1838050 (Refugee)

1838050 (Refugee) [2022] AATA 2501 (21 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1838050

COUNTRY OF REFERENCE: Malaysia
MEMBER:Wendy Banfield
DATE:21 June 2022
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 June 2022 at 4:21pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of money lender – fear of torture – detention – physical assault – 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 MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
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 11 December 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 25 June 2018. The delegate refused to grant the visa on the basis 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 30 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto/Pushtu and English languages. The Tribunal exercised its discretion to hold the hearing by telephone. 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 Sabah, Malaysia. The applicant provided a copy of his Malaysian passport to the department. There is no evidence to suggest this is a bogus document but the applicant gave evidence that he was born in Pakistan.
There is no verifiable evidence to indicate that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. However, the applicant did disclose that he is a national of Pakistan having been born there before migrating to Malaysia at aged [age] or [age] with his father. He also stated he is married and has a wife and children in Pakistan.
Based on the documents provided by the applicant and accepted by the Department, the Tribunal has proceeded on the basis 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] April 2018 holding a UD-601 Electronic Travel Authority visa. On 25 June 2018 the applicant applied for a XA-866 Protection visa which is the subject of this review. He has not departed since his arrival.

Claims for protection and supporting documentation
The applicant first submitted claims for protection when he made an application to the Department on 25 June 2018. The application’s claims were outlined by the Department which the Tribunal accepts as a fair summary:
·They inherited a property from their late father. They transferred the property to their brother so their brother could operate a business.
·Their brother reported them to the police, falsely accused them of a drug offence which resulted in imprisonment.
·When they were released from prison, their brother refused to assist them financially, therefore they borrowed money and accumulated a debt.
·They are being tortured by the people they borrowed money from because they cannot repay the debt.
·They tried to relocate to another area of the country, however the money lenders found them and continued to ask for their money.
·If they return to Malaysia they will be harmed and tortured by the money lenders.
Evidence at the hearing
The Tribunal asked the applicant whether anyone assisted him to complete his application for a visa. He said his cousin helped because the applicant does not speak the language. The applicant stated his belief that the claims made in the application are true and correct. The applicant said he is a citizen of Malaysia and does not have citizenship of any other country. When asked if he had travelled to any other country, the applicant said Pakistan, because he has family there. He then said he was born in Pakistan but moved to Malaysia when he was a child. He said his father is deceased and he has a brother in Malaysia. When asked if he is married, the applicant said his wife and his children are in Pakistan, as well as his mother. The applicant said he has [number of children]. The Tribunal asked why the applicant did not reside with his family in Pakistan and he said he had been in prison and had to support his family. He claimed to have had problems with employment. In Australia the applicant is living in [Town 1] and is working in farming.
The applicant said he moved to Malaysia with his father when he was [age] or [age] years old. He married in Pakistan in 1996 and his children were born there. He was asked if his wife and children had ever lived with him in Malaysia and he said they had only visited. The applicant said his family remain in Pakistan because he could not afford to support them and had been busy with work. When asked if he had a right to return to Pakistan to live the applicant said he cannot go to Pakistan because the people he has problems with will track him there.
The applicant was asked to explain what he feared about returning to Malaysia. He said his father and brother filed a report against him and he was jailed. When asked to explain the applicant said his father and [brothers] made false accusations that he was using drugs. There was a physical altercation, and he was jailed for [number] months. He said he was living in Sabah at the time. The applicant said he left Malaysia because after he was released from jail, there was a Pakistani national that he borrowed money from for a business. He claimed he was “betrayed”, and everything was lost, then they were looking for him. The applicant said he was chased to Kuala Lumpur where he was beaten which forced him to leave.
The applicant said he had been in jail in 2016. He then borrowed and amount of RM[amount] to start [a] business. The applicant said one of his brothers lived in Malaysia at the relevant time. The Tribunal asked the applicant when his father had died and he said it was about two years ago, but he was not sure. He was asked if it was before or after he came to Australia. He said it was after he moved to Australia in 2018.
Regarding the money the applicant said he borrowed, he said it was from a Chinese person, but he had started a business with a Pakistani national. The applicant claimed the business was under his partner’s name and that person took all the money from the business. The applicant said the lender had come after him and he had to pay, or they will kill him. The Tribunal asked if the applicant if he had tried to get help from police or authorities. He said he did not because it was a legitimate loan, and even if he could get protection, he had to get out. He said he had not borrowed from an illegal lender as the person was licensed. The applicant said although he was threatened, he could not deny the fact he owed the money and whoever fails to repay could be harmed or killed.
