When asked if he reported the incident to the police, the applicant said he did not because he came from a small place, and everyone would know. The Tribunal asked the applicant about the rank of [Ms A]’s father in the police force. The applicant was unsure of the rank but said he is a team leader.
The applicant subsequently claimed that some friends have reported to him that [Ms A]’s family have been looking for him and he was warned by his friends not to return. However, the applicant also said he was not sure that [Ms A]’s family would be able to find him if he did return.
Following this, the Tribunal put to the applicant that it accepts that if he were to marry [Ms A], he would need to convert to Islam as inter-faith marriages between a non-Muslim and a Muslim are not permitted either under the civil law or the Syariah law in Malaysia. However, on the applicant’s own evidence, he did not have any intention of marrying [Ms A] and Malaysia’s Marriage and Divorce Act establishes that all marriages require the mutual consent of the parties.[1] The applicant responded that if an elder sees you together with a Muslim woman, you will be forced to marry her. The applicant also confirmed that a date for marriage had not been set.
[1] Law Reform (Marriage and Divorce) Act 1976, s 70(c).
The Tribunal then put to the applicant that it had found country information relating to the forced marriage of female children in Malaysia[2] but there was very little evidence of the practice more broadly, particularly in relation to adult men being forced to marry a younger woman. The applicant replied that if he is caught in a room with a Muslim girl, then he will be forced to marry that girl. He continued that if a person were to have sex before marriage, then they would be forced to marry. The Tribunal asked the applicant if he had a sexual relationship with [Ms A] and he said he had not.
[2] For example, A Azman and Nur Bahirah Binti Abdul Manaf, ‘Child Marriage in Malaysia: its factors, consequences and Islamic perspective’ (2022), Universiti Sains Islam Malaysia.
On the evidence before it, the Tribunal does not accept the applicant’s claim to fear harm from [Ms A]’s family to be credible. On the applicant’s own evidence, he did not have a relationship with [Ms A], and he is not the father of her child. Additionally, given the applicant’s evidence at hearing, the Tribunal does not accept that the applicant was physically harmed by [Ms A]’s family, nor that he was threatened with harm. Rather, the applicant’s evidence was that he was involved in a single altercation with [Ms A]’s family in which he was pushed and initially prevented from leaving. There is nothing to suggest that [Ms A]’s family would now seek to harm the applicant if he returned to Malaysia. Furthermore, the applicant did not provide any evidence to support his claim that he would be forced into marriage if he returned to Malaysia, nor has the Tribunal been able to locate country information to suggest that an adult male might be forced into marriage.
Given the above, the Tribunal does not accept there to be a real chance that [Ms A]’s family would seek to harm the applicant or force him to marry her if he returns to Malaysia, now or in the reasonably foreseeable future. For the same reason, the Tribunal does not accept that the applicant would be forced to convert to Islam in order to legally marry under Malaysia’s law.
The Tribunal has also 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 such that he meets the complementary protection criterion under s 36(2)(aa). 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 definition.[3] For the reasons given above, the Tribunal has not accepted that the applicant’s claims reach the level of a ‘real chance’. It follows that the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm on the same basis.
[3] 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], Flick J at [342].
Claims relating to economic harm
At hearing, the applicant expressed a concern for his economic security if he were to return to Malaysia, particularly given his age and ethnicity.
The applicant gave evidence that he has seldom worked in Malaysia, except when he was a child. He has spent much of his adult life working in Singapore. He explained that because of his age, he will have difficulty finding employment.
Following this, the Tribunal discussed with the applicant information contained in the current DFAT report regarding social support that might be available to him. In particular, the following country information was read to the applicant:
3.156 The Department of Social Welfare, Ministry of Women, Family and Community Development, provides financial support to the elderly (aged 60 years and above), the economically disadvantaged … and the otherwise vulnerable. [4]
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 29 June 2021, at [3.156].
The applicant responded that being ethnically Chinese made his situation more difficult. The Tribunal then discussed relevant information from the DFAT report, including that DFAT assesses that ‘Chinese Malaysians experience low levels of official discrimination’.[5] The applicant replied that the report about social welfare is not accurate as many people in Malaysia are poor and you are forced to rely on yourself. The applicant then said that his situation was not serious due to him being ethnically Chinese but due to his age. The applicant elaborated that at his age, he could not work in [Industry 1]. When asked by the Tribunal whether he could continue similar work to that which he has done in Australia, the applicant said it would depend on the season.
[5] 2021 DFAT Report, at [3.12].
In terms of family support, the applicant explained that this would not be available to him for a variety of factors including the age and health of his siblings, their personal circumstances, and his limited contact with them. The applicant claimed that if he returned to Malaysia, he would have nothing to live on.
In relation to the employment situation in Malaysia, the Malaysian Department of Statistics reported in February 2021 that there was a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent.[6] More recent data from the World Bank indicates that in 2022 Malaysia’s unemployment rate was 3.7 per cent.[7] In 2019, prior to the pandemic, Malaysia’s unemployment rate was 3.3 percent.[8] In November 2018, media reported that the average unemployment rate for Indian Malaysians was 4.7 per cent and for Bumiputera it was for 4 per cent. Whereas for Chinese Malaysians, it was reported that the rate was 2.4 per cent.[9] However, overall, Malaysia’s economic outlook appears to be somewhat mixed, with DFAT reporting that whilst economic growth is relatively strong, there remain significant inequalities within the economy:
2.9 The World Bank classifies Malaysia as an upper middle-income, export oriented economy. In 2019 its real GDP growth was 4.3 per cent, while per capita GDP was USD11,418 (approx. AUD 15,000). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. …
2.10 According to the World Bank, following the Asian financial crisis of 1997-98, Malaysia’s economy was on an upward path (until COVID-19), averaging growth of 5.4 per cent from 2010. Malaysia’s progression from an upper-middle income economy to high-income status, according to the World Bank’s measure, had been anticipated to occur between 2024 and 2028. This may be delayed somewhat by the effects of COVID-19, while some commentators have suggested Malaysia cannot sustain the high levels of growth required to make this transition.
2.11 Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called ‘B40’ who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.[10]
[6] 2021 DFAT Report, at [2.13].
[7] ‘Unemployment, total (% of total labor force) (modeled ILO estimate) – Malaysia’ The World Bank, 5 September 2023, < 2021 DFAT Report, at [2.13].
[9] Ibid.
[10] 2021 DFAT Report, at [2.9]–[2,11].

