1838171 (Refugee)

1838171 (Refugee) [2024] AATA 1806 (24 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1838171
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Mark O'Loughlin
DATE:24 May 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 May 2024 at 4:26pm

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – obtained a loan from loan sharks – threats from the loan sharks – converted to Islam from Christianity – not satisfied the applicant has a well-founded fear of serious harm – 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

On 18 December 2018, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. The applicant has applied to the Tribunal for review of that decision.
The applicant applied for the visa on 26 July 2018. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant has availed himself of protection available from the Malaysian authorities and is not therefore a person in respect of whom Australia has protection obligations.
The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal on 9 May 2024 via video link to give evidence and present arguments.
The Tribunal was assisted by an interpreter in the Malay language.
CRITERIA FOR A PROTECTION VISA
The relevant 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). To be eligible for a Protection Visa an applicant must meet one of the alternative criteria in s36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that he is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, to succeed the applicant must satisfy either:
a.s36(2)(a)- the “refugee criterion”, or
b.s36(2)(aa)- the “complementary protection criterion”.
Mandatory considerations
In accordance with Ministerial Direction No.84 made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
Claims
The applicant set out his claims in the Protection Visa Application (PVA) signed on 25 July 2018.
In his evidence before the Tribunal the applicant testified that, despite the representations in the PVA, he had not filled it out himself and is not sure what it says.
He gave evidence that a person named ‘[name]’ completed the form for him and that he assumes, but is not sure, she included what he had said to her.
The Tribunal asked the applicant to explain why he does not want to go back to Malaysia.
The applicant said he came to Australia to look for opportunities to earn money to settle debts in Malaysia.
He told the Tribunal that he obtained a loan from loan sharks, or ‘Ah Long’. In these reasons those terms are used interchangeably.
He said he had borrowed RM 100,000 which he had not fully repaid. He said he had repaid half of the outstanding amount.
He borrowed from the Ah Long because he was not able to get the money from the Government.
He borrowed the money to pay for studies.
He used [number] acres of land and a house as security for the loan, which he took out in 2007.
He said he wanted to do [a course] and become a [Occupation 1]. He said the amount he borrowed was insufficient to pay for the course, but it was all he could get.
As security for the loan he had offered his family farm and the home that was built on it. The farm is about [number] acres and is a [plantation] in Sabah.
The applicant said he borrowed the money in 2007 and started to study [in] 2009.
He said the [course] charged a registration fee of 100,000 ringgit and he estimated the total cost of the course as being about 300,000 ringgit.
He said he borrowed 100,000 ringgit from the Ah Long.
He took that despite it not being enough, because he planned to start a small business to provide him with further funds. He also planned to use income from the [plantation] to help fund his studies.
The Tribunal asked him how much income the land generated but he said he does not know. He said his family helped him arrange the loan and that his father signed some documents relating to the security. He said the house and land were in his father’s name.
The Tribunal asked the applicant how much interest he had to pay on the loan from the Ah Long and he said 1.8%. The Tribunal asked how often he had to pay interest and he said every month. He said if he fell behind the interest would be levied daily.
The Tribunal observed he would be paying interest of 1,800 ringgit per month. The applicant agreed.
The Tribunal noted that represented a rate of about 21.6% per annum depending on what arrangements existed for any reduction of the capital.
The applicant said it was something like that.
He agreed that the amount he had borrowed was only a third of what he needed to finish his study to be a [Occupation 1].
The Tribunal explained that one of the things it needs to decide is whether it is satisfied that he did borrow money from the Ah Long. The Tribunal said it seemed unlikely he would take out a loan from loan sharks that only covered a third of his needs.
The Tribunal noted that the interest repayments would be challenging from the outset. The applicant agreed.
The Tribunal noted that it seems unlikely he would have sought a loan in his circumstances.
The Tribunal asked what the applicant understood would happen if he did not meet the repayments. The applicant said the house and land that had been offered as collateral would be taken.
He said his family have told him not to come back until he is in a position to repay the Ah Long and redeem the property. He said in the meantime he is helping them as much as he can.
The Tribunal noted that normally where a debt is enforced against collateral security, the security is sufficient to satisfy the debt. The applicant agreed with that.
The Tribunal asked whether, given the applicant had repaid half the debt, there was a credit available to him after the security was realised. The applicant said he had not repaid half the debt. He said he had only made a few months’ repayments.
The Tribunal reminded the applicant that, earlier in his evidence he said he had repaid half of the debt. The applicant denied having said that.
The Tribunal asked the applicant about the [course] he had started. The applicant said the course took 3 years to complete.
The Tribunal asked whether he had completed the course. He said he had not, that he had only done about half the course, about one and a half years’ study.
He said he had moved from Sabah to [Town 1] in Kuala Lumpur in 2009. He said the [school] was in [Town 1].
He said he had borrowed the money from the Ah Long about 2 years earlier, in 2007. He said he borrowed it early because he wanted to use it for some business. He wanted to buy [products] to sell at a profit.
He said he was [age] years old at the time.
The Tribunal suggested it is surprising that the Ah Long would be prepared to lend a substantial amount of money to someone so young. The applicant said he believes they were prepared to do so because he had support from his family.
The applicant said the [trading] was OK for the first 2 months but then the price dropped, and he lost the money he had put into it. He said he lost 20,000 ringgit. He had saved 80,000 ringgit for his [course].
The applicant said by the time his [trading] business failed he had made 3 months of repayments to the Ah Long.
