1826249 (Refugee)

1826249 (Refugee) [2024] AATA 4180 (30 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826249
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Kathleen Timbs
DATE:30 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 July 2024 at 11:12am
CATCHWORDS
REFUGEE – protection visa – Malaysia – debts to unlawful money lenders – living and medical expenses and children’s weddings – lived and worked in another city – application prepared by another person – inconsistent claims and evidence – previous entry and work – parents from another country but applicant does not hold citizenship or right of entry and residence – house sold and wife and children living in that other country – country information – moderate risk of harassment and low risk of violence – state protection available but often ineffective – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant [the applicant] a protection visa under s 65 of the Migration Act 1958 (the Act).
[In] March 2018, the applicant entered Australia from Malaysia.
On 23 April 2018, he made an application for a protection visa.
On 29 August 2018, the delegate found he did not meet the relevant criteria and decided to refuse to grant the visa.
On 8 September 2018, the applicant applied to the Tribunal for review of that decision.
On 27 March 2024, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal was assisted by an interpreter in the [Language] and English languages.
RELEVANT LAW - CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are in s 36 of the Act.
To be granted the visa, an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they must be either a person in respect of whom Australia has protection obligations because they meet the refugee criterion or complementary protection criterion, or they must be a family member of a person who meets one of those criteria and that person holds a protection visa.
The Tribunal must affirm the decision under review if it is not satisfied that the applicant meets one of these criteria.
EVIDENCE AND MATERIAL CONSIDERED BY THE TRIBUNAL
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. The most recent report is the DFAT Country Information Report Malaysia published in June 2024.
The Tribunal also considered:
·     relevant documents provided by the Department, including the applicant’s visa application and the delegate’s reasons for decision;
·     documents given to the Tribunal by the applicant and a Pre-hearing information form (PIF) completed by the applicant on 6 February 2024; and
·     oral evidence and submissions made by the applicant at hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant provided a Malaysian passport to the Department. It examined it and found that it was genuine. On that basis, the Tribunal accepts that the applicant is a citizen of Malaysia.
At hearing, the applicant told the Tribunal he was born in Malaysia and that his parents were [Country 1] citizens. The Tribunal is aware that Malaysia does not allow dual citizenship in the usual case and that [Country 1] does not allow dual citizenship for citizens of Malaysia. As the applicant is a Malaysian citizen, the Tribunal finds he is not also a citizen of [Country 1] and has no right to reside in [Country 1].
The Tribunal has no evidence to suggest the applicant has a right to reside in any other country. It is satisfied that Malaysia is the receiving country for the purposes of s 36 and s 5J.
Background
At hearing, the applicant confirmed information in the Department’s records that he was born in Sabah on the island of Borneo in [Year], which makes him [Age] years old at the time of hearing. The applicant told the Tribunal that he grew up in [Village] in Kota Kinabalu in Sabah. His parents are no longer living and he has [surviving siblings]. His older brothers live in [Country 1] and his younger brother lives in Australia.
The applicant said he is married with [children] that he said were aged from [Age] to [Age] at the time of hearing. His wife and his children were born in Malaysia. He told the Tribunal that his wife and all children went to live in a village in [Country 1] where their relatives live when he last came to Australia in 2018. Two of his children are married and two live in a home with his wife. He said that his wife is not working and none of his children are working. He said that they are very educated but they cannot find work in [Country 1]. He said he sends money to them when he is working to support them. He said that they could not find work in Malaysia because of employment preferences for Malays for ‘official work’ and because immigrants have taken less well-paid jobs. In any event, he said they are unwilling to do work that is not commensurate with their education.
The applicant has no formal education. He said that he worked from the age of about 14 or 15 as [an occupation 1] for [work sector 1] firms in Malaysia until about 2000. He said he worked as a street vendor after that until he came to Australia for the first time in 2013. He said that he had an arrangement with a shop that sold goods for the [work sector 1]. He would take the goods from the shop and pay them back by instalments. He said that there were problems with late payment and bad debts. However, he said he had no debt to the shop when he stopped working as a street vendor when he first came to Australia.
The applicant confirmed the information in the Department’s movement records that he was in Australia from August 2013 to September 2015. He said he came to Australia in 2013 because his children ‘didn’t have anything and he wanted to work and earn some money’ and that there was ‘the same problem as in 2018’.
He said he was living in Malaysia from September 2015 until he came to Australia in March 2018, except for a period of about six months after his brother died when he went to [Country 1]. He said he worked in Malaysia as [an occupation 2] in [a workplace]. He described his work as ‘[job task]’. He later told the Tribunal that he worked in two jobs at nearby [workplaces] on both day and night shifts. He said he slept only three hours per day.
