1821208 (Refugee)

1821208 (Refugee) [2020] AATA 3189 (23 July 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821208
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Deputy President Jan Redfern
DATE OF DECISION:  23 July 2020
DATE CORRIGENDUM
SIGNED:24 August 2020
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

In paragraph 42, the word “owning” be replaced with “owing” and the word “injury” be replaced with “injure”, so that the text of the decision reads as follows:

“42. ...It is possible his debts spiralled out of control and that he was unable to repay the money owing such that by August 2017 moneylenders approached him on numerous occasions to recover those loans. I accept that the lenders were persistent in their demands, but I do not accept that they physically injured or threaten to injure him…..”

Jan Redfern PSM
Deputy President
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821208
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Deputy President Jan Redfern
DATE:23 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 July 2020 at 10:35 AM

CATCHWORDS
REFUGEE – Protection (Class XA) (Subclass 866) visa – Malaysia – application for protection on basis the basis of the refugee and complementary protection criterion – applicant claims to fear harm from loan sharks – consideration of refugee criterion in s.36(2)(a) of the Migration Act 1958 (Cth) – consideration of complementary protection criteria in s.36(2)(aa) of the Migration Act 1958 (Cth) – applicant found to not be a person in respect of whom Australia has protection obligations under s.36 of the Migration Act 1958 (Cth) – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth), ss. 5H, 5J, 36(2)(a), 36(2)(aa), 36(2A), 36(2B)
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
SECONDARY MATERIALS
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guidelines’
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Refugee Law Guidelines’
Department of Foreign Affairs and Trade Country Information Report on Malaysia, dated 13 December 2019.
Minister for Immigration and Border Protection (Cth), Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (‘the Act’).
The applicant was born in [year], in [city] [state] Malaysia. He claims to be a citizen of Malaysia. The applicant first arrived in Australia on 7 March 2018 on a UD-601 visitor visa Electronic Travel Authority and applied for a protection visa on 21 May 2018.
The applicant applied to the Tribunal for review of this decision on 22 July 2018. The applicant was invited to attend a hearing before me on 1 July 2020 and, after advising he had documents to support his claims, a resumed hearing on 21 July 2020.
I am not satisfied about the applicant’s claims for protection and I affirm the decision under review. My reasons follow.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria in ss.36(2)(a), (aa), (b), or (c) of the Act. 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.
Subsection 36(2)(a) of the Act 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) of the Act.
Under s.5J(1) of the Act, 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 of the Act.
If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, 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) of the Act.
Extracts of the relevant provisions of the Act are attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84[1] made under s.499 of the Act, the Tribunal is required to take account policy guidelines prepared by the Department of Immigration -Procedural Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines and Procedural Advice Manual 3 ‘Refugee and humanitarian - Refugee Law Guidelines- and any country information assessment 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.
[1]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.
The most recent report from DFAT is the Country Information Report for Malaysia dated 13 December 2019 (‘DFAT report’), which I have considered.
Generally, the guidelines prepared by the Department contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances of this case.
BACKGROUND
The applicant arrived in Australia on 7 March 2018 on a visitor visa obtained through an Electronic Travel Authority. He made an application for a protection visa on 21 May 2018.
In his application, the applicant stated that he was claiming protection because he feared harm from loan sharks who had physically assaulted him when he was unable to make the agreed repayment of the loan. In the application the applicant is recorded as stating that he could not relocate and that he could not lodge a police report as the loan sharks would “act aggressively”. The applicant claimed that he sought assistance from family friends, however they did not provide enough money to repay the loan. He provided no documents or material to support his claim, other than identity documents.
The applicant was not invited to attend an interview with a Departmental officer. On 18 July 2018 the delegate refused the application. The delegate did not make any findings about the truth of the claims made by the applicant that he had been threatened by loan sharks but rejected the claim for protection under the refugee criteria on the grounds that the applicant’s claimed fear of harm in Malaysia did not have the relevant refugee nexus. The delegate considered whether Australia’s obligations were engaged under the complementary protection criterion, but the claim was rejected because the delegate was not satisfied there was a real risk of the applicant suffering significant harm. In summary, the delegate found that, while there may be instances of corruption in the police force, the Malaysian authorities were willing and reasonably effective in combating illegal moneylending. Relevantly, the delegate relied on extracts from the DFAT report about enforcement action against loan sharks and loan shark syndicates and newspaper articles reporting the results of police action in 2016 and 2017. According to the delegate, Malaysian authorities were willing and able to provide this would provide the applicant with an “adequate level of protection” such that there would not be a real risk that he would suffer significant harm.
On 1 July 2020, the applicant appeared before me to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin language. The applicant said that he had documents to support his claim and the proceedings were adjourned to give the applicant the opportunity to provide the documents. By letter dated 3 July 2020, the applicant was requested to provide the documentation discussed at the hearing, including any documents relating to the loan, copies of medical bills paid that the applicant said he had paid and copies of any police report. The applicant did not provide any further information.
The applicant was invited to attend a resumed hearing on 21 July 2020, which he attended by telephone, again with the assistance of an interpreter.
OUTLINE OF EVIDENCE
The applicant said that he had seven siblings, a wife, four children and two grandchildren in Malaysia. His oldest daughter was married and had two children. One of her children was diagnosed with cancer at an early age. The child underwent surgery then treatment and has now fully recovered. Two of his children went to university, one to a private university and the other a public university. He paid for their tuition fees. The total fees for one child were about 120,000 ringgit or 30,000 each year from 2014. She had finished her course in 2018. The tuition fees for his youngest child were between about 5,000 and 10,000 ringgit each year. She would be graduating in a year.
Prior to travelling to Australia, the applicant had lived and worked in Kuala Lumpur and operated a coffee shop, which had traded since 1995. He employed a number of people shop, including his family, but he ran into financial difficulties in 2016 because of increased competition in the area.
He first started borrowing from a so-called loan shark at the end of 2015 when he had cash flow difficulties in relation to his business. He responded to advertisements from posters on the street near his shop. Initially he borrowed 5000 ringgit. He kept 3500 ringgit but the rest was retained by the lender as interest. The applicant said that he had to repay this in a week, which he was able to do. According to the applicant, this pattern continued and on occasion he borrowed from different lenders to pay back previous loans. He was able to maintain this practice until 2017, when he was unable to keep up with payments. The applicant said that by late 2017, he had borrowed 200,000 ringgit which he was unable to repay.
The applicant said he paid about 70,000 ringgit towards his grandson’s medical bills but was not sure about how much money had been paid by his daughter and son-in-law. He also said that he continued to pay his children’s university tuition fees during 2017 and 2018.
The applicant said that from about August 2017 various moneylenders made threats to him. He said that they came to his home in Kuala Lumpur, chained the front door and used red pen on the front door to write the message “you owe me money and you need to pay the money back”. The applicant said that he reported the matter to the police who came to his house to take a statement. He said that nothing further happened and that, generally, it was understood that the police would not take action on these matters unless the complainant was injured or hurt. The applicant said he did not follow up on the report made with the police. He also said that lenders came to his house and poured red paint on the door. The applicant was asked whether anything else happened, he said that every day someone would come to his house or his business to ask for the money to be repaid. Different lenders would come to his shop and when he was able to, he would pay them, he would do so from the business. He said that the money lenders interrupted the business because they would sit in his shop and yell out to him that he needed to pay the money back. He said that they did this when customers where there. Despite this he did not call the police for intervention. The applicant said that he did not consider there would be any value in doing this even though he said that the lenders were scaring his customers away. The applicant was asked why the lenders would disrupt the business if this was the best way for them to have their money repaid and the applicant said that he needed to clarify his evidence. He said that when one of the lenders was repaid the other lender decided to make trouble by disrupting his business. He further said that he did not seek assistance from the police because he is a Malaysian of Chinese background and that the police would not help him.