The Tribunal asked about the 1,800 ringgit payments and whether they were pure interest or included a payment of the capital.
The applicant said it was both and that he was told the payment was divided into 1000 ringgit for the principal and 800 ringgit for interest.
He said he had to make the payments for 5 years and that the loan would be repaid if he kept those payments up.
The Tribunal noted that if he repaid 1000 ringgit of the capital per month for 5 years, he would only have repaid 60,000 ringgit. The applicant agreed.
The Tribunal observed that that did not make sense. He would not have repaid the capital in 5 years if he was repaying 1000 ringgit per month.
The Tribunal reminded the applicant that it was trying to decide whether it is satisfied that he did make the loan from the the Ah Long as he claimed.
The applicant then said the loan was not subject to a time frame. He then said he had to repay the entire amount of the loan within 5 years or the security would be taken.
The Tribunal asked the applicant to explain the terms of the loan fully.
The applicant said he borrowed 100,000 ringgit and had 5 years to repay it in full.
He said he had been unable to repay the loan and the Ah Long seized the farm.
He said the Al Long seized the farm in 2014 after he failed to make repayments.
The Tribunal observed that his evidence suggested he had stopped making repayments in 2007. The applicant agreed that is so. He said he stopped making repayments because the [business] had failed.
The Tribunal asked what had happened to him after he stopped making repayments in 2007. He said he went to Kuala Lumpur to avoid the Ah Long.
He agreed that he knew at the time his failure to make repayments and flee to Kuala Lumpur was likely to anger the Ah Long and would also put the family house and plantation at risk. The applicant said he decided to take that risk so he could continue with his studies.
He agreed he was [age] years old at the time and had not, in fact, started his studies.
He said he made the last payment in August 2007 and moved to Kuala Lumpur in 2008. He said he moved in February 2008 and worked there as a labourer before the [course] started at the beginning of 2009.
The applicant said he had 80,000 ringgit left over from the money he borrowed which he put towards his course rather than try to use it to reduce his debt.
The Tribunal reminded him he had said it was 100,000 ringgit to register for [the] course. He said he asked to be allowed to register on payment of 80,000 ringgit, and they agreed.
The Tribunal asked how he convinced them to do that and how he intended to meet the rest of the costs.
He said the [school] agreed to let him start the course on the basis of a payment of 80,000 ringgit and his undertaking to apply for government funding for the rest of the course after 6 months.
He said he did apply for funding after 6 months but that he was not successful because his results were not good.
He said the school gave him another chance, but again his results were not good and he could not continue.
He agreed he had been allowed a 20,000 ringgit discount to register and then failed to pay a year and a half’s tuition for a course that was about 60,000 ringgit per year (a 3 year course with total fees of about 200,000 ringgit).
He said when he stopped studying he did not have any outstanding debt to the college.
The Tribunal noted it seems unlikely that he would be simply forgiven such a substantial debt.
The applicant then said he had been blacklisted in Malaysia and he cannot open an account with any bank.
He then said he probably does have a debt to the [school] but does not know how much that is. This was inconsistent with what he had told the Tribunal shortly before he gave this evidence.
He said he stopped studying in 2010 and returned to the labouring work in Kuala Lumpur. He made about 700 to 800 ringgit a month in that work.
He said he had not made a payment towards his loan to the Ah Long since 2007.
He said the agreement had been that the Ah Long would take his family home and land if he had not repaid the loan within 5 years. He agreed that under the terms of the agreement the Ah Long would have been entitled to take the home and land in 2012.
He said he did not know why they did not take it then. He suggested the Ah Long may have been looking for him. He understood that they had sent people to the village to look for him several times.
The applicant said he had an agreement in writing with the Ah Long but he has lost that document.
He said the house and land were in his father’s name and that his father had also signed the agreement.
He said the agreement was that he repay the whole of the RM100,000 loan in 5 years and that the repayment would be a total of RM180,000 including interest.
He then said there was no other fixed term for the repayment but that he had to make ongoing payments of RM1,800 per month.
He said he was to repay the whole amount of the loan within 5 years at which time the collateral would be returned to him.
The Tribunal observed that a repayment of RM1,800 per month over 5 years would be a total of RM108,000, not RM180,000.
The applicant said the agreement required him to repay the whole loan within 5 years and that the requirement was irrespective of his repayments.
He said after they repossessed the house and land in 2014, the agreement provided that he had 5 years to settle the entire loan sum in which case the property would be returned to him.
The Tribunal advised the applicant that his evidence about the loan seems very unlikely.
The Tribunal put to the applicant that it seems unlikely the Ah Long would offer such a substantial amount of money to a [age] year old boy at what appears to have been an interest rate of about 20% per annum.
The applicant did not dispute that that was his evidence.
The Tribunal observed that 20% per annum is closer to a commercial rate than to the rate usually charged by loan sharks. The applicant agreed with that.
The Applicant said that he would not have qualified for a loan from an ordinary bank.
The Tribunal observed that loan sharks would generally charge a lot more interest. The applicant agreed that they would.
The Tribunal asked if he knew why he was offered such a favourable deal. He thought perhaps because he was able to offer the collateral of the house and land.
The Tribunal observed that after he finished his studies he returned to the labouring work he had been doing in Kuala Lumpur. The applicant agreed that that was what he had done.
He said he kept doing that until he decided to come to Australia. He said he did not return to Sabah because he thought the risk was too high. He said borrowers who fail to repay the Ah Long can be badly hurt.
The Tribunal noted that the Ah Long had taken the collateral offered and that that should satisfy the loan. The applicant agreed.
The Tribunal asked why the applicant would fear the Ah Long in the circumstances. He said he still believes they would look for him. He thinks it is possible the value of the property was not enough to satisfy the loan amount.