The applicant returned to Australia in March 2018 and told the Tribunal he has worked irregularly in a range of [work sector 2] jobs. He was living in [City] in central NSW at the time of hearing. He said he is responsible for the support of his children because they do not work.
Refugee assessment
The criterion in s 36(2)(a) of the Act 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.
Section 5H(1) of the Act provides that a person is a refugee if he or she is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country because of a well-founded fear of persecution. Under s 5J of the Act, a person has a ‘well-founded fear of persecution’ if:
·     the person fears persecution;
·     there is a real chance that the person would be persecuted;
·     the real chance of persecution relates to all areas of the receiving country;
·     the persecution involves serious harm and systematic and discriminatory conduct; and
·     the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion.
It also provides that:
· the person does not have a well-founded fear of persecution if effective protection measures are available to the person; and
· the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.
Protection claims
Evidence at hearing
At hearing, the applicant told the Tribunal that he is afraid to return to Malaysia because he has unpaid debts to unlawful moneylenders in Malaysia. When asked, the applicant said that he was in debt because he had taken out loans before he left Malaysia to come to Australia in 2013 to support his family. At first, the applicant said he spent it on the children’s education and daily expenses. He later said that he borrowed approximately MYR 19,000 in 2011 for an operation and a similar amount in 2013 when his son married. At another time, he said he borrowed money in 2013 for his daughter’s wedding. He firstly said he borrowed more money in 2018 before he came to Australia because money was stolen from him. However, he later told the Tribunal that he did not borrow any money when he was in Malaysia between 2015 and 2018. He said he owed approximately MYR 13,000 when he came to Australia in 2013. He told the Tribunal that he thinks that he now owes approximately MYR 50,000 to 70,000 with interest (approximately $16,000 to $22,000).
The applicant firstly said that he had borrowed from ‘the bosses or companies or shops’ and that they have people he described as gangsters to collect the debt from him. He told the Tribunal that he is afraid of them and that they are still looking for him. He later said he borrowed some money from Chinese moneylenders. He said he started borrowing money from unlicensed moneylenders in about 2000 for living expenses. The applicant could not recall the name of the person to whom he owed the debt.
The Tribunal asked if he experienced any danger from the debt collectors before he left Malaysia for Australia in 2013. He said that he was living in [Village] and that the moneylenders knew where he was but that nothing happened to him.
The applicant said he made some payments while living in Australia from 2013 to 2015 and that he still owed MYR 37,000 (approximately $11,500) when he returned to Malaysia. He firstly said that he went to live in [Village] at his family home but did not encounter the debt collectors because he was in hiding. He then said that he was mistaken and that he went to Kuala Lumpur and worked as [an occupation 2], rather than living with his family in [Village], because his children were afraid of the debt collectors. The applicant said he did not encounter the debt collectors in Kuala Lumpur because they did not know that he was there. He said he worked there to save some money to come back to Australia. He said he had a lot of expenses for his family and for himself and did not make any payments on the debts. He then said he had few expenses for himself because he could sleep in the [workplace] room and he could buy food close by.
The Tribunal asked him if it was dangerous for him in Kuala Lumpur and he said there was some danger but he did not often go out of his accommodation at his workplace. He said he had two jobs and worked 24 hours a day with three hours sleep. He bought food from nearby restaurants. The applicant said he worked for a [product 1] company and a [product 2] company but could not recall the names of either business.
The Tribunal noted the applicant’s evidence is that nothing had happened to him when he owed money in 2013 and when he lived in Malaysia in 2015 to 2018. It asked the applicant what made him believe that he would be harmed if he returned to Malaysia in the future. He told the Tribunal that the interest has increased the amount he owes. He said that, because he had not made payments for some time, the ‘gangsters’ would want him to pay the full amount owed in a lump sum and they would harm him if he could not make the payment.
The applicant said that he sold his family home in 2019 and paid approximately MYR 2,000 off the debt. The balance was used for his wife and children to go to live in [Country 1]. He said that there was no threat of harm to his family because they did not know his children and that the moneylenders had done nothing that triggered the sale of the property. He then said he had been paying some money off the debt while in Australia but did not have work and could not make payments. He said he wanted his family to move to [Country 1] because he was worried the debt was getting so large that the moneylenders would harm them.
The applicant said he would be physically harmed if he returned to live in [Village] or in Kuala Lumpur because he had missed so many payments. He said he would be caught by the moneylenders in his village and could only avoid the debt collectors in Kuala Lumpur by hiding and not going out from his accommodation as he had done between 2015 and 2018.
Visa application
The applicant’s visa application states that he ran a business with his brother and, because they supported the ‘non-government party, they ‘did not get the support from government’ and had to pay GST’. It states the business started accruing debt and the people from whom they borrowed money ‘keep looking and disturbing us’. The statement claims specifically that the creditors broke into ‘our house’, damaged a car and that the applicant was beaten on one occasion. The application states that the police ignored their complaints and ‘things got worse’. It states that they did not attempt to move to another state because of the business and because the creditors have links throughout Malaysia.
Pre-hearing information form
The applicant’s PIF states that the applicant was ‘convinced by my friend to take a loan from these loan sharks’ and did not know they could manipulate the interest rate ‘causing me to be in debt with them 10 more times than the actual money that I took’. It states he tried to negotiate the repayment rate to less than MYR 1000 per month and that his business was ‘in crisis’; that he had to fire an employee and that his business collapsed. It states they attacked him in a car park and at his home. It states that the police would not take a complaint and he moved to another state but the loan sharks found him.
Country information
The DFAT report contains the following information about the operation of unlicensed moneylenders in Malaysia:
Victims of Loan Sharks
3.155    Usury is illegal. The Moneylenders Act (1951) requires that moneylenders have a licence and not charge interest rates above 18 per cent for an unsecured loan, which must not compound. Loan sharking is also covered under section 427 of the Penal Code, which prohibits ‘committing mischief’ and can carry a five-year prison term.
3.156    In practice, loan sharks or ‘pay-day financiers’ (unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), operate openly in Malaysia and charge interest as high as 50 per cent. Advertisements for cash loans appear on public property, including lamp posts and utility boxes. Loans offered through social media or smartphone apps are also common.
3.157    Motivations for taking out loans vary and can include gambling and economic disruption caused by the COVID-19 pandemic. Others take out loans for to finance small business which, if the business fails, sometimes become unsustainable debts. Loans are also made by people rejected by banks or who find bank decision-making slow or to require a lot of paperwork.
3.158    Those who do not repay loans face serious harassment. On rare occasions, victims of loan sharks have faced violence or have been sold into slavery. It is common for borrowers to have their house splashed with red paint, which is generally culturally understood to mean that they have not paid debts, causing public shame. They sometimes have their picture or pictures of their identity documents posted on telegraph poles, and families are sometimes harassed. Loan sharks sometimes hold victims bank cards or passports as collateral. Loan sharks sometimes continue their harassment even after loan has been paid off.
3.159    State protection is available to victims of loan sharks, but it is often ineffective. Being the victim of a loan shark is often perceived as a moral failing, and some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them. Formal credit agencies can consolidate loan shark debts and provide payment plans, providing some options for victims.
3.160    DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available but not always effective.
Assessment
The applicant told the Tribunal he did not complete his visa application or PIF. He said that a friend completed the documents for him after he told him what to write. The Tribunal read out the claims in the applicant’s visa application and the applicant told the Tribunal that the information was correct. It then read out the claims in the PIF and the applicant said again that the information was correct. The Tribunal noted that the evidence the applicant gave to the Tribunal was inconsistent in material ways with the information in each document and that the information in each document was inconsistent in material ways with the information in the other document.
In particular, the Tribunal firstly noted that both documents say that the applicant came to Australia after closing his business but the applicant’s evidence at hearing was that he was working as [an occupation 2] before coming to Australia and completing the form. The applicant repeated that he was [an occupation 2] before coming to Australia in 2018 and that the business referred to in the documents was the business he operated before coming to Australia in 2013. He said that he had paid the money owed by the business. He said he had a debt in 2013 that has not been repaid because of the expenses for weddings and living expenses and medical expenses. The applicant did not explain why his visa application and PIF referred to the relevant debts arose from a business operated by him or by him and his brother if this was not the reason for the debt that is relevant to his claim for protection.
The Tribunal also noted that he told the Tribunal at hearing that he was not harmed by debt collectors but the visa application says that he was beaten on one occasion and that the PIF states that he was beaten on two occasions. He said that he was harmed by the debt collector on two occasions and the Tribunal then asked why he did not give that evidence earlier at hearing. He then said that he wasn’t beaten and that the debt collectors had come to his house and wanted to harm him but he was not there and spoke to his children. He said that was when he sold the house. He confirmed that he was not beaten.
In the Tribunal’s view, the applicant was a very poor historian. He did not answer questions directly and often qualified his evidence when pressed by the Tribunal and sometimes changed it. For example, he firstly said the information in the visa application that he operated a business with his brother was true and then said it was not. His evidence also lacked detail that should have been available to him. For example, he could not recall the names of his employers in Kuala Lumpur.

