1831807 (Refugee)

1831807 (Refugee) [2022] AATA 1735 (19 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1831807

COUNTRY OF REFERENCE: Malaysia
MEMBER:Wendy Banfield
DATE:19 April 2022
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 April 2022 at 9:04am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – fear of loan sharks – criminal gang – forced drug trafficking – repaying business debts – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331
Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25
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 4 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 16 March 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 4 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
Refugee criteria
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.
Complementary protection criteria
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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
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.
Applicant's Identity and Country of Reference
The applicant stated in his application for a protection visa that he was born on [date] in Malaysia. The applicant provided a copy of his Malaysian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that he is a citizen of Malaysia and as such his protection claim will be assessed against Malaysia as the country of reference and 'receiving country' respectively.
Migration History
The applicant arrived in Australia [in] December 2017 on an Electronic Travel Authority (ETA) and has not departed since.
Claims for protection and supporting documentation
The applicant first submitted claims for protection when he made an application to the Department on 16 March 2018. His claims were summarised in the Department’s decision record:
·     His business, his only means for making a living, went bad when the Malaysian economy declined.
·     He borrowed money from many people.
·     In October 2017, one of his debtors (his friend) came to force him to pay back his loan immediately.
·     As he was unable to pay, he was forced to sell his friend’s ‘product’ which turned out to be [amount] of drugs.
·     Given the severe punishment of drug trafficking, he had no option but flee Malaysia.
·     He did not seek help because the law enforcement bodies were involved with bribery and drug trafficking.
·     He fears that the drug pushers were trying to set him up and to have him convicted.
·     He fears that he might be tortured till death by the drug pushers if he returns.
Evidence at the hearing
The applicant was asked if anyone assisted him with the application for protection. He said a friend helped him. The applicant advised he was not good with English and some of the claims submitted were not correct. He confirmed he is a citizen of Malaysia and does not have citizenship of any other country. The applicant stated he has visited other countries including [Country 1], [Country 2], [Country 3], [Country 4], and [Country 5]. He said he went to Thailand and Singapore because they border Malaysia, and he went to the other countries with friends.
Regarding his family members, the applicant said his wife and children are also in Australia and they currently hold Bridging visas. His parents are still in Malaysia. The applicant confirmed he came to Australia holding a tourist visa. In Malaysia the applicant said he ran a small [business]. The Tribunal asked what his purpose was in coming to Australia and the applicant said he had heard there was a need here that he could fill. He explained there was a job opportunity that would allow him to pay his debts. The applicant said he had initially been planning to stay in Australia for three months. He said he is currently living in [Suburb 1] in New South Wales and works [in a job] with a [specified] company. When asked if he is planning to return to Malaysia the applicant said “yes, I want to go back”.
The Tribunal asked the applicant why he had come as a tourist to Australia. He said it was to work and pay off debts. Regarding his reasons for applying for protection, the applicant said his friend wrote down that he has debts, and he is scared if he must return to Malaysia. The applicant advised he still has debts. The Tribunal put to the applicant that it was claimed in his application for protection that he was required to sell drugs in Malaysia. The applicant stated that is not correct but claimed he does still owe money. He was asked if in that case, he has any concerns about being punished for drug trafficking and he answered “no”. The Tribunal asked why those claims were made in the application for protection and the applicant said he did not know why.
The Tribunal put to the applicant that a protection visa is for people who will be persecuted or subjected to serious harm if they return to their home country. He said he understood. The Tribunal asked why he had applied for a protection visa and the applicant said he does not know why because a friend did it for him. The Tribunal asked the applicant if there is any reason why he is unable to return to Malaysia. He said if he goes back and does not pay his debts “they will be asking for it”. The applicant said he owes about RM30,000 after borrowing money when his business was not doing well, and customers were not paying him.
The applicant said his family members who came to Australia after him also arrived as tourists but are not part of the protection visa application. The Tribunal asked if they are planning to go back to Malaysia and he replied “yes, we will go back”. The Tribunal asked the applicant if he had any other fears about returning to Malaysia other than debt. He said he does not have a house or vehicle. The applicant requested he be permitted to remain in Australia for longer, about three years.
Loan Sharks
Malaysian police respond to threats and harassment from unlicensed moneylenders and some non-government associations offer assistance to loan shark clients. Loans from unlicensed moneylenders, typically referred to as ‘loan sharks’ or an ‘ah long’ in Malay, are common in Malaysia.[1] Unlicensed money lending activities, including harassment or intimidation of borrowers, are offences under the Moneylenders Act (1951).[2] Individuals prosecuted under the Moneylenders Act face a maximum 1 million ringgit fine or five years imprisonment. Police respond to complaints of illegal money lending activities, including harassment and intimidation, and conduct operations targeting illegal moneylending, resulting in the prosecution of persons under the Moneylenders Act and the Penal Code.[3] In December 2017, Malaysia’s central bank cautioned the public about illegal money lending activities conducted by companies using fake licences purportedly issued by the central bank, advising the public to report such instances to the police for investigation.[4] A nongovernmental organisation, the Malaysian Muslim Consumers Association (PPIM), offers support for those encountering problems with loan sharks, including a call centre, website, and assistance settling debts.[5]
[1] DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, sections 3.109-3.118, pp.40-42.
[2] Moneylenders Act 1951 (Malaysia)’, amended 15 April 2011, Attorney General’s Chambers of Malaysia, sections 5(2), 29AA, 29B(1).
[3] ‘Penang police nab 20 suspected loan sharks, including a Datuk Seri with alleged gang ties’, Malay Mail, 14 July 2021, ‘Two illegal moneylenders nabbed in 'Ops Vulture'’, The Star Online (Malaysia), 12 March 2021, ‘Police nab five ‘Ah Long’ for keeping victim captive in Kedah’, Bernama, 9 November 2020; ‘Johor cops arrest seven for loan shark activities’, The Star, 3 November 2020; ‘’Datuk’ arrested in Kuala Lumpur for posing as senior police officer’, Bernama, 18 October 2020; ‘Johor cops open 398 investigation papers on loan sharks in eight months’, The Star Online (Malaysia), 1 September 2020; ‘Cops detain 12 men over ‘Ah Long’ syndicate in Johor’, Bernama, 1 September 2020; ‘18 nabbed over Ah Long activities in Selangor’, The Star (Malaysia), 10 June 2020.
[4] ‘BNM warns of illegal money lenders’, Bernama, 6 December 2017.
[5] ‘More expected to borrow from loan sharks’, The Star, 23 June 2020, 20201116122942; ‘Loan sharks sharpen their bite’, The Star, 20 January 2018; ‘PPIM urges govt to put an end to ‘ah long’ posters’, Bernama, 6 September 2018’ ‘For Malaysia’s sake, consumers group seeks to save civil servants trapped in debt’, Malay Mail, 3 August 2017; ‘More than 10,000 people sought PPIM's help over Ah Long cases’, Bernama, 18 October
2016.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal considered the applicant’s claims made to the Department at the time of application and to the Tribunal at the hearing. The applicant advised the claims made in his application for protection about being forced to sell drugs and fearing the consequences of doing so were not true. The applicant submitted a friend helped him complete the application and he did not know why those claims were included. The applicant denied having any fears in Malaysia related to drugs or being punished for drug trafficking. The applicant told the Tribunal he came to Australia because he heard there was a need here that he could fill, and it would be an opportunity for him to repay his debts. According to his evidence, the applicant had a business that was not doing well, and he borrowed money. He claimed if he returns to Malaysia and does not pay his debts the lenders will be asking him for it. When asked about fear of harm if he returns to Malaysia, the applicant referred to his friend including in the application that he, the applicant, is scared to return. He did not elaborate or provide any details about who he owes money to, but the Tribunal notes that according to independent country information, there is a proliferation of unlicensed money lenders in Malaysia and borrowers often have difficulty repaying loans. The applicant did not claim to have been harmed in the past because of outstanding debts or fear harm in future for that reason. The applicant stated he and his family do want to return to Malaysia, but he wants to stay in Australia longer to be able to pay off debts.
The Tribunal accepts the applicant has debts in Malaysia and wants to remain in Australia to work and repay them. The applicant explained that the claims in his original application for protection that he was forced to sell drugs and feared the consequences of drug trafficking were not true, and the Tribunal has not accepted those claims. After assessing the evidence in the applicant’s case, the Tribunal is not satisfied the applicant left Malaysia due to persecution, or that he has a well-founded fear of persecution if he returns to Malaysia because of any involvement in drug trafficking.
The applicant did not make any specific claim that he was a member of a particular social group, but the Tribunal nevertheless considered his submissions that he experienced difficult financial circumstances due to a failing business and debts. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
… First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …
Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.
Based on the applicant’s claims before the Tribunal, there is no evidence he would be denied access to basic services or denied the capacity to earn a livelihood. The Tribunal did consider whether the applicant would face significant economic hardship that would threaten his capacity to subsist. In this regard the Tribunal notes the applicant is still within working age at [age] years old, he declared he had previously run his own business, and he is currently working for a [specified] business in Sydney. He has demonstrated that he has been able to able to use his personal resources to find work and live in a foreign country without being a native English speaker. The applicant has been in Australia for more than four years and would have acquired skills that could be utilised in his home country.
The applicant claimed if he returns to Malaysia those who he borrowed money from will ask for it back. This is not unreasonable in the circumstances and would be a consequence for anyone who borrows money with an expectation by the lender that it be repaid. The Tribunal notes there are government support services available in Malaysia to those who are in debt and have difficulty making repayments, including to illegal money lenders[6]. As outlined in this decision, media reports indicate police do take action against such unlawful organisations. There is nothing to suggest the applicant would be unable to seek assistance from those services. The Tribunal understands the applicant has indicated a preference for remaining in Australia for a longer period but has also stated he and his family plan to return to Malaysia. The Tribunal finds based on the evidence that the applicant does not have a well-founded fear of persecution.
[6] Malaysian Government Credit Management Programme: type="1">
For these reasons, the Tribunal is not satisfied that there is a real chance that on return to Malaysia now or in the reasonably foreseeable future, the applicant would face harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criteria
A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment
During the Tribunal hearing the applicant was asked if he had any fears of significant harm if he returns to Malaysia. The applicant confirmed he does not fear harm in Malaysia for reasons of involvement in selling drugs, or the consequences of drug trafficking because those claims were included in his application by another person and are not correct. The applicant’s other claims were about having debts and having to repay loans related to his previous business, however, this is not a basis upon which complementary protection may be granted.
In his evidence to the Tribunal, the applicant did not appear to have any genuine claims for protection in Australia. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wendy Banfield
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.
…

[2022] AATA 1735

19 April 2022

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Immigration

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