100. The Tribunal noted that the applicant had also said he feels obliged to replace the house and land that his family have lost. The applicant said his family want him to buy a piece of land somewhere like Sarawak.
101. The Tribunal asked why he would buy land in Sarawak rather than Sabah. He said to avoid the loan sharks.
102. The applicant said if he returns to Malaysia without being able to buy replacement land for his family, they may not accept him.
103. The Tribunal noted that he had not had trouble from the loan sharks in Kuala Lumpur. The applicant agreed.
104. The Tribunal observed that, as far as he knows the debt to the loan sharks should have been satisfied when they took the collateral. The applicant agreed.
105. The Tribunal told the applicant it seems unlikely that the loan sharks would still be looking for him in relation to a loan he had stopped paying in 2007.
106. The applicant said that he understood the loan sharks might come to look for him and might send people to hurt him and harm him. The applicant’s evidence on this matter was speculative and unconvincing.
107. He said that he previously had evidence of threats from the loan sharks on his phone but that his phone broke and he doesn’t have the evidence now.
108. The Tribunal told the applicant it is concerned about his description of the loan he claims to have made. The Tribunal told the applicant it is doubtful about his suggestion that the Ah Long would be a risk to him if he returns to Malaysia. The applicant did not respond.
109. The applicant was invited to make any general comment.
110. He said that his family are Christians and he was a Christian when he was studying. He said because of the disadvantages suffered by non-Muslims in Malaysia he decided to convert to Islam.
111. He told the Tribunal that his family have now found out that he is no longer Christian and they no longer accept him. He says they insist he return to Christianity before they accept him.
112. The Tribunal asked whether his family’s attitude makes it difficult for him to return to Malaysia. He said it does because he would not be welcome in the village.
113. The Tribunal observed that that seemed unlikely as he had not lived in the village since 2008 and had not lived with his family for about 16 years. The applicant agreed he had not. He did not have any further comment to make.
114. The Tribunal further notes the applicant’s evidence that his family intend to move away from the village to Sarawak if they can.
115. The Tribunal advised the applicant that if he wanted to provide any further information it would be considered as long as he provides it before the decision made. The applicant said he did not propose to provide anything more.
Summary of Claims and Factual Findings
116. The applicant’s claims broadly arise from three matters.
117. The first is that he claims to fear harm at the hands of loan sharks.
118. The second is that he claims to fear his family who require him to replace the farm and home that was seized when he did not repay the loan.
119. The third is that his family and his home village in Sabah will reject him because he has converted to Islam from Christianity.
Loan Sharks
120. The Tribunal has considered the applicant’s evidence that he borrowed RM 100,000 from loan sharks and faces harm because of that loan.
121. The applicant’s evidence was inconsistent and unconvincing as to the terms of the loan, the amount of interest he was to pay, how he was to repay the loan, and the effect of failing to make the payments.
122. Further, the applicant could not say why the loan sharks took seven years to enforce the loan against him, whether the loan was satisfied by the taking of the security that was offered, or what the loan sharks would do to him if he returns to Malaysia.
123. The Tribunal is not satisfied that the applicant took a loan from loan sharks as he says he did.
124. The Tribunal is not satisfied the applicant faces harm of any kind at the hands of loan sharks if he is returned to Malaysia.

