1830185 (Refugee)

1830185 (Refugee) [2024] AATA 4167 (5 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Abu Siddque
CASE NUMBER:  1830185
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Justin Meyer
DATE:5 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 05 September 2024 at 10:18am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – religion – an Ahmadi Muslim – beliefs are viewed as heretical by religious authorities – there are not effective protection measures available – applicant’s fear of persecution is well-founded – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 8 June 2018. The delegate refused to grant the visa on the basis that:
“The applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant”
The applicant appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Malaysia and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
Identity
The applicant’s identity is established as a [age]-year-old male, as evidenced by a Malaysian passport. Thus, there is evidence, before the Department and the Tribunal confirming identity and nationality.
The applicant’s claims to the department:
The applicant’s claims were as follows:
·He will suffer[ ] and struggl[e] to make a living, because there are no employment opportunities for graduates, if he were to return to Malaysia.
·The applicant has claimed that he cannot return - the authorities will not help him, because of the political issues and corruption. He claims that he cannot say anything about the government because he might be imprisoned due to the lack of human rights, if he were to return to Malaysia.
The applicant’s written claims to the Tribunal:
The applicant’s claims were as follows:
Ahmadiyya Muslim Community in Malaysia faces significant challenges and
discrimination, primarily due to theological differences with mainstream Islamic
teachings, which are upheld by the state and religious authorities. Here are some of
the key troubles faced by the community:
Legal and Official Recognition
• Non-Muslim Classification: In Malaysia, the Ahmadiyya community has been
officially classified as non-Muslim by the Department of Islamic Development
Malaysia (JAKIM) and other state religious authorities. This classification is
based on their belief in Mirza Ghulam Ahmad as the Messiah and Mahdi, which
is seen as contrary to the mainstream Islamic doctrine that Prophet Muhammad
is the final prophet.
• Religious Status: As a result, Ahmadi Muslims are often not recognised as
Muslims by the state, affecting their legal status, including issues related to
marriage, burial rites, and identity documents.
Restrictions on Religious Practices
• Place of Worship: The community faces restrictions on their places of worship.
In some instances, Ahmadi mosques have been sealed or shut down by
authorities, preventing community members from gathering for prayers and
religious activities.
• Publications and Teachings: Ahmadiyya religious literature and publications
are often banned or censored. The distribution and teaching of their religious
materials are restricted, limiting their ability to educate their followers and
conduct religious outreach.
Social and Economic Discrimination
• Social Ostracism: Ahmadi Muslims in Malaysia often face social ostracism.
They may be shunned by mainstream Muslims, affecting their social
interactions, marriage prospects, and community participation.
• Economic Discrimination: The stigma associated with being an Ahmadi can
lead to difficulties in securing employment or conducting business. In some
cases, Ahmadi Muslims may face harassment or discrimination in the workplace.
Harassment and Intimidation
• Harassment: Members of the Ahmadiyya community have reported instances
of harassment and intimidation by religious authorities and certain segments of
society. This can include threats, surveillance, and pressure to renounce their
beliefs.
• Forced Re-education: In some cases, Ahmadi Muslims have been subjected
to forced "re-education" programs aimed at converting them to mainstream
Islam. These programs are often coercive and can involve psychological
pressure.
Legal Actions and Court Cases
• Legal Persecution: There have been cases where Ahmadi Muslims have
faced legal action for practicing their faith, including charges related to
blasphemy or heresy. The legal framework in Malaysia, which includes both
civil and Shariah law, can be used to target individuals and groups that deviate
from the state-sanctioned interpretation of Islam.
• Restrictions on Movement: There have been reports of Ahmadi Muslims
facing restrictions on travel or being prevented from attending international
religious gatherings.
Lack of Protection
• Limited Legal Recourse: The legal system in Malaysia offers limited recourse
for the Ahmadiyya community to challenge discriminatory actions or seek
protection. The state's endorsement of a particular interpretation of Islam often
leaves minority groups like the Ahmadis with little support from the judicial
system.
The situation of the Ahmadiyya community in Malaysia has garnered international
attention, with human rights organisations advocating for their rights. Reports from
bodies like Human Rights Watch, Amnesty International, and the United States
Commission on International Religious Freedom (USCIRF) have highlighted the
community's plight, calling for greater protection and recognition of their rights.
The troubles faced by the Ahmadiyya community in Malaysia reflect broader
challenges related to religious freedom, minority rights, and the intersection of state
and religion in governance. In Malaysia, Islam is the official religion, and the
government, alongside Islamic religious authorities, maintains a stringent
interpretation of Sunni Islam.
Marriage and family life are also impacted, as Ahmadi marriages are not recognised
by Islamic courts, complicating matters of inheritance, custody, and legal status.
Ahmadis often have to go through civil courts, which do not provide the same rights
as the Sharia courts that govern the personal and family matters of recognised
Muslims.
The applicant’s oral evidence in the hearing was as floows:
He arrived in Australia in 20218 and knew nobody the country. He is married with two children. He is from Johor Bahru.
The applicant told the Tribunal that he is a Malay-speaking Muslim, and he had worked in various roles in Malaysia including at a warehouse.
He has [a] brother, and [a] sister and his mother in Malaysia. His father passed away.
His application to the department was filled out by a “friend of a friend” who her never saw again. He did not know the contents of the form until his wife pointed them out to him. It was completely different to his experience.
The Tribunal asked the reason why he came to Australia under an ETA. He said it was to get protection. The reasons were two-fold: he was looked down on by his wife’s family and he “followed Ahmadi.” Before he married in 2016 he hid it from her family.
His wife’s family found out and do not accept that his beliefs are the correct way. They asked him to leave his wife. They are Sunni Muslims.
He described the argument he had with his wife’s family.
The Tribunal enquired as to the difference between Ahmadi Muslims and other Muslims. He spoke of the faith’s founder Mirzam Ghulam Ahmad. His message was that you cannot do abuse like other Islam. He was “a saviour”.
In his family only he is an Ahmadi. In Malaysia people are Sunnis he said. His parents and siblings were Sunni Muslims.
I asked how he became an Ahmadi Muslim. He said that he followed a friend into it. He was a man named [Mr A] who he had met after finishing school in Malaysia at around [age] to [age] years old. They met at [Johor] Bahru. He knew him as an [ex-colleague].
[Mr A] brought him to a place where there was a gathering. He was invited to an Ahmadi Mosque.
He has attended Ahmadi Mosques in Malaysia and Australia. In Australia he could not attend as much because of family and work commitments. The mosque is some [distance] from his home. In Malaysia he went three times a month.
The Tribunal enquired as to what had attracted him to Ahmadi Islam. He said there was no difference between the Ahmadi and the Sunni in Malaysia. Ahmadis rejected violence. The religion department in Malaysia rejected it as “incorrect”. He said the faith originated in India.
The applicant’s parents in law said get divorced. However, as his father and mother had divorced, he did not want that.
His wife is not an Ahmadi but she can accept him. He said he was afraid when his parents in-law requested that he divorce, but he did not want his children to have divorced parents. I asked then what was there to fear. He said that if he returned the parents in-law will raise matters with the religious Affairs Department. They said that they would do so. They were afraid that his children would follow him incorrectly.
Already his eldest son is an Ahmadi.
He agreed that it was illegal to be an Ahmadi in Malaysia.
If he had to go back to Malaysia he would attend an Ahmadi Mosque, but it would make him uncomfortable.
He named the location of his Mosque in Australia. It takes him [deleted] to get there from his home. Last month the mosque asked him to go to a Sydney gathering of Ahmadis, but he could not go due to child caring duties. He would liked to have gone.
Returning to the topic of his fears he said that he would be afraid in Malaysia as he had been told Ahmadis are not Muslims. He had been harassed by someone saying he had incorrect belief. Friends had surrounded him and told him this too. If he returned they will raise the matter with the religious affairs department. While praying once in Malaysia people shut the door downstairs and locked them in. They went upstairs and stopped the worshippers from praying. These were local residents. A religious officer came and checked while the applicant was there.
These events occurred in 2014, 2015 and 2016.
At my request he could name the Imam of his congregation in Australia. He named his prayers and said that he did not eat pork and did not eat haram things or drink alcohol. He expressed a desire to make the pilgrimage (Haj) to Mecca.
I noted that there was a man who had proselyted to him. He said he would encourage his son to practice his faith. If he had to go to Malaysia he would tell people, but it depends on them as to whether they respond.
At the Tribunal’s request the applicant arranged for a letter from his mosque that stated that he was a worshipper there and it was signed by an Imam.
Country information and analysis
It is evidence that there are issues for some Ahmadi Muslims in Malaysia. DFAT describes the situation as follows[1]:
[1] DFAT Country Information Report Malaysia, 24 June 2024
Ahmadis
3.70
Ahmadis are an Islamic group founded by Mirza Ghulam Ahmad in the 19th century in Punjab, India. The US Commission on International Religious Freedom estimates there are 2,000 Ahmadis who are Malaysian citizens and a further 5,000-6,000 who are Pakistani refugees in Malaysia. Ahmadis in Malaysia have faced discrimination, arrest and other barriers impacting their right to worship. Their faith is regarded as a ‘deviant’ strand of Islam by state and federal religious authorities.
3.71
Ahmadis in Malaysia have been the subject of several fatwa, beginning with a 1975 fatwa by the Selangor Fatwa Council that declared Ahmadis were ‘not Muslims’ and recommended they be denied privileges afforded to Muslims in Malaysia. In 1998, the state of Selangor issued another fatwa declaring the group to be ‘kafir’ (infidels) and banning four books concerning the Ahmadi faith. These fatwa by Malaysian religious authorities have been the basis for arrests, detention and blocking of access to religious sites of members of the Ahmadi community.
3.72
In July 2018, the Malaysian High Court ruled that the Religious Affairs Department of Selangor had no authority over Ahmadi Muslims, and that Ahmadis were not covered under syariah, as the 1975 and 1998 fatwas had ruled that Ahmadis were ‘not Muslims’. In August 2020, the Court of Appeal upheld the decision and sent the case back to the High Court to determine the individual beliefs of the 39 people originally charged by the Selangor religious authority. If it is determined by the High Court that they were (Sunni) Muslims who converted to Ahmadis, rather than Ahmadis from birth, they will fall within the jurisdiction of Islamic authorities and may be charged with Sharia offences. As far as DFAT is aware, the case had yet to be resolved at the time of publication.
3.73
While the 2018 Malaysian High Court ruling that Ahmadi are not Muslims protects them from prosecution by Islamic authorities, it also means they are not ‘Malay,’ and thus not entitled to Bumiputera advantages or the right of succession or inheritance under Islamic Law. Furthermore, they will be forbidden from proselytising, and from using the 20 to 40 terms reserved for Muslims such as ‘Allah’.
3.74
DFAT assesses that Ahmadis face a low risk of societal discrimination and a moderate risk of official discrimination, in that religious authorities may prevent them from being able to worship freely or charge them with religious offences if they are determined to have converted from (Sunni) Islam. Proselytising or promoting Ahmadi Islam can result in arrest or other forms of harassment by state authorities.
…
‘Islamisation’
3.49
In recent decades, local and international observers have noted the increasing influence of conservative Islamic ideas in Malaysian politics and society, a phenomenon described as ‘Islamisation’. The influence of conservative Islamic parties on Malaysia politics has been especially prominent since the defeat of the BN coalition in 2018 and the electoral success of the PAS.
3.50
From the 1990s onwards, PAS has established several thousand kindergartens and Islamic schools called tahfidz (Quran memorisation schools), which has increased grassroots support for PAS (though this is not the only factor). A 2022 Muslim Youth Survey by Merdeka Center, an opinion research firm, found that 82 per cent of Muslim youths aged 15-25 agreed that the Quran should replace Malaysia’s current Constitution, up from 72 per cent in 2010. The survey also found the proportion of Muslim youths attending religious schools had increased from 48 per cent in 2010 to 60 per cent in 2022.
3.51
Local media has reported rising conservatism amongst Malays, especially young people. There is also evidence of decreasing tolerance towards sexual and religious minorities on religious grounds (see LGBTQIA+ community). International media reported in 2022 that despite the progressive tendencies of the multi-ethnic coalition of the Anwar Government, it was under pressure to respond to the values of conservative Islamic voters and parties.
3.52
Malaysia restricts the rights of followers of any branches of Islam other than Sunni, with those following Shi’a or other branches subject to arrest for deviancy. Shi’a Islam, Ahmadiyyah and other non-Sunni sects are considered illegal in Malaysia.
Analysis

The Tribunal has evaluated the profile and risk that the applicant faces as an Ahmadi Muslim. It is satisfied that he identifies as and practices as an Ahmadi follower. He presented a clear and simple account of his faith, how it differed from mainstream Islam and his reasons for being an adherent. His original reasons for seeking protection I accept were written down for him by someone who did not enlighten him as to what he was submitting and the applicant’s English skills were too poor to detect this. Section 423A of the Act sets out that where an applicant raises a claim before the Tribunal that was not raised in the application before the primary decision maker, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence unless satisfied the applicant has a reasonable explanation for not raising that claim earlier. Noting that he was not interviewed by the department, he has had little opportunity to clarify matters until now, and on balance I do not have a reason to find that he has acted unreasonably.
I accept that he came to the faith through a work contact. I accept that he has practiced his faith extensively in Malaysia and in Australia. I note that his Imam in Australia has written to the Tribunal to confirm this.
Giving regard to the country information, I find that the situation for Ahmadi Muslims can be problematic in Malaysia. Their beliefs are viewed as heretical by religious authorities, which are closely linked and intertwined with the government in Malaysia.
I accept that the applicant has faced societal discrimination through comments, and unwelcome and disconcerting visits to worship gatherings. I find that there is a prospect that this would continue if he returned to Malaysia. I discern no likelihood that he would reduce or abandon his religious practice, regardless of dangers faced. He also faces possible reporting of his aberrance to religious authorities and possible penalty. His employment prospects may reduce.
He has been proselyted to and converted. He could well engage in further proselytising in addition to his son, or he could well promote Ahmadi Islam, which can result in arrest or other forms of harassment by state authorities. Religious authorities may prevent him from being able to worship freely or charge them with religious offences if he is determined to have converted from Sunni Islam. I note that Ahmadiyyah and other non-Sunni sects are considered illegal in Malaysia.
There is significant country information on the disadvantages and harm faced in this context such as this from the United States Commission on International Religious Freedom [2] :
The Malaysian government has also restricted the rights of Ahmadiyya Muslims based on their Ahmadiyya identity. In 2000, lawmakers amended the fatwa to deny Ahmadis the right of succession or inheritance under Islamic Law and deny Ahmadiyya Malays the special economic privileges granted to members of the Malay ethnic group by the constitution. In 2014, the State Islamic Religious Department of Selangor (JAIS) raided an Ahmadiyya community faith center during prayer services, arresting 39 Ahmadis for carrying out faith practices in an unsanctioned mosque. This arrest launched legal proceedings that are ongoing and yet to be determined at the High Court, the highest civil court in Malaysia. On January 11, 2021, the court set March 19 as the date to determine this case, but that deadline passed without a ruling. This court case will determine whether Ahmadiyya Muslims can call themselves Muslim, as the community considers themselves to be. Should the court decide that the Malaysian government does not consider Ahmadis as Muslims under Malaysian law, the decision will have significant implications for their rights to freedom of religion and belief. Such a ruling would exclude Ahmadiyya Muslims from the Shari’a court system, which enforces a Sunni interpretation of Islam, but it would also bar them from using certain Arabic words that the state has restricted for use by members of the Muslim and Christian faiths. If Ahmadis are declared not legally Muslim, this will also complicate the status of those Ahmadis who are ethnically Malay, since Article 160 of the Malaysian constitution lists being Muslim as a criterion to identify as Malay.
[2] Factsheet: Persecution of Ahmadiyya Muslims (uscirf.gov) October 2021
This diminution of rights applies across the country and although some states in Malaysia are more conservatively Islamic than others, I am not convinced that he could reduce his risk level to below that of a real risk if he resided elsewhere, before giving consideration as to whether this would be a reasonable scenario.
For example, east Malaysia which has an overall less Islamic conservative influence would be problematic as a place to reside: The Sabah State Fatwa Council for instance banned Ahmadi teachings in August 2017, along with other non-mainstream Malaysian Muslim teachings.[3] The ban was announced in the state parliament.[4] In the same year, Malaysian religious authorities prevented Ahmadi from holding Friday prayers, claiming that prayers could only be held in an officially registered mosque. The government supported Muslim Consumer Association of Malaysia (PPIM) held a press conference denouncing the Ahmadi, suggesting it could take violent measures against them. Police intervened to stop the PPIM from protesting against Ahmadi headquarters in Kuala Lumpur as the PPIM called for the government to close down the organisation and its mosque. DFAT reports that local authorities have permitted billboards proclaiming Ahmadi are not Muslims to be displayed in front of PPIM’s headquarters for several years[5].
[3] 'Sabah bans Hizbut Tahrir, Shiah, Ahmadiyya also liberalism, pluralism', Malay Mail, 8 August 2017, 20200708122147; 'Ahmadis, Hizbut Tahrir slam Sabah for choosing ban over dialogue', Malay Mail, 10 August 2017, CXC90406616676
[4] 'Sabah bans Hizbut Tahrir, Shiah, Ahmadiyya also liberalism, pluralism', Malay Mail, 8 August 2017, 20200708122147
[5] '2019 Report on International Religious Freedom: Malaysia', US Department of State, 10 June 2020, p.13, 20200612122612; 'Sabah bans Hizbut Tahrir, Shiah, Ahmadiyya also liberalism, pluralism', Malay Mail, 8 August 2017, 20200708122147
In all, these matters are within the definition of real harm to the Tribunal’s mind. These too are immutable characteristics of a religious kind that modification of behaviour provisions would not capture. I do not accept that he could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in a receiving country, because modification would conflict with a characteristic that is fundamental to his identity or conscience and conceal an innate or immutable characteristic of the person (per s 5J(3))
I find that the modification of the applicant’s religious conduct for the purposes of avoiding harm in Malaysia would contravene s.5J(3)(c)(i). Therefore, he cannot be required to take steps to modify his behaviour on return to Malaysia, such as by modifying his religious practice or concealing their religion, so as to avoid the feared harm.
As the perpetrator of harm in this case is the Malaysian state, I accept that state protection is not available to the applicants. Therefore, the applicant meets the criterion set out in s.5J(1)(c) and s.5J(2).
I find the applicant’s religious beliefs are the essential and significant reason for the harm feared, which constitutes serious harm involving systematic and discriminatory conduct. Therefore, the applicant meets the criterion set out in s.5J(4).
It follows that I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
The state itself is one of the possible inflictors of harm and therefore state protection is not a viable option.
He has a well-founded fear of persecution – he fears being persecuted for reasons of religion, and there is a real chance that, if returned to the receiving country, he would be persecuted for one or more of the reasons mentioned in paragraph and the real chance of persecution relates to all areas of the receiving country.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Justin Meyer
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.
…

Ahmadiyya Persecution Factsheet.pdf

[2024] AATA 4167

5 September 2024

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