The applicant said he was forced to close his business in late 2017 because of this activity by the lenders and he travelled back to his hometown to avoid the lenders. He later decided to travel to Singapore to find work but was unsuccessful. In late 2017, he contacted a Malaysian man who said he was a migration agent and told him he could assist the applicant migrate to Australia to get a job. The applicant said that the Malaysian agent told him he could come to Australia and find work and that he paid the agent $3,000. According to the applicant he borrowed 20,000 ringgit from a friend in Malaysia for the expenses to travel to Australia and to pay the agent.
The applicant arrived in Australia in March 2018 and found work soon after. He worked in a café until December 2019 but after that time he was unable to find regular work and was only able to work casual jobs, two or possibly three days a week. Initially he had been able to send money home to his family in Malaysia but was now finding very difficult and was only able to cover his expenses. He was not able to repay any of the loan to the moneylenders, nor was he able repay his friend.
The applicant said that he did not complete the visa application himself that the application was completed by the Malaysian agent. He said that he did not speak or read English and did not read the visa application. There were parts of the application that I asked him about which he said were incorrect. One of the issues raised was whether the applicant had been physically assaulted by the money lenders. When asked whether the applicant had ever been hit or hurt, the applicant replied that he had. The applicant was asked to explain why he had not mentioned this previously and he said that he had been punched in the chest by one lender but because he had not been injured, he did not mention this and did not go to the police. He also said that he was not afraid of the physical abuse but rather the verbal abuse.
When the applicant was asked what would happen if he returned to Malaysia he said that he could not go back to his previous place of residence but that he would be able to return to one of the regional areas, including his hometown. He said that he was finding it very difficult to live in Australia at this time and that he only had enough money to cover his living expenses. He said that he was trying to save up to pay for the flight back to Malaysia. The applicant said that he missed his family and that he wanted to return to Malaysia before November 2020.
CONSIDERATION
The essence of the applicant’s claim is that he left Malaysia because he feared harm from loan sharks, although the applicant now says that he could live in the regions without fear of harm and wishes to return to Malaysia.
Notwithstanding this evidence, and because the applicant has not withdrawn his application for review, I set out my findings in relation to the claims made by the applicant in his application for protection.
To meet the refugee criteria in s.36(2)(a) of the Act the Tribunal must be satisfied the applicant is a refugee, as defined by s.5H of the Act. In brief and as already noted, any fear of persecution must be well-founded and must have a refugee nexus, namely, the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because he or she is a member of a particular social group. The reason, or reasons, must be the essential and significant reason for the persecution (s.5J(4)(a) of the Act).
Having regard to the material before me, I am not satisfied that the harm claimed is for one or more of the reasons set out in s.5J(1) of the Act. There is no claim that the loan sharks are threatening the applicant because of his race, religion, nationality, political opinion or because he is a member of a particular social group. It is clear from the evidence provided by the applicant that any claimed threat or potential for harm relates to fear by the applicant that he will be verbally abused and harassed by the money lenders if he does not repay the money owed. This is the essential and significant reason for the harm that the applicant claims he will suffer. This is not one of the reasons enumerated in s.5J(1) of the Act.
As such, I am not satisfied the applicant has a well-founded fear of persecution as required for the purposes of the definition of a refugee contained in s 5H of the Act. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act because I am not satisfied that he is a refugee.
However, this is not the end of the matter. I must also consider whether the applicant is a person in respect of whom Australia has protection obligations under the complementary protection grounds set out in s.36(2)(aa) of the Act.
Accordingly, the critical issue in this case is 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 the applicant will suffer significant harm.
Significant harm is exhaustively defined in s.36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34).
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally (refer s.36(2B) of the Act).