The Tribunal takes account of the applicant’s lack of education and the difficulty of presenting evidence in a hearing through an interpreter about events that happened some time ago. It also notes his claim that he is ‘a very old man’. However, it does not find those matters fully explain the inconsistencies in his evidence or the lack of detail. It finds he was not a generally credible witness.
As a low-income earner, the applicant was not unlikely to borrow money from an unlicensed moneylender to meet expenses for which he could not budget. Taking account of the country information, if that were the case, he might face ‘a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters’ if he were to return to Malaysia. However, in the Tribunal’s view, unexplained inconsistencies in his evidence cast doubt on key aspects of his protection claim.
Firstly, at hearing, he attested to the truth of the information in the visa application and the PIF that he owes debts because of problems with a business operated by him or by himself and his brother. When questioned about the inconsistency, he resiled from that evidence and repeated the evidence that the debts were for family expenses. However, he did not explain why he proffered that evidence in the first place. In the circumstances, the Tribunal does not accept the evidence that he borrowed money to meet expenses for his family. It is not satisfied that he owes a debt to unlicensed moneylenders in Malaysia.
Secondly, the applicant attested to the truth of inconsistent facts in the two documents about the number of times he was assaulted by debt collectors. He chose one version of events (that he was beaten twice) when the Tribunal pointed out the inconsistency. However, he resiled from that evidence when the Tribunal pointed out his evidence was inconsistent with his evidence at hearing that the debt collectors had not threatened or assaulted him in Malaysia. He then gave entirely new evidence of a visit to the applicant’s family home in 2019. The Tribunal notes this was inconsistent with evidence given earlier that the debt collectors had done nothing in 2019 to trigger the sale of the family home and his family’s move to [Country 1].
The Tribunal does not accept any evidence of past harm or threats to the applicant or his family because of the significant and unexplained inconsistencies between the different versions of events provided by the applicant. It infers that the inconsistencies arise because the evidence is untrue and the applicant and his family did not suffer any harm from moneylenders before he came to Australia. The applicant proffered the evidence of past harm to support the contention that he would suffer harm from moneylenders if he returned to live in Malaysia. Without other convincing evidence, the Tribunal finds that would not be the case.
The applicant’s evidence is that he last lived in Kuala Lumpur and worked as [an occupation 2] for more than a year. The Tribunal infers he would live there to find work if he were to return to Malaysia. The Tribunal suggested that he could safely return to Kuala Lumpur to live and work if, as he said, he had obtained employment and accommodation there and had lived without interference from the moneylender for a lengthy period. He said he avoided the attention of the moneylender by working day and night and not venturing away from his workplace except to eat. A workplace is not a private place and a person is more visible there than in a private home. The Tribunal finds this evidence is also inconsistent with his contention that there is a real chance of serious harm to himself from unlicensed moneylenders who can locate debtors throughout Malaysia.
Conclusion
For the reasons outlined above, the Tribunal is not satisfied that the applicant genuinely fears serious harm, or that there is a real chance of serious harm, from moneylenders if he were to return to Malaysia. He therefore does not meet the definition of a refugee and does not satisfy the refugee criterion in s 36(2)(a).
Complementary protection assessment
A person who is not a refugee may satisfy the criterion for a protection visa in s 36(2)(aa) if the Minister (or Tribunal) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
Section 36(2A) relevantly provides that a person will suffer ‘significant harm’ if, among other things:
· the person will be subjected to cruel or inhuman treatment or punishment; or
· the person will be subjected to degrading treatment or punishment.
Section 5(1) defines cruel or inhuman treatment or punishment and degrading treatment or punishment.
Assessment
The Tribunal has found that there is no real chance that the applicant would suffer serious harm from unlicensed moneylenders if he returned to Malaysia. For the same reasons, it finds there are no substantial grounds for believing that there is a real risk of significant harm from unlicensed moneylenders as a necessary and foreseeable consequence of the person being removed from Australia. In that case, he does not meet the complementary protection criterion in s 36(2)(aa).
CONCLUSION
The Tribunal has found that the applicant does not meet the criteria for a protection visa in s 36(2)(a) and (aa).
The Tribunal has no evidence that the applicant is a member of a family unit of a person who satisfies those criteria and he therefore does not meet the criteria in s 36(2)(b) and (c). In that case, the Tribunal will affirm the decision under review to refuse to grant the protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kathleen Timbs
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 4180

30 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

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