1823695 (Refugee)

1823695 (Refugee) [2024] AATA 2565 (20 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1823695
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Alison Ryan
DATE:20 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 June 2024 at 2:23pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – former gang member fearing harm from other members – hit-and-run accident, fight with one member, beating, torture and threats – late claims made, relating to integers of original claims – unrepresented and no interview with department – no adverse inference drawn – credibility – inconsistent evidence – no reason for earlier hit-and-run, and relocation for work before later claimed incidents – country information – wife with own visa and child not applicants – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulation 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
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
BACKGROUND

The applicant, who claims to be a citizen of Malaysia, came to Australia on an Electronic Travel Authority (Class UD, Subclass 601) [in] March 2018.The applicant applied for a protection visa (Class XA, Subclass 866) on 20 April 2018.
A delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 13 August 2018 (delegate’s decision). The delegate’s decision is the subject of this review by the Administrative Appeals Tribunal (the Tribunal).
The applicant appeared before the Tribunal on 8 May 2024 to give evidence and present arguments.
CLAIMS AND EVIDENCE
Protection visa application
In his protection visa application, the applicant states that he is a Malaysian citizen born in Kuala Lumpur in [Year]. He has grown up and spent most of his life in Selangor, Malaysia. He details that he is Muslim, of Malay ethnicity and not married. The application notes that he can speak, read and write Malay, English and Chinese.
The applicant’s claims in his protection visa are summarised as follows:
The applicant was involved with a gang called [Name] and he was an active member in that gang.
Under instruction from other gang members the applicant would deliver and collect money from shops under their control.
He was in the gang for a few years and last year he decided to quit as he planned to marry. When he told a gang member that he wanted to quit he was angry. The gang member refused to allow the applicant to quit due to the secrets that the applicant may leak. Despite the gang member being angry the applicant quit and so the gang member was not happy with the applicant and is looking for the applicant.
The gang members contact the applicant by phone and threatened to kill him unless he re-joined the gang.
The applicant got into a fight with the gang member and the gang member lost. From that day onward the gang member was very angry with the applicant and wanted to stab the applicant because he lost his name by losing the fight to the applicant.
There have been many threats to kill the applicant and he has missed them seeing him a few times.
The applicant cannot go to the police for assistance because he has been caught by the police a number of times and has a bad reputation with the police. The police would not believe the applicant because he is blaming his own team.
The applicant moved to another state but they kept on tracking him.
The applicant fears that the gang will carry out their threats if he returns to Malaysia.
If the applicant returns to Malaysia the police are also waiting to get him because he has convictions related to small gang gatherings and fights. There will be no shelter for the applicant in his country.
The applicant attached a copy of the identification page of his passport and national identity document to the protection visa application.
Departmental interview
The applicant was not invited to an interview by the Department of Home Affairs.
The delegate’s decision
The delegate refused the application on 13 August 2018 on the basis that the applicant could obtain protection from the Malaysian authorities such that there would not be a real risk that the applicant will suffer significant harm in Malaysia.
The review application
The applicant made an application to the Tribunal for review on 15 August 2018. No additional information about the applicant’s protection claims were included with the review application.
On 23 August 2018 the Tribunal wrote to the applicant acknowledging his application and advising him that if he wished to provide material or written arguments, he should do so as soon as possible.
On 31 January 2024 the Tribunal wrote to the applicant to advise him that his case was being prepared to be given to a Member and inviting more information about his protection claims.
On 6 February 2024 the applicant completed the Tribunal’s pre-hearing information online form without adding anything substantive to his protection claims.
On 26 February 2024 the Tribunal wrote to the applicant informing him that the Tribunal was not able to make a favourable decision on the information he had provided. The Tribunal invited the applicant to attend a hearing on 2 April 2024 to give further evidence or arguments.
On 25 March 2024 the applicant requested a postponement of the hearing in order to have more time to find a legal representative. The Tribunal agreed to a postponement and new hearing was set for 8 May 2024.
On 1 May 2024 the applicant submitted the Tribunal’s response to hearing form indicating that he would attend the re-scheduled hearing. He indicated that he does not intend to rely on any documents at the hearing and did not make mention of any witnesses. He did not provide any further information about his protection claims.
The applicant appeared before the Tribunal on 8 May 2024 to give evidence and present arguments. The hearing was conducted with the assistance of a Malay interpreter. The applicant was not represented. The applicant confirmed that he did not request the Tribunal to take evidence from any witnesses. Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below.