The Tribunal put to the applicant that there are organisations in Malaysia that can assist with outstanding loans, but he said a guarantor is required and he did not have a good relationship with his father. According to the applicant, he suffered actual physical harm in Malaysia. He claimed the money lenders had sticks and he was hit and punched. The Tribunal put to him that his original claims were that he had altercations with his father and brother. The applicant said his father was part of the problem, to make sure he did not get any property. It was put to the applicant that he had said in his claim that he had inherited money from his father’s estate when he was in Malaysia. The applicant stated there may have been a problem with his cousin who assisted him. He reiterated his father had died after he came to Australia.
The Tribunal asked the applicant if he had any property that was put in his brother’s name. He said “no”. He was asked if he had asked for his money from his brother and he again said “no”. The Tribunal put to the applicant that his original claim was that he had asked his brother for money and had been ignored. The applicant said after he was released from jail, he had no contact with his brother, and there must have been a mistake. The Tribunal asked the applicant to explain why he could not return to Pakistan to be with his family. He said in Pakistan it is financially hard and he is not able to support his family.
Country Information – Malaysia
Royal Malaysia Police (RMP)
The RMP is based on the British constabulary model and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. SUHAKAM conducts some human rights training and workshops for police, state Islamic religious authorities and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country. The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which was created in 2009 as part of the government’s response to police corruption, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts. Perceptions of the EAIC’s ineffectiveness contributed to calls for a new police accountability body.
…
The then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. SUHAKAM also receives complaints against the RMP and has investigated police behaviour. The government is not formally required to consider SUHAKAM’s reports or recommendations.[1]
[1] DFAT Country Information Report – Malaysia 29 June 2021
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.
Credibility
In assessing the applicant’s case the Tribunal found the claims for protection in Australia suffered due to different accounts being provided to the Department and the Tribunal. In addition, the Tribunal had the following concerns that adversely affected the applicant’s credibility.
·     The applicant completed a Department Form 866 ‘Persons included in this application and family composition’. In response to the question ‘Are there any members of the same family unit who are in Australia or overseas but are NOT included in this application’, the applicant had ticked the box marked ‘No’. However, during the hearing the applicant declared he has a wife and five children in Pakistan.
·     The applicant’s Malaysian passport states the applicant was born in Sabah in Malaysia but during the hearing he advised he was actually born in Pakistan and had moved to Malaysia with his father when he was [age] or [age] years old.
·     The original claim for protection states the applicant received a distribution of property from his late father’s estate in Malaysia, before travelling to Australia. However, at the hearing the applicant advised his father had died after he came to Australia in 2018.
·     The applicant denied part of his original claim including that he had put property in his brother’s name and after being released from jail, had asked his brother for his money but was ignored.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims. However, in this case, and for the reasons outlined below, the Tribunal finds his written claims were not diligently or conscientiously submitted. Accordingly, the Tribunal has placed more weight on the applicant’s oral claims at the scheduled hearing.
Accepted Personal Circumstances
The Tribunal accepts the following to be credible:
·     The applicant was assisted by another person when completing the ‘Application for protection form’ submitted to the Department.
·     The applicant was born in Pakistan and speaks, reads, and writes Pashto.
·     He has a wife and children living in Pakistan.
·     The applicant was living and working in Malaysia prior to travelling to Australia.
·     The applicant is living in [Town 1], New South Wales and is working on a farm.
Refugee Criteria
The Tribunal considered whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion relating to all areas of the relevant country. To meet the refugee criteria, the applicant must have a well-founded fear of persecution and the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to a threat to the person's life or liberty; significant physical harassment of the person; significant physical ill treatment of the person; significant economic hardship that threatens the person's capacity to subsist (ability to survive); denial of access to basic services, where the denial threatens the person's capacity to subsist (ability to survive) or denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist (ability to survive). The applicant did not make any claims in relation to race, nationality, membership of a particular social group or political opinions in either Malaysia or Pakistan. The applicant’s claims were that he had a legitimate debt that he was unable to repay, he had been threatened and harmed as a result, and he had been unable to return to Pakistan where his family reside because he could not support them there.

The Tribunal considered whether the applicant’s submissions that he experienced difficult financial circumstances as a debtor means he belongs to a particular social group. 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[2] and also in Applicant S.[3] 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". …
[2] Applicant A v MIEA (1997) 190 CLR 225.
[3] Applicant S v MIMA (2004) 217 CLR 387.
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 have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group. The Tribunal finds that in the applicant’s case, being a person who owes money or has financial difficulty does not necessarily distinguish the applicant from Malaysian society at large. This is because large numbers of people, across all sections of society in Malaysia have debts. It is generally characterised as “household debt” and there is no distinction from any other member of society.[4] The applicant’s situation does not denote him as part of a group with characteristics or attributes common to all, and he is not distinguishable from society at large.
[4] >
As the applicant did not claim to fear persecution for a refugee reason, the Tribunal is not satisfied there is a real chance that, if the applicant was returned to Malaysia, he will be persecuted for one or more of the reasons mentioned in s5J(1)(a) of the Act.
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 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 to state if he had any fears about returning to Malaysia. He gave information about a dispute with his father and brother in which he said he was accused of using drugs and was given a jail sentence of [number] months. The applicant did not claim to fear harm for these reasons. He claimed that on his release, he had started a business with another person and was held responsible for a debt after the business partner took the money. The applicant denied the debt was to a loan shark and said it was a legitimate loan through a licensed lender. The applicant said he was pursued and physically assaulted because of his debt. The applicant did not contact police or seek any other assistance because he did not believe he would be protected when he genuinely owed money. The applicant further claimed he could not go to Pakistan because he would be located and because he would not be able to financially support his family. The applicant indicated there had been some mistake in his original application and he had not been involved with his brother following his release from jail. As stated in this decision, the Tribunal was prepared to assess the applicant’s evidence at the hearing rather than his written claims in his original application which he believed contained some errors.
After assessing the applicant’s claims and evidence at the hearing, the Tribunal is not satisfied the applicant suffered actual harm in Malaysia, or that there is a real risk he will suffer significant harm if removed from Australia to Malaysia. The applicant’s claims of being beaten and punched by a person or persons because of his debts was vague and without detail. He did not provide any explanation of the incident such as who the people were, how he knew it in relation to his debts, or when the claimed assault took place. The Tribunal accepts the applicant may have debts and financial responsibilities that he has found difficult to fulfil but is not satisfied he it at risk of harm as a result. The Tribunal notes the applicant claimed to be in debt because of a failed business in Malaysia and could not return to Pakistan as it is difficult to support his family in Pakistan. The Tribunal finds it likely the applicant travelled to Australia for financial reasons rather than fear of harm due to outstanding debts.
Since the applicant claimed to have a legitimate loan from a licenced lender, the applicant could seek assistance from organisations that offer credit counselling and debt management such as The Credit Counselling and Debt Management Agency, or Agensi Kaunseling dan Pengurusan Kredit (AKPK), an agency set up by Bank Negara Malaysia.[5] Alternatively, the applicant could dispute the debt because of his allegation his former business partner took the funds that had been borrowed for a business. Regarding his claims of threats if he did not repay the loan, the police have investigative powers irrespective of the applicant’s concerns that he will not receive assistance because he does owe the money.
[5] >
The Tribunal is not satisfied there are substantial grounds for believing that there is a real risk the applicant will suffer 'significant harm' if he is removed from Australia to his home country, when significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Based on country information, the police in Malaysia are considered to be a professional and effective police force who are willing and able to investigate crimes. The Tribunal is satisfied that if necessary, the applicant could seek assistance from police or relevant authorities for any threats or violence he may encounter in Malaysia.
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 2501

21 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Standing