In addition to the DFAT report referred to above, country information indicates that Malaysia’s welfare system is generally well developed. Broadly speaking, there are three categories of social welfare, namely, social insurance and pensions, public assistance, and labour market programmes.[11] B40 income earners receive an income supplement called the Household Living Aid,[12] and may be eligible for additional income assistance and healthcare.[13] Various welfare assistance and support services are also administered by state governments, including the Zakat system that provides payments to needy and vulnerable persons.[14]
[11] ‘Social Protection Programme in Malaysia, Do We Need Integration?’, Samad, S A and Shahid, M Md, International Journal for Studies on Children, Women, Elderly and Disabled, volume 5, October 2018, pp.72–73, 20201116170755; ‘Social Security Programs Throughout the World: Asia and the Pacific, 2018: Malaysia’, Social Security Administration, March 2019, 20201116141555; ‘Social Protection for all: The next step of the Malaysian welfare’, Koutronas, E, University of Virginia, 18 July 2020, chapter 2, 20201117115643.
[12] Formally known as Bantuan Sara Hidup. ‘A Guide to Social Protection in Malaysia’, The Centre, 19 October 2019, 20200512115042; ‘Government’s Aid for the People’, Prime Minister’s Office of Malaysia, n.d., accessed 17 November 2020, 20201117185421.
[13] ‘ProtectHealth Overview’, Ministry of Health (Malaysia), n.d., accessed 5 September 2023,20230905130105; ‘A Guide to Social Protection in Malaysia’, The Centre, 19 October 2019, 20200512115042.
[14] ‘A Decade of Social Protection Development in Selected Asian Countries’, OECD, 11 May 2017, p.60, CISEDB50AD5044.
In relation to age discrimination, the International Bar Association reports that in countries such as Malaysia where there is no specific age discrimination legislation, ageism in the workplace is rife. The report goes on to say that:
Studies by the Malaysian Research Institute on Ageing – MyAgeing – have reportedly found that the HR departments of some companies were reluctant to employ senior citizens and when advertising vacancies, there were job advertisements which blatantly specified that candidates should be aged below 40. There were even company officials who admitted that the objective of MyAgeing went against their own company’s human resource philosophy of discontinuing the services of their older workers.
While there are no specific age discrimination laws in Malaysia, there are other labour laws that provide for the security of the tenure of employees, including that the employee cannot be dismissed without just cause or excuse (the Industrial Relations Act 1967) and that an employee cannot be terminated on the grounds of age before the employee attains the minimum retirement age (the Minimum Retirement Age Act 2012).[15]
[15] ‘Combatting age discrimination: the role for employers and in-house lawyers’, International Bar Association, <>
In view of the country information referred to above and the applicant’s evidence, the Tribunal accepts that employment opportunities may be limited for ‘older’ persons in Malaysia. However, the fact that a person experiences some level of discrimination is not necessarily enough to establish persecution.
Under s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person. Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test, listing the following as 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.
Whilst the Tribunal does accept that the applicant may experience some discrimination due to his age or ethnicity, the Tribunal does not accept there to be a real chance that such discrimination, either individually or cumulatively, will rise to the level of serious harm in the particular circumstances of the applicant.
The Tribunal accepts that the applicant may be able to earn more money in Australia than he is able to in Malaysia, and that it may be somewhat difficult for the applicant to initially find work if he were to return to Malaysia. Whilst the Tribunal accepts that the applicant will not be able to rely on family for financial support, his own evidence was that he may have some employment options in Malaysia undertaking seasonal work. Additionally, country information also indicates that he may be eligible for income assistance upon return to Malaysia, and will soon be eligible for government financial support to help those over the age of 60.[16] As such, the Tribunal does not accept that he would be denied the capacity to earn a living of any kind or suffer economic hardship such as would threaten his capacity to subsist.
[16] 2021 DFAT Report, at [3.156].
The list of instances of serious harm in s 5J(5) is not exhaustive, however, the Tribunal 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 age discrimination, ethnic discrimination, or the general economic situation in Malaysia, if he returns to Malaysia now or in the foreseeable future. It follows that the Tribunal does not accept that the applicant meets the criteria set out in s 5J(4)(b).
In considering whether economic and other forms of harm that the applicant fears would amount to significant harm in the complementary protection criterion under s 36(2)(aa), the Tribunal has had regard to the definition of ‘significant harm’ as 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 accepts that the applicant may be subjected to a level of age or ethnic discrimination in Malaysia, particularly in relation to employment. However, the applicant does not claim, nor does the country information suggest, that the harm described by the applicant in Malaysia could amount to significant harm for the purposes of s 36(2A) of the Act. In this regard, 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 as a consequence of that discrimination or economic harm. Additionally, the Tribunal does not accept that the harm described by the applicant would rise to the level of cruel or inhuman treatment or punishment or degrading treatment or punishment as those terms are defined in the Act.
For these reasons, 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.
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.
Ben Goulding
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 2385

21 March 2024

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