At hearing the applicant presented the following documents:
·original of his passport;
·police report related to motor vehicle accident;
·medical report related to above accident;
·three photos of injuries sustained by the applicant.
At hearing the Tribunal offered the applicant seven days to provide any further documents after the hearing but the applicant declined this offer. No further documents were received by the applicant.
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.
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.
Country information
The Tribunal had regard to the latest DFAT country information report on Malaysia which reports the following:
Malaysian media citing official police statistics in early 2018 reported that over 100 illegal gangs, with an estimated 9,000 members, operated in Malaysia. Of these gangs, 65 were reported to be Chinese Malaysian, 20 were Malay and 18 were Indian Malaysian-run gangs. DFAT is not able to verify these statistics. Sources report many street-level gang members are Indian Malaysians, reflecting their relative economic vulnerability. High-level crime, including drug trafficking, is more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan shark practices. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them.[1]
[1] DFAT Country Information Report Malaysia’, Department of Foreign Affairs and Trade, 29 June 2021 at 2.47.
The tribunal also reviewed a number of Malaysian media articles, available online about gangs[2], including the [Name] gang including information about the arrest of [Name] gang members in [Year][3] and [Year].[4]
[2] [Source]
[3] [Source]
[4] [Source]
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether either the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or ‘complementary protection’ grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant has consistently claimed to be a Malaysian citizen. He came to Australia on a Malaysian passport and has provide a copy of his Malaysia passport. The applicant spoke Malay at hearing. There is no information before the Tribunal raising concerns with the applicant’s identity. The Tribunal finds that the applicant is a Malaysian citizen.
There is no information before the Tribunal to suggest that the applicant is a citizen of another county or that he has a right to enter and or reside in another country.
The applicant’s personal background
The applicant gave evidence that he was raised in and lived in [Town] Selangor, until coming to Australia, except for periods where he moved for employment. The applicant is a Sunni Muslim and of Malay ethnicity. The applicant graduated from high school and has worked various jobs in Malaysia including in [occupations]
At hearing the applicant advised that he married in Australia in 2022 or 2023 to his wife who is a Malaysian citizen and with whom he has been in a relationship for about 12 years. The applicant’s wife is on a student visa in Australia is not an applicant in this review. The applicant and his wife had a child this year. The applicant’s child is not an applicant in this review. The applicant came to Australia with his adult brother who is also living in Australia with the applicant and who has made a protection visa application. The applicant confirmed that he did not have any fears of harm returning to Malaysia due to his brother’s circumstances. The applicant also advised that his mother is currently in Australia visiting the applicant and his family.
The Tribunal accepts the above matters to be true.
The applicant’s protection claims
At hearing the applicant confirmed that he completed his protection visa application with the assistance of his friend who was not a lawyer or a migration agent. The applicant stated that the applicant himself wrote some of the information in the application but his friend who had better English wrote the ‘essay’ part of the application. After showing the applicant the relevant parts of the application at hearing, the Tribunal understood the essay part of the application to be the claims for protection. The applicant confirmed that he knew what was written on his behalf, he has read it and it is correct.
At hearing the applicant gave evidence that he had suffered depression in Malaysia due to circumstances related to his protection case. The applicant indicated that he did not have a mental health diagnosis and had not sought medical assistance in Malaysia for his mental health as it is too expensive. The applicant did not advance any specific claims related to his fears of harm on this basis in Malaysia or provide any documents related to his mental health in Malaysia or Australia.
At hearing the applicant elaborated his claims for protection. Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below, however a summary of the additional information about his claims for protection is provided below.
The applicant joined the [Name] gang (the Gang) when he was about [age] years old.
In December 2008 the applicant was hit by a car in a hit-and-run incident and was in a coma for about two days in the hospital. The applicant was able to view CCTV of the incident which showed that the car that hit him had a logo of the Gang. The applicant claims he may have been hit deliberately by members of a different part of the same Gang but the applicant does not know why he was hit by a different group within the Gang. The applicant provided copies of a police and medical report as well as pictures of the injuries the applicant sustained in the incident.
The applicant worked as a security guard for the Gang, guarding their gambling shops and housing construction projects.
The applicant confirmed he did not have any markings, tattoos or scaring related to membership of the Gang, however he previously had a neck chain that was worn by Gang members but he has since thrown it away.
In December 2016 the applicant told the gang he no longer wanted to be involved in the Gang’s illegal activities. In the following days 5 people from the gang, who he does not know the names of, took him and beat him and threatened to kill him if he left the gang.
In the beginning of 2017, 3 members of the Gang who were known to the applicant, took the applicant to their house and asked him why he wanted to leave the Gang. They were angry with him wanting to leave and harmed him including putting hot coals on his [body]. The applicant showed the Tribunal scaring on his [body part] area. The applicant was held at the location for approximately one hour and then released. The applicant told the gang members he would not leave the gang. The applicant did not seek medical attention. The applicant did not do any further activities with the gang until April 2017.
In approximately April 2017 the same 3 Gang members came to the applicant’s house and took him with them while they tried to rob a gambling venue. The applicant remained outside while the others carried out the robbery. The applicant did not have any further contact, harm or threats from the gang after this April 2017 incident.
The gang members came to the applicant’s house, when he was not there, to look for him on 2 or 3 occasions the last time being in 2019.
The applicant stated that he feared harm from the leader of the Gang, [Mr A] as well as members of the gang.
The applicant stated that although he did not have any problems with the police when he was in Malaysia he fears that if he returns to Malaysia he would have problems because he would be involved in illegal activities associated with guarding the illegal gambling operations.
The applicant confirmed he did not fear harm from the authorities or police in Malaysia if he did not work with the gang again.
Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. At hearing the applicant provided evidence about two additional events which that were not before the delegate. Firstly, the applicant claims that he was the victim of a hit and run incident in 2008 committed by members of the Gang. He provided a photo, medical and police report in relation to the incident. Secondly, he was detained in April 2017 by Gang members during which he was threatened and hot coals were put on his [body]. The Tribunal discussed the provisions of s423A with the applicant who explained his delay in providing the information was because he did not know where to send the information. The Tribunal also takes in account the applicant’s response and notes that he was not represented in relation to his protection visa application. The Tribunal considers that in these circumstances, and also noting that the new claims and evidence relate to integers of the claims made in his protection visa application and that he was not invited to an interview with the Department of Home Affairs, that there is a reasonable explanation as to why the claims and evidence was not raised before the primary decision was made. The Tribunal does not draw an inference unfavourable to the credibility of these claims and evidence on the basis that they were not raised before the primary decision maker.
However, considering all the evidence provided by the applicant at hearing and in his protection visa application, the Tribunal has serious concerns about the credibility of the applicant’s claims to fear harm from the Gang in Malaysia for the following reasons.
Firstly, there are significant inconsistencies between the applicant’s oral evidence at hearing about his experiences with the Gang and his experience with the police compared to his protection visa application.
·At hearing the applicant stated that he had not had any problems with the police while he was in Malaysia. However, in his protection visa application it is stated that he could not go to the police to seek protection because he got caught by the police a couple of times and has a bad reputation with the police.
·In the applicant’s protection visa application it is stated that after telling the gang he wanted to leave he got into a fight with the brother, presumably referring to another gang member, and the brother lost the fight and became very angry from that point onward and wanted to stab the applicant because of the loss of face. The applicant did not mention any such fight during the Tribunal hearing and gave evidence that he had not had any other problems or contact with the Gang members after saying he wanted to leave the Gang, other than those already mentioned at hearing.
·At hearing the applicant gave evidence he was threatened in person however in his written application it states that the gang members threatened him by phone.
·The protection visa application states that the applicant moved state to avoid harm from the Gang however the address history provided by the applicant at hearing did not indicate that he had moved house in the time-period he was under threat from the Gang. In response to the Tribunal’s concern about this inconsistency, the applicant stated that he had moved to [Location] which is in different state. The Tribunal clarified with the applicant if he was fearful of the gang when he moved to [Location] and the applicant replied that he was. The applicant has detailed that his problems with the Gang, apart from the alleged motor vehicle accident in 2008 which occurred at around the time he joined the gang, started after he told them that he wanted to leave the Gang which was sometime after he returned from [Country] in December 2016. Although the applicant could not remember which year he moved to [Location], he did state that it was before he met his now wife, who he started a relationship with about 12 years ago, many years before December 2016. It is inconsistent that he moved to [Location] to avoid the Gang, years before he had decided to leave the Gang. Further, the applicant had previously stated that he moved to [Location] for work and did not mention any fear of the Gang in his decision to move.

The Tribunal has considered the applicant’s response to the Tribunal’s concerns related to the above inconsistencies, that he told his friend to include what he had said in the application but he did not know what was written by his friend. However, this explanation is not consistent with the applicant’s previous evidence that he both knew and had read his application and agreed that the details were correct. The Tribunal places significant weight on these inconsistencies which cause the Tribunal to have serious concerns about the truthfulness of the applicant’s evidence which form the basis for his claims for protection.
Secondly, the applicant provided inconsistent and confusing evidence during the Tribunal hearing about the death threat he received from the Gang when he was in Malaysia. At hearing the applicant initially stated that in the following days after he told the Gang that he wanted to leave the Gang he was beaten and, at the same incident where he was beaten he was subject to a death threat. When asked to describe the details of what happened when he was beaten, the applicant gave evidence of being taken from a mall by 5 gang members and beaten. When asked if the gang members said anything to him the applicant stated that he could not remember. The Tribunal raised concerns with the applicant that his evidence that he could not remember if anything was said to him appeared to be inconsistent with his previous evidence that he was subject to a death threat during the same incident. The applicant’s response that he was subject to a death threat at the time he was beaten did not offer an explanation to explain the inconsistency. This inconsistency reinforces the Tribunal’s concerns about the truthfulness of the applicant’s evidence.
Thirdly, the Tribunal finds the applicant’s evidence about being the target of a hit and run by the Gang illogical and not corroborated by the police report or any other evidence provided by the Applicant. The Tribunal finds it illogical that the applicant would be subject to a targeted hit and run incident by Gang members who were part of the same Gang he was affiliated with, either at a time just before or around the time that he joined the same gang. The applicant’s response, that the car was driven by someone who was from the same group but a different division and that this incident happened at the end of 2008 which may have been a time when the Gang was trying to get more shops under their protection, does not address the Tribunal’s concerns about the lack of a cogent reason that the applicant would be targeted in 2008 by the Gang that he was affiliated with. Further, the applicant could not provide any reason why the Gang might target him in 2008. The police report of the traffic incident provided by the applicant does not mention any gang involvement or targeting of the applicant. As corroborated by the police and medical reports as well as the photos of the applicant in hospital, the Tribunal finds that the applicant was the subject of a motor vehicle accident in 2008 and he was injured and hospitalised. However, the Tribunal does not accept that it was a targeted attack against the applicant by the Gang. The Tribunal finds that the applicant has sought to embellish his claims in claiming to be the victim of a targeted attack by the Gang. This embellishment
Having carefully evaluated his evidence and responses to the concerns of the Tribunal, the Tribunal finds that the applicant’s evidence is not credible and this has lead the Tribunal to disbelieve the entirety of the applicant’s claims to have been a member of the Gang who experienced harm, including mental health problems, due to his membership of the Gang. Further, the Tribunal does not accept that the applicant sought to leave the Gang or was a person who engaged in any Gang related activities or problems. The Tribunal does not accept that the applicant will be forced to participate in the Gang or its activities on return to Malaysia. The Tribunal accepts the applicant’s evidence at hearing that he did not face harm from the police in Malaysia and does not fear harm from the police for any of his previous actions.
For all of the above reasons the Tribunal does not accept that the applicant is under threat from the Gang or police due to his previous or future Gang membership, nor that he travelled to Australia to avoid harm from the Gang or the police. The Tribunal does not accept that he suffered mental health problems due to problems related to the Gang in Malaysia.
The Tribunal does not accept there is a real chance that the applicant would suffer serious harm, including mental health problems, related to Gang membership and/or leaving the Gang, if he returned to Malaysia now or in the foreseeable future. Therefore, the Tribunal does not accept the applicant has a well-founded fear of persecution pursuant to s.5J(1) of the Act. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
In considering whether the applicant meets the complementary protection criteria set out in s.36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country of Malaysia, there is a real risk he will suffer significant harm.
The Tribunal has found that the applicant does not face a real chance of serious harm in Malaysia. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[5]
[5] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]
For the same reasons referred to above, on the basis of the principles in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm from the Gang, police or other parties, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia.
The applicant has not presented any other claims for protection and none arise on the information before the Tribunal.
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.
Alison Ryan
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 2565

20 June 2024

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