There is country information available to the effect that loan shark activities have been a persistent and deep-rooted feature of Malaysian society for several decades.[2] According to DFAT, although it is noted that this cannot be verified:
Sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened.[3]
[2] Y. G. Guan, ‘The Long and Short of the "Along" Problem’, May 2003, The Malaysian Bar Association website.
[3] DFAT report at [3.111].
DFAT also reports that while “authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice… the Commercial Crimes Investigation Department reported 3,903 cases and arrested 2,698 people in relation to loan scams between January and November 2018”.[4]
[4] Ibid at [3.112].
Unlicensed money lending is illegal under the Moneylenders Act (1951; amended 2003 and 2011) which gives police considerable investigative powers against alleged loan sharks. DFAT reports that police have made a number of recent high-profile arrests and investigations at [3.116] but note as follows:
3.117 Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption. DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level of protection offered by police. DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and may also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.
According to DFAT, the Malaysian Chinese Association’s Public Services and Complaints Department “plays an intermediary role between loan sharks and Chinese Malaysian victims of loan sharks who are unable to repay their loans, and reportedly receives an average of 500 to 600 complaints regarding loan sharks each year”. It is also noted “[s]ources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the one per cent government rate”.[5]
[5] DFAT report at [3.113].
On the question of whether Malays with Chinese backgrounds are treated differently by police, I note that according to DFAT, in 2018 Chinese Malaysians made up 20 percent of the population, are Malaysia’s second largest ethnic group and “comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia”. DFAT does not record any incidences of discrimination or differential treatment by police or other authorities.[6]
[6] DFAT report [3.8] to [3.14].
Having regard to the evidence of the applicant and the available country information, I accept the applicant’s evidence that he entered into a series of loans, possibly with unlicensed moneylenders, when his business was struggling in 2016. I also accept that he may have needed money to pay for medical bills and other expenses. It is possible his debts spiralled out of control and that he was unable to repay the money owing such that by August 2017 moneylenders approached him on numerous occasions to recover those loans. I accept that the lenders were persistent in their demands, but I do not accept that they physically injured or threaten to injure him. Even though this concern was included in his application for protection, the applicant did not give evidence to this effect when he first recounted what had happened. It was only later suggested that he had been punched in the chest and this was in response to a specific question about whether he had been hit or hurt. The applicant’s explanation about why he had not raised this earlier was implausible and unpersuasive.
For instance, when asked why he had not mentioned this earlier in his evidence and why he had failed to report this matter to the police, the applicant said he wanted to clarify his evidence. He said that he was only punched in the chest once by a lender and this it did not hurt so he did not mention this before. He also said that he was mainly concerned about verbal and not physical abuse, which seems inconsistent. Furthermore, he could not explain why lenders created a scene to interrupt his business and scare away customers when this seemed the most likely source for the potential repayment of their respective loans. In other words, this aspect of the applicants evidence was vague and unconvincing and given his later evidence, that he was not concerned about returning to Malaysia, I am not satisfied that the applicant faced anything other than persistent demands for repayment, without physical harm or the threat of harm. The applicant could have at any time reported threats to the police, which he did not do after the red paint on the door, and he could have sought assistance from the Malaysian Chinese Association. This is supported by the evidence later given by the applicant that he was not concerned about returning to Malaysia to a regional area where he could avoid the lenders.
Based on the applicant’s evidence, I am satisfied that the applicant was concerned about being constantly visited and, in his view, being harassed by the lenders for the repayment of the money, particularly when he was not in a position where he could repay such a sizeable amount. However, the applicant had (and has on his return) various options to resolve these matters. I am not satisfied that there is a real risk he will suffer significant harm on his return.
First, I am not satisfied that there is evidence the applicant will be physically harmed or that he will face cruel or inhuman or degrading treatment or punishment by the lenders. Relevantly, there is no evidence that this happened before the applicant left Malaysia. He in fact denies that this happened in his evidence, except for one occasion, when he apparently did not feel sufficiently concerned to report the matter to police or to initially raise this in his evidence as a matter of significance. Persistent requests for money, without more, cannot be described as cruel or inhuman or degrading treatment or punishment. Overall, the applicant’s evidence is to the effect that he was attempting to improve his situation by finding work to either pay off the debt or to provide for his family and that this was his primary motivation in travelling to Australia. He was able to do this in Australia to some degree until December 2019 but after this time found it very difficult. The applicant expressed the desire to return to Malaysia. This is because, as stated by the applicant, he does not believe he will face harm from the lenders if he returned to the regional areas, such as his hometown in Melaka (Malacca).
Secondly, and relevant to the applicant’s expressed desire to return, are the provisions of s.36(2B) which provides:
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;
In this case, it is reasonable that the applicant relocate from his former residence in Kuala Lumpur to his hometown and the applicant accepts this to be so. He has given evidence, and there is no evidence to suggest the contrary, that he will not be harmed by lenders if he relocates to regional area.
For the reasons given above, I am not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s.36(2A) of the Act, if he is removed from Australia and returned to Malaysia. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies ss.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jan Redfern PSM
Deputy President

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

[2020] AATA 3189

23 July 2020

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice

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