Need to Replace the Family Home
125. The applicant says that the Ah Long seized the family home and plantation because he did not repay the loan, and his family require compensation.
126. The Tribunal is not satisfied the applicant borrowed money from the Ah Long.
127. The Tribunal is not therefore satisfied the applicant’s family home and plantation were seized by the Ah Long as security for the loan, as the applicant claims they were.
128. The Tribunal is not satisfied the applicant faces any harm at the hands of his family by reason of not having recovered or replaced the family home and plantation.
Rejection by his Family and Village in Sabah Due to his Conversion to Islam
129. The applicant claimed in his evidence that his conversion to Islam would lead his family to reject him, and means he cannot return to his home village in Malaysia.
130. The applicant said his family knows he has converted to Islam.
131. The Tribunal is satisfied the applicant has converted to Islam.
132. The applicant gave evidence he has been supporting his family in Malaysia.
133. The applicant had left his home village about 9 years before he left Malaysia. He worked as a labourer in Kuala Lumpur for about 7 years of that time.
134. The applicant has not lived in his home village or with his family since about 2008.
135. The Tribunal is not satisfied the applicant would seek to return to his home village or to live with his family if he returns to Malaysia.
136. Further, the Tribunal is not satisfied the applicant’s family would reject him given that he has been helping them since he has been working in Australia.
137. The Tribunal is not satisfied the applicant fears harm because of his conversion to Islam.
S36(2)(a) - REFUGEE CRITERION
138. 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. This is called the “refugee criterion”.
139. S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
140. The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is of Malaysian nationality. Further, the Tribunal is satisfied that the applicant is outside Malaysia.
141. The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Malaysia, which is the next part of the definition of “refugee” at 5H(1)(a).
142. S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
a.The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
b.There is a real chance that, if the applicant returned to Malaysia he 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 Malaysia.

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.

144. The Tribunal has considered the applicant’s claims to fear harm and is not satisfied of the credibility of those claims.
145. The Tribunal is not satisfied the applicant fears being persecuted by loan sharks.
146. The Tribunal is not satisfied the applicant’s family home and plantation were seized by loan sharks and that he fears persecution by his family because of that.
147. The Tribunal is not satisfied the applicant fears that, if he were returned to Malaysia he would be persecuted for reason of his conversion to Islam.
148. The Tribunal is not satisfied the applicant meets s 5J(1)(a) and he does not, therefore, meet the definition of ‘refugee’ in the Act.
Conclusion re Refugee Criterion
149. The applicant does not meet the definition of “refugee” in s 5H(1) and does not come within S36(2)(a).
S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION

Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), he may nevertheless be entitled to the grant of the visa if he meets s 36(2)(aa) (‘the complementary protection criterion’).

151. To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of him being removed to Malaysia there is a real risk that he will suffer significant harm.
152. The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
153. S36(2A) provides 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.

154. The Tribunal has considered the applicant’s claims in considering the refugee criterion.
155. The Tribunal was not satisfied that the applicant took a loan from loan sharks as he says, that his family home and plantation was seized by the loan sharks as he says, or that he will suffer because of his conversion to Islam as he says.
156. The Tribunal has considered the definition of ‘significant harm’ and, using the same reasoning as it applied in considering the fear of persecution in the refugee criterion, finds that there is not a real risk he will suffer significant harm as a necessary and foreseeable consequence of him being removed to Malaysia.
Conclusion re Complementary Protection Criterion
157. The applicant does not meet the complementary protection criterion in S 36(2)(aa).
Conclusions
158. 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).

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).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) 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.

161. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
162. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O'Loughlin
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1806

24 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction