1824732 (Refugee)

1824732 (Refugee) [2021] AATA 5623 (19 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824732
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Tamara Hamilton-Noy
DATE:19 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 October 2021 at 11:01am
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Shia Muslim – hunted by Sunni authorities after promoting Shia Islam – threats of harm by people in his village – inability to explain Shia religious practices – lack of understanding of Shia prayer practices or religious events – three years spent in Australia without practicing claimed religion – vague and inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (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 dependant.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 August 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant arrived in Australia [in] January 2018 and applied for a protection visa on 26 March 2018.
A delegate of the Department refused the applicant’s application on 20 August 2018.
Claims and Evidence
Evidence before the Department
In his written protection application, the applicant stated that he was born in [Town 1], Johor and that both parents are Malay citizens. The applicant stated he is a Malay Muslim and described his occupation as a general manager. He stated that from [year] to ‘current’, he had resided in [Town 1], Johor. He stated that he completed up to Form 5 and that he then had worked as an [Occupation 1] between 2006 and 2012 and then as a manager for a [company] from 2012 onwards.
In his written protection application, the applicant stated that he left Malaysia because he was hunted by Sunni authorities for actively promoting Shiism. They had tried to arrest him a few times. Sunni authorities had banned Shiism and he was worried and felt unsafe and so decided to seek protection in Australia. The applicant stated that, if he returns to Malaysia, he will keep moving from place to place to avoid being arrested and it will cost him money to keep moving and he can’t stay for long in one place. The applicant stated he did not experience harm in Malaysia and he did not try and move to another area of Malaysia.
The applicant stated that, if he returns to Malaysia, he believes he will be harmed or mistreated. He thinks most of the Shiite community feel unhappy and unsafe. Since most of their camps are raided, most of them pray at home. He is unable to pray at a Sunni mosque because he is worried about being criticised by surrounding people. He does not believe the authorities will protect him because Shiism is considered to be illegal and they don’t want Sunnis to be misled. He could not relocate because he has tried moving within his state but since they kept hunting him, he doesn’t want to take any risk. There are no states in Malaysia that welcome Shiites.
A delegate of the Department was satisfied that the applicant fears persecution for reasons of his religion. The delegate considered relevant country information and found from this information that Shias live free from discrimination and violence on a day-to-day basis and that, while some Shias may face interference and difficulty practicing their religion, the delegate did not accept this amounted to persecution. The delegate noted that enforcement efforts generally focused on conversions and proselytisers, not assembly or worship. The delegate did not accept the applicant was preaching Shia Islam and found he was not a person of interest to the Malaysian authorities. The delegate was not satisfied there was a real chance the applicant would face serious harm in Malaysia because of his religion and found he was not a refugee. The delegate found the applicant was not owed complementary protection as they were satisfied he could obtain, from an authority of the country, protection such that there would not be a real risk he would suffer significant harm.
Evidence before the Tribunal
On 23 August 2021, the Tribunal wrote to the applicant stating that it had considered the material before it and was unable to make a favourable decision on that information alone. The applicant was invited to a hearing on 7 September 2021.
The Tribunal hearing on 7 September 2021 was held by MS Teams video. The applicant was not represented at the hearing and the Tribunal was assisted during the hearing by a Malay interpreter. The audio and video were clear throughout the hearing and the Tribunal was satisfied from the answers given by the applicant that he was able to give evidence and present arguments throughout the hearing.
Findings
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 (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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis (Assessment, reasons and findings)
The applicant travelled to Australia on a Malaysian passport and has at all times maintained he is a citizen of Malaysia. The Tribunal hearing was conducted with the assistance of a Malay interpreter. The Tribunal accepts the applicant is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality.
The applicant claims to fear returning to Malaysia for reasons of his religion. The Tribunal is mindful that religious practice is an individual practice and may be expressed differently by different persons. The Tribunal is also mindful of the difficulties that an unrepresented applicant may have at hearing, that the applicant may have been nervous at hearing and that issues related to the use of interpreters and the stress of being away from home and family may also impact the way an applicant gives evidence to the Tribunal. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility[1] and has taken such matters into account in assessing the applicant’s claims. The Tribunal is also mindful that it should adopt a reasonable approach in making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that, ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[2]
[1] AAT, Guidelines on Assessment of Credibility at
[2] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, para 196.
The Tribunal has considered the overall consistency of the applicant’s evidence and coherency of his account. The Tribunal has concluded that, because of the inconsistencies in the applicant’s evidence and for other reasons as set out below, it does not accept that the applicant fears harm upon return to Malaysia as a Shia Muslim.
Firstly, the applicant has given differing evidence about his places of residence in Malaysia and the reasons for this. The applicant was asked during the hearing about where he had lived in Malaysia. He gave evidence that he was born in [Town 1] outside of Johor Bahru, that he had lived in Johor Bahru for 15 years with a friend and had worked for himself in [Occupation 2] in Johor Bahru. He gave evidence that he had sold the business to a friend a year before leaving Malaysia after running into difficulties with the business, had returned to [Town 1] where his mother, brother and sister resided and had worked on other people’s land in [Town 1] and was paid for this. He stated that he had not initially worked for one to two months after he returned to [Town 1] and his mother had supported him and he had then looked for work. He had lived with his mother and younger sister; he has another sister and an elder brother who is studying in [another country].
In contrast to this evidence, later in the hearing when the Tribunal asked about the reasons for claiming protection, the applicant gave evidence that after people had made a police report about he and his friends praying, he had started moving around to different places. He described this as being ‘around the same area but in different suburbs’. He then claimed at hearing that after he faced ‘a lot of persecution’ for praying as a Shia, he started going to different states in Malaysia. This included one place where he was subject to a ‘police bust’, where the police came and he escaped with two other friends. He claimed that after this he tried to return back to his village but faced threats and persecution. As to where he had moved and lived, he stated that he had moved to Selangor, Perak and Pulau Pinang; he had not spent long in any state, only one to two months, before returning back to the same state, and this lasted about a year.
The applicant’s evidence at hearing about where he resided in Malaysia differed from his written protection application which had stated he lived at one address in [Town 1] and that he had not tried to live in another part of Malaysia, but also later in the written protection application that he had tried moving within his state but people kept hunting him. The applicant gave evidence at the hearing that a friend had completed the written protection application, that the claims had been translated back to him and that he was comfortable that what had been written in the application had been correct. The Tribunal considered that the applicant’s evidence was internally inconsistent in the written protection application and was again internally inconsistent at hearing. The Tribunal found that the applicant claimed to have relocated interstate only at the point in the hearing when he was giving evidence of the harm he claims to have experienced in Malaysia. The inconsistent evidence given by the applicant about where he was living in Malaysia leads the Tribunal to doubt that he had to move around Malaysia because he feared harm due to practicing as a Shia Muslim.
Secondly, the applicant claimed in his written protection application that he had not experienced harm in Malaysia but also that he was hunted by Sunni authorities for promoting Shiism. In contrast, at the hearing the applicant gave evidence that when he returned to [Town 1], he started receiving threats and persecution from people in his village because of the religion he was practicing. The applicant told the Tribunal at the hearing that in the community where he lived, they threatened to beat him and said they would kill him. The Tribunal noted the applicant had given evidence of praying in private and asked how people would know he was practicing Shia Islam. The applicant stated in response that, when he prays by himself there is no issue, but they needed to meet the Imam who leads the whole group to teach them and this was a problem; he then stated that because he was ‘running around’ he never got to gatherings. The Tribunal asked how, if the applicant had never attended gatherings, people would know he was a Shia Muslim. He stated in response that once he gets into an argument, people can see he is different. The Tribunal asked the applicant where he was when people around him threatened to beat and kill him and he stated this was in [Town 1] where he started trying to spread the Shia religion; this had caused him to move to other places and then he met with threats again. He claimed that almost everywhere he went, he was faced with threats.
The Tribunal considers it implausible that, if the applicant had faced the range of threats he claimed to have faced in Malaysia, including threats to kill, he would not have included these claims in his written protection application. The Tribunal accepts that the applicant’s friend completed his written protection application, that the applicant’s friend had translated his claims back to him and the applicant knew what was in the protection application. The applicant’s failure to outline the significant threats he states he experienced in Malaysia, and the differences in his evidence as to whether Sunni authorities or people in his village sought to harm him because of his religious practice, causes further doubt for the Tribunal that the applicant practiced Shia Islam in Malaysia or that he was threatened or faced harm in Malaysia because of his religious practice. Further, the applicant claimed that people would know he was practicing Shia Islam because they attended a group with the Imam, however, then claimed not to have attended such gatherings. The applicant was unable to explain in a plausible manner how people became aware of his Shia practice and his inability to do so adds further doubt for the Tribunal about his claims.
Thirdly, the applicant’s evidence about his practices as a Shia Muslim was given in a vague manner that lacked any detail. For example, when asked about the differences between Shia and Sunni practice, the applicant stated that ‘maybe the way they do prayers is different’ and that he ‘believes they are closer to Prophet Ali not Prophet Mohammed’. He incorrectly described Shia Muslims as praying two times a day. He was asked about differences in day to day practice and described that Sunni pray at a mosque and Shia pray in a gathering. He was unable to explain the significance of Ashura for Shia Muslims. or describe any other significant events celebrated by Shia Muslims.
When asked about what had attracted him to Shia Islam, the applicant stated that it feels more peaceful. The Tribunal asked the applicant to describe in more detail why he would convert from Sunni to Shia Islam and he stated in response that it is hard to describe and he feels very peaceful and it is easier to practice Shia Islam. As to what is more peaceful about Shia Islam, he claimed that he is closer to God, life is easier and there are not too many rules and restrictions. As to how life is easier as a Shia Muslim, he stated that his spirit or soul is more peaceful. As to what he can do as a Shia Muslim that he could not do as a Sunni Muslim, he stated that Shia can marry many times, as there is the practice of mut’ah. The applicant was unable to describe, apart from praying, what had changed in his religious practice after he claims to have converted to Shia Islam. When asked by the Tribunal, he stated that it was not so much in his practice as his belief that was different.
The applicant claimed that, after converting, he started teaching friends about Shia Islam. The Tribunal asked what specifically he was teaching to friends and he stated that he told them Shia Islam is easier and is closer to God. The Tribunal observed that the applicant was having difficulty explaining Shia Islam to the Tribunal apart from general comments such as it being easier, and couldn’t explain in any detail what attracted him to Shia Islam and how the practice is different, and the Tribunal was having difficulty understanding how the applicant would be able to promote the religion to friends. The applicant stated in response that he feels it brings peace to his soul and that in Malaysia they could not accept Shia Islam and everything had to be done in secret.
The Tribunal asked how the applicant practiced Shia Islam in Malaysia apart from praying in private and he stated in response that the prayer is almost the same, but when he tried to spread the religion to his friends there was ‘too much resistance’.
The Tribunal is mindful that religious practice is an individual experience and that it may be practiced by private prayer alone, or by private prayer in combination with more public displays of religious identity. However, the applicant’s inability to explain his religious practice as a Shia or what had attracted him to Shia Islam in any detail, in addition to his lack of understanding of Shia prayer practices or religious events, add further doubt for the Tribunal that the applicant converted to Shia Islam in Malaysia or that his experiences in Malaysia were as he claims.
Lastly, the applicant has been in Australia some three years now and gave evidence to the Tribunal that he is still looking for somewhere to practice his religion in Australia. When the Tribunal observed that the applicant had been in Australia over three years and had not been practicing his religion in Australia, the applicant stated yes, he was still trying to get friends to form a group.

The Tribunal noted at the commencement of the hearing that the Department may have accepted matters that, after hearing from the applicant, the Tribunal may not accept. The Tribunal put concerns it had about the applicant’s evidence during the hearing. The Tribunal noted during the hearing that the applicant had been in Australia for three years and had not practiced his religion apart from praying; that he had claimed to have left Malaysia because he is a Shia Muslim but did not know what Ashura is and incorrectly claimed that Shias pray twice a day. The Tribunal noted that these matters caused doubt for the Tribunal that the applicant practices Shia Islam or that he identifies as a Shia Muslim. The applicant stated in response that he has only learned the basics of Shia Islam and it was very difficult to learn the religion because he was running around and his friends were caught and imprisoned. He feels that in Australia he can practice his religion freely and find someone to teach him.
The Tribunal also noted during the hearing that the applicant’s evidence had varied between his written claims to have lived from [year] until he left Malaysia in [Town 1] and his oral evidence to the Tribunal at hearing that he had lived for 15 years in Johor Bahru and one year in [Town 1] with his mother before leaving Malaysia, and later in the hearing that he was moving around from state to state. The Tribunal observed that the differences in his evidence as to where he lived in Malaysia also caused doubt for the Tribunal that the applicant was practicing Shia Islam or moving around to avoid any harm because of conversion to Shia Islam. The applicant stated in response that from what he can remember when he wrote the application, it was probably because of his beliefs and his practice and these are the reasons he remembers.
The Tribunal also noted during the hearing that the discrepancies in the harm the applicant stated he had experienced in Malaysia also caused the Tribunal doubt that the applicant was practicing as a Shia Muslim or that he faced harm because of his religion in Malaysia. The applicant stated in response that he is practicing Shia Islam and it is not accepted in Malaysia. He stated that, from what he knows, the problem was from people trying to learn Shia and spread their religion, which causes problems from the government and people around them. He stated that he left Malaysia because he was not in peace and he came to Australia to start a new life.
Having regard to the inconsistencies in the applicant’s evidence, in particular inconsistencies in the harm he claims to have experienced in Malaysia as a Shia Muslim, his level of knowledge of Shia practices and the three years he has spent in Australia without pursuing the practice of his claimed religion, the Tribunal does not accept the applicant converted to Shia Islam while in Malaysia, that he is practicing as a Shia Muslim while in Australia or that he would practice Shia Islam if he returns to Malaysia now or in the reasonably foreseeable future.
For the same reasons, the Tribunal does not accept the applicant actively promoted Shia Islam in Malaysia, that he was teaching friends about Shia Islam or that he tried to spread Shia Islam. The Tribunal does not accept the applicant was hunted in Malaysia by Sunni authorities because he was promoting Shia Islam, that they tried to arrest him a few times, that people made a police report about he and his friends praying, that there was a police bust where the police attended and the applicant and two friends escaped, that he received threats and persecution from people in his village, that people threatened to beat him and kill him or that everywhere he went he was faced with threats. The Tribunal does not accept the applicant tried relocating within his state or in other states such as Selangor and Perak, that he was moving around to avoid harm or that his friends were caught and imprisoned.
The Tribunal finds that, if he returns to Malaysia now or in the reasonably foreseeable future, the applicant would return to live with his mother in [Town 1]. The Tribunal has not accepted the applicant would practice as a Shia Muslim upon return to Malaysia. The applicant did not raise any other grounds on which he fears returning to Malaysia. The Tribunal finds there is not a real chance the applicant faces serious harm upon return to Malaysia, now or in the reasonably foreseeable future, because of his religion or for any other reason. 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).
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 (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 reasons set out above, the Tribunal is not satisfied the applicant faces a real risk of significant harm if removed from Australia to Malaysia. 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.
Tamara Hamilton-Noy
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.
…

[2021] AATA 5623

19 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice