1834706 (Refugee)

[2024] AATA 2467

1834706 (Refugee) [2024] AATA 2467 (22 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834706

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Rupert Timms

DATE:22 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 May 2024 at 7:46am

CATCHWORDS

REFUGEE – Protection Visa – Malaysia –  applicant declined hearing invitation – race – ethnic Chinese – loaned money from a loan shark – discriminatory views against ethnic Chinese – applicant has not provided sufficient relevant information to support his claims –  credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 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

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 November 2018 to refuse to grant the applicant a protection visa under s65 of the Migration Act 1958 (Cth) (the Act).

2.The applicant who claims to be a citizen of Malaysia, applied for the visa on 13 March 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.   

CRITERIA FOR A PROTECTION VISA

3.The main criteria for a protection visa are set out in s36 of the Act and in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s36(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.

4.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.

5.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: s5H(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: s5H(1)(b).

6.Under s5J(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 ss5J(2)-(6) and ss5K-LA, which are extracted in the attachment to this decision.

7.If a person is found not to meet the refugee criterion in s36(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: s36(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 ss6(2A) and (2B), which are extracted in the attachment to this decision.

Section 5AAA of the Act

8.Pursuant to s5AAA of the Migration Act, it is for the review applicant to specify all particulars of the 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 the claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.

9.The Tribunal has applied this provision when considering the applicant's claims and evidence.

Mandatory considerations

10.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.

Background

11.The applicant is a [age]-year-old Malaysian national who arrived in Australia on a visitor visa on [date] September 2015, and who applied for a protection visa more than two years later on 13 March 2018.   

12.According to his passport, and to information contained in his protection visa application form and Departmental file, he is of Chinese Malaysian ethnicity and was born and educated at both primary and secondary levels in the Malaysian state of Selangor, and he was also self-employed in Selangor in a [business] for approximately five years finishing in March 2015.  He also lived at some stage in Penang.

13.The Department refused the applicant’s protection visa application on 15 November 2018, and on 26 November 2018 the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the Department’s refusal decision.

14.On 14 March 2024, the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 5 April 2024, and requested that he provide any further documentary evidence on which he wished to rely by 29 March 2024.  The correspondence also requested that the applicant complete and return a ‘Response to hearing invitation form’ to confirm details related to the hearing, including whether he would take part in the hearing or whether he instead wished the Tribunal to make a decision on the papers without a hearing.  That form was also accompanied by a letter which advised the applicant that if he was unable to appear at the hearing as scheduled, he should advise the Tribunal as soon as possible and provide reasons why, and the Tribunal would then consider whether to make any necessary changes to the hearing arrangements.

15.On 14 March 2024, the applicant returned to the Tribunal by email a completed ‘Response to hearing invitation form’.  Among other questions, that form had asked whether the applicant would take part in the hearing scheduled for 5 April 2024, and it gave the applicant the following two alternate answer boxes to choose from in response: (i) a check box which stated “Yes”, and (ii) a check box which stated “No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear”.  In his response, the applicant checked the box which stated “No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear”.

16.The applicant has not provided the Tribunal with any additional information for the Tribunal’s consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

17.The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or instead under ‘complementary protection’ grounds, or is a member of the same family unit of such a person and that person holds a protection visa of the same class.

18.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicants’ claims for protection

19.In his protection visa application, the applicant stated reasons for seeking Australia’s protection which the Tribunal summarises as follows:

His situation at the time of leaving Malaysia

·     Malaysia was full of unfairness and injustice for him, and he was disappointed in the Malaysian government.   

·     he is ethnic Chinese, and he was abused mentally and physically by a local Malaysian gang and local Malaysian boys because they knew he was Chinese and did not think he deserved to be human.  If they saw him earning money, they would think he had stolen their job, and they would threaten him and teach him a lesson.

·     a lot of the higher paying jobs were not available to him because of his Chinese ethnicity, and he started his own [contracting] business.

·     he was humiliated many times in his workplace because of his ethnicity, and he also had to lower his prices to secure work.

·     he was cornered and abused by local Malaysian [contractors] after he had lowered his price.  

·     he became deeply upset and scared to communicate.  He was likely suffering some sort of depression, and things became very painful for him, and there was no place for him to go in Malaysia, and this was why he chose to leave Malaysia. 

·     he did not seek help within Malaysia after this harm because the Malaysian police do not care, and local police members also take part in bullying ethnic Chinese, and seeking help accordingly is useless.

·     he did not try to move to another part of Malaysia because unfairness for ethnic Chinese is everywhere in Malaysia.

·     he also loaned money from a loan shark.

If he is to return to Malaysia

·     if he is to return to Malaysia, the applicant thinks that:

·he has no future in Malaysia and will be unable to continue with his life there. Malaysia is full of racism and discrimination, including the politicians, and he cannot bear the thought of returning to Malaysia.

·because of racism, even when he is sick or unwell he will still need to work hard in his self-employed business.

·he will be physically abused if he tries to return to his  [job]. 

·he will be harmed by the loan shark and be in fear of his life because he did not pay the high interest rates to the loan shark.

·     he thinks that authorities in Malaysia cannot and will not protect him because they also have discriminatory views against ethnic Chinese.

·     he thinks that he would not be able to relocate within Malaysia to an area where he would be safe.  This is because the police are 98% Malay, and the same things will happen everywhere in Malaysia.

20.The decision maker (‘the delegate’) at the Department of Home Affairs refused to grant the applicant a protection visa, not being satisfied that the discrimination which the applicant would face was serious harm for the purposes of s5J of the Act and because effective protection measures were available to the applicant.  The delegate also considered the applicant’s claims under the complementary protection criteria but was satisfied that the applicant could obtain protection from an authority in Malaysia such that there would not be a real risk that the applicant will suffer significant harm.

Reasons and findings

21.The Tribunal accepts the applicant’s election of 14 March 2024 and the Tribunal finds that he has validly consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear.  The Tribunal now proceeds with a decision on the papers without a hearing.

Claims of racial discrimination and harassment

22.In considering whether the applicant is a refugee under the Act due to harm from any racially-related discrimination and harassment, among other requirements the Tribunal must be satisfied that there is a real chance that the applicant would suffer serious harm if he returns to Malaysia: s5J(1)(b).  While the Act does not exhaustively define or limit what might constitute serious harm, at s5J(5) it instead provides the following six instances in guidance as to the degree or level of harm required to constitute serious harm for the purposes of the Act:

(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. 

23.    In also considering whether the applicant meets the Complementary Protection criterion under s36(2)(aa) due to any harm, the Tribunal must also be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there is a real risk that he will suffer significant harm.  Significant harm is exclusively defined in s36(2A) of the Act as follows:

(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.

24.In relation to the applicant’s claims for Australia’s protection because of racially motivated discrimination and harassment, the Tribunal gives strong weight to the Country Information Report on Malaysia prepared by Australia’s Department of Foreign Affairs and Trade (DFAT)[1] which the Tribunal finds relevantly states that:

[1] DFAT Country Information Report: Malaysia 29 June 2021

• Race has historically been a prominent issue in Malaysia, and relations between Malaysia’s diverse populations have been tense at times. On 13 May 1969, Sino-Malay sectarian violence broke out in the form of race riots between ethnic Malays and Chinese Malaysians.  Official figures indicate 196 deaths, although estimates vary, some as high as 600. This event led to action policies that favour the Bumiputera over other ethnicities in areas such as business, higher education, property ownership, government contracts and civil service jobs. Elements of these affirmative action programs continue today.

• Chinese Malaysians comprise approximately 20% of Malaysia’s population, and are Malaysia’s second largest ethnic group after the Bumiputra (which includes Malays and indigenous persons of the Peninsula, Sabah and Sarawak) at 62%. They are one of the largest overseas Chinese communities in the world, and are Malaysia’s second largest ethnic group.

• In November 2018, media reported an average unemployment rate for Chinese Malaysians of 2.4%, compared to an average of 4% for the Bumiputra

• The official language is Bahasa Malaysia (Malay), but English is widely used, along with a variety of Chinese dialects, Tamil and, to a lesser degree, indigenous languages.

• Chinese Malaysians are eligible to access national primary or high school education, but generally choose to attend Chinese primary schools that teach in Mandarin (along with Bahasa Malaysia)

• As of July 2018, there were 7,776 primary national schools, including about 1,300 national-type Chinese schools.  National-type Chinese and Tamil schools use their mother tongue as the main medium of instruction and teach Bahasa Malaysia as a compulsory subject. There are around 60 Chinese independent secondary schools.

• There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians (though, by implication, as the second largest ethnic group, they are the principal group affected by the constitutional preference for Bumiputera).

• Despite the removal of government-sanctioned ethnic quotas in public universities in 2002, Bumiputera continue to secure the majority of public university places and Malaysia’s ethnic minorities remain underrepresented in public universities. Many pre-university programs have Bumiputera quotas, and public universities must provide a certain number of university places to these programs.

• Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. They are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian-owned.

• Chinese Malaysians report discrimination against the community in the business sector and claim unequal access to certain industries due to Bumiputera ownership laws.

• Chinese Malaysians report obtaining and maintaining a business license can be difficult, due to Bumiputera ownership quotas and pressures to pay significant bribes. Chinese Malaysians also claim Inland Revenue Board (IRB) raids of Chinese Malaysian businesses leading to fines are common. Sources claim that IRB raids for ‘verification purposes’ can close down a business for months at a time, with significant economic consequences including loss of income and frozen bank accounts.

• Malaysian media citing official police statistics in early 2018 reported that over 100 illegal gangs, with an estimated 9,000 members, operated in Malaysia. Of these gangs, 65 were reported to be Chinese Malaysian, 20 were Malay and 18 were Indian Malaysian-run gangs. DFAT is not able to verify these statistics.

• High-level crime, including drug trafficking, is more typically associated with Chinese Malaysian gangs.

• Chinese Malaysians freely participate in political life, including as ministers and in opposition parties, but ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’.

• Chinese Malaysians often do not apply for government positions, and there are relatively few Chinese Malaysians in the Malaysian civil service as they believe the positions are more likely to be awarded to Bumiputera and provide limited promotional opportunity.  The predominant use of the Malay language can be a barrier to Chinese Malaysian employment in the civil service, but does not preclude it. Civil society sources report that non-Bumiputera civil servants often progress more slowly through promotions.

• Chinese Malaysians are concentrated in the west coast states of peninsular Malaysia, living in large urban centres, including within Kuala Lumpur and Penang, and the populous states of Johor, Perak and Selangor, where they comprise approximately 30 per cent of the population.

• Ethnic Chinese Malaysians are generally Buddhist, Christian or Taoist, practise traditional Chinese folk religion and ancestor worship, or do not follow a religion.

• While a broad range of ethnicities practises Christianity, approximately 20 per cent of the Chinese Malaysian community is Christian, and reports indicate a growing number of converts to Christianity are ethnic Chinese middle-class individuals who were originally Buddhists or Confucianists.

• Buddhists represented just under 20 per cent of the total population in 2010, the last year for which official data is available, while Hindus made up 6.3 per cent.  Local sources estimate the current proportion of Chinese Malaysians who are Buddhist is around 80 per cent.

• The Royal Malaysian Police (RMP) is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.

• DFAT assesses Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.

25.While the Tribunal finds that this current DFAT Country Information Report cited above is broadly silent as to any level of societal discrimination or harassment generally being experienced by Malaysian Chinese, the Tribunal further finds that information about the position of Malaysian Chinese in Malaysia, as contained in an April 2018 earlier version of this same DFAT Country Information Report, is substantially the same as that in the current report.  The Tribunal gives strong weight to the part of that previous report which further states that DFAT assesses that Chinese Malaysians do not experience official or societal discrimination on a day-to-day basis[2].  

[2] DFAT Country Information Report on Malaysia, 19 April 2018, at page 11

26.The Tribunal accepts the applicant’s claim that he is Malaysian Chinese.  Taking into account the above cited DFAT Country Information, including more specifically its information stating that there historically have been racial tensions between ethnic Malays and Malaysian Chinese, and that Malaysian Chinese are a minority ethnic group in Malaysia and that they experience low levels of official and societal discrimination, the Tribunal also broadly accepts the applicants claims relating to racial harassment and discrimination and harm.

27.However, in relation to the applicant’s claim that he has suffered mental and physical abuse and threats from a local Malaysian gang and local Malaysian boys, there is no information before the Tribunal as to the nature of this abuse or of these threats, or about their level of severity, or about when this abuse and these threats occurred, or over what period this abuse and these threats occurred.  On the basis of the information before it, the Tribunal is not satisfied that this mental and physical abuse and these threats are serious harm for the purposes of s5J(5) of the Act, or that they are significant harm for the purposes of s36(2A) of the Act.

28.The applicant has also claimed that a lot of higher paying jobs were not available to him because of his ethnicity.  However, while the Tribunal accepts that some higher paying jobs would not have been available to the applicant because of his ethnicity, including especially public-sector related jobs, the Tribunal finds that his ethnicity would not be a bar to many other higher paying jobs.  The Tribunal finds this on the basis of the DFAT country information cited above, including especially its reporting that Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia, and that they are well represented in the private sector, and many small and medium enterprises and large corporations are Chinese Malaysian-owned.   On the basis of the information before it, the Tribunal is not satisfied this job-related discrimination is serious harm for the purposes of s5J(5) of the Act, or that it is significant harm for the purposes of s36(2A) of the Act.

29.The Tribunal also accepts the applicant’s claim that he was humiliated many times in his workplace due to his ethnicity.  However, there is no information before the Tribunal as to what actions or omissions caused this humiliation, or about when or over what period this humiliation occurred, or about the actual or approximate number of times that it occurred, or about the level of severity of this humiliation.  On the basis of the information before it, the Tribunal is not satisfied that this humiliation is serious harm for the purposes of s5J(5) of the Act, or that it is significant harm for the purposes of s36(2A) of the Act.

30.The Tribunal also accepts that the applicant lowered his price in order to secure work, and also that he was cornered and abused by competitors because of that price lowering.  However, there is no information before the Tribunal as to the level or severity of the price lowering involved, or as to the number of times he lowered his price, or as to when or over what period this price lowering occurred, or about the circumstances surrounding this price lowering, or about whether other non-racially related factors also contributed to the price lowering.  Nor is there any information before the Tribunal about the form and severity of the cornering and abuse of the applicant by his competitors, or about when or over what period this occurred, or about the actual or approximate number of times that it occurred.  On the basis of the information before it, the Tribunal is not satisfied that this lowering of prices, or cornering and abuse by competitors, is serious harm for the purposes of s5J(5) of the Act, or that it is significant harm for the purposes of s36(2A) of the Act.

31.The Tribunal also accepts that as a result of some or all of the applicant’s claims above, he became deeply upset and scared to communicate with other people, and he believed he was likely suffering some sort of depression, and that things became very painful for him, and that as a result he chose to leave Malaysia.  However, there is no other information before the Tribunal about how the applicant’s feelings of deep upset and deep pain manifested themselves in him or affected him, or about the level of fear of communication he experienced and about whether this fear prevented any communication by him, or about whether he was actually suffering clinical depression, or about the period of time that he suffered in these ways.  On the basis of the information before it, the Tribunal is not satisfied that this suffering is serious harm for the purposes of s5J(5) of the Act, or that it is significant harm for the purposes of s36(2A) of the Act.

32.On the basis of the above, the Tribunal is not satisfied that the applicant has ever suffered any harm which is serious harm for the purposes of s5J(5) of the Act, or which is significant harm for the purposes of s36(2A) of the Act.

33.The Tribunal also accepts that the applicant fears that he will be physically abused if he returns to his  [business] due to his ethnicity.  However, the applicant has provided no further information about this abuse he fears, including about what form it might take, or about its level of severity.  On the information before it, the Tribunal is not satisfied that this abuse is serious harm for the purposes of s5J(5) of the Act, or that it is significant harm for the purposes of s36(2A) of the Act.

34.The Tribunal also accepts that the applicant believes that because of racism he would need to continue working hard in his business even when he is sick or unwell.  However, the applicant has provided no further information related to this claim, including about the levels of sickness or unwellness that he is referring to, or about the nature of the hard work he is referring to.  The Tribunal also gives weight to the above cited DFAT Country Information from which Tribunal concludes that many Malaysian Chinese are able to prosper through business, and on the information before it the Tribunal is not satisfied that this harm feared by the applicant is serious harm for the purposes of s5J(5) of the Act, or that it is significant harm for the purposes of s36(2A) of the Act.

35.The Tribunal also accepts that the applicant fears that he has no future in Malaysia and that he will be unable to continue his life there because of racism and discrimination in Malaysia including from the politicians.   However, giving weight to all the above cited DFAT country information including especially to DFAT’s overall assessment that Malaysian Chinese experience low levels of societal and official discrimination[3], and also taking into account all the Tribunal’s findings above, the Tribunal is not satisfied that there is a real chance or real risk that the applicant will suffer this harm on any return to Malaysia.  Accordingly, the Tribunal is not satisfied that s5J(1)(b) is met in relation to the refugee criteria, or that s36(2)(aa) is met in relation to the complementary protection criterion.

Fear of harm from a loan shark

[3] DFAT Country Information Report on Malaysia, 19 April 2018, at page 11

36.The applicant claims to have loaned money from a loan shark, and that he fears harm and is in fear of his life from the loan shark because he did not pay their high interest rates.   

37.There is no meaningful information before the Tribunal about the applicant’s loan from the loan shark.   There is no information before the Tribunal about the name of the loan shark to whom he claims to owe money and to fear, nor is there any information about the quantum of the loan, or about the interest rates and/or penalties which might apply in the case of late payment, or about when this loan was taken out by the applicant, or about whether any repayments have been made, and about what amount, if any might still be outstanding.

38.Nor is there any meaningful information before the Tribunal about whether the applicant has previously experienced any harm from the loan shark while the applicant was in Malaysia, or whether the applicant has ever received any threats from the loan shark, or about whether the applicant still now fears harm from the loan shark after more than eight years have passed since his departure to Australia, or about the nature of the harm that he might still now fear.

39.On the extremely limited evidence before the Tribunal, the Tribunal is not satisfied that the applicant ever took out a loan from a loan shark, or that he ever feared or experienced any harm from a loan shark, or that he now has any loan monies owing to a loan shark, or that he now fears any form of harm from any loan shark in Malaysia.   Accordingly, the Tribunal is not satisfied that there is a real chance or real risk of the applicant suffering any form of harm from a loan shark on his return to Malaysia.

40.For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion at s36(2)(a) of the Act, or under the complementary protection criterion at s36(2)(aa) of the Act.

Conclusion

41.In all the circumstances, the Tribunal is not satisfied on the information before it that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.  Nor is the Tribunal satisfied that 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.

42.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a) or s36(2)(aa).

43.There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the Tribunal finds that the applicant does not satisfy the criterion in s36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Rupert Timms
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.

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1. Protection visas – criteria provided for by this Act

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1. 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.

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