1902392 (Refugee)

1902392 (Refugee) [2021] AATA 3196 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1902392
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Wendy Banfield
DATE:30 June 2021
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 June 2021 at 4:00pm
CATCHWORDS

REFUGEE – Protection visa – Malaysia – fears harm from loan shark – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 499
Migration Regulations 1994, cl 866.211
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 23 January 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 22 March 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 24 June 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Applicant's Identity and Country of Reference
The applicant stated in his application for a protection visa that he was born on [date] in [Country 1]. His family migrated to Malaysia when the applicant was [age] or [age] years old and he is a Malaysian national. The applicant provided a copy of his Malaysian passport to the department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that he is a citizen of Malaysia and as such his protection claim will be assessed against Malaysia as the country of reference and 'receiving country' respectively.
Migration History
The applicant arrived in Australia [in] February 2018 on an Electronic Travel Authority (ETA) and has not departed since.
Claims for protection and supporting documentation
The applicant first submitted claims for protection when he made an application to the Department on 22 March 2018. The applicant claimed he left Malaysia for the following reasons:
My father in 2004 got a loan from private lender in [location]. He was doing his business as my father told me. In 2015 we had great setback in business, my father was enable to return loan. He took my father to hospital and sold his kidney. Then I was working in store I was given all my salary to them. But after a while they started chasing me they wanted me to took their camp work for them and wanted sold my body organs to recover their loan.
They will make me salve and sold my organs.
Yes once they caught me and did my torture.
I tried from police but they refused.
…I am very young I am scared that they will sale my body parts. [errors in original]
The applicant has not submitted any supporting documents to the Tribunal.
Applicant's evidence at the hearing
The applicant was asked if anyone helped him with the application for a protection visa. He said a friend helped him because he had only gone to school until “Form 3” and his English was not very good. He said he met a Malaysian friend here, but that person has since gone back. The applicant was asked if everything in the application is true and correct. He said he understood it was. The applicant advised he had told his friend his situation and that person had filled in the application.
The applicant confirmed he is a citizen of Malaysia but stated he was born in [Country 1]. His family moved to Malaysia, first his father was there for work and he married in [Country 1]. The applicant went to Malaysia when he was [age] or [age]. He said his parents are in Malaysia, originally living in Sabah state but they moved to Kuala Lumpur. The applicant has [number of siblings]. He said he is the oldest child in the family. The applicant has a brother in Australia who is [age] or [age], and the applicant is nearly [age]. The applicant said his brother has applied for protection, but the applicant was unsure because his brother does not live with him. The applicant stated he is not married and has no children.
According to the applicant, he completed Form [level] of high school, which is equivalent to Year [level]. He said he never worked in Malaysia but when asked what he did after school, he said he helped his father in [a] shop. The applicant said he came to Australia two and a half years ago. Regarding his reason for travelling to Australia, the applicant referred to “his reasons” and that he just bought a ticket and left, then his friend told him he could apply for protection. The applicant is currently living in [City 1] and works in [a] factory. He said he had previously worked [at a workplace] but the obtained a permanent job because his father told him it was not safe in Malaysia.
The Tribunal reminded the applicant about the criteria that has to met to be granted a protection visa in Australia. The applicant was asked about his fears if he returns to Malaysia. He said his father borrowed “illegal money” from a loan shark in 2004 which he had been paying back little by little. However, the applicant claimed they decided to sell his father’s shop but because the loan was not settled, “they began attacking my dad”. He said he did not know why his father borrowed money because he was too young, and his father had not told him. The applicant was asked how much was owed and he did not know. He also did not know how much the original loan was for. He stated it was his belief there was still money owed.
The Tribunal asked the applicant what had happened after the family’s shop was sold. The applicant said “they [his parents] stay at home because they are too scared to go out”. He said he sends them a little money for groceries. According to the applicant, the shop was sold after he (the applicant) came to Australia and his parents went to Kuala Lumpur. The applicant claimed his parents wanted to go to another country but because of COVID, they are stuck there. When asked what happened about the debt the applicant said he was not sure but he “became involved”. He referred to people coming to their shop in Sabah to recover the debt, so they left and went to Kuala Lumpur.
The Tribunal asked the applicant what he was afraid of since it was not his debt. He said he was afraid of being harmed. The applicant claimed his father was suffered harm when four or five people went to the house and to the shop to take things of value. He said that was when his father sold the shop to keep things quiet, but they had to go to Kuala Lumpur. The Tribunal asked if his father was harmed and he said he was. He went on to say he and his father were threatened with a knife and a pipe. According to the applicant’s evidence, his father was hit on the head and back. He said he was there at the time but was not harmed, he claimed he was restrained and told that if he moved, he would be hit too. When asked if they went to the police, the applicant said they had not because they did not want his younger siblings to be harmed. When asked if he didn’t think the police could help, the applicant said they were scared they would lose their family. The Tribunal put it to the applicant that what he said occurred was against the law and he could report the matter. The applicant said they would not be able to offer protection “24/7” and the offenders could come at any time.
The applicant claimed his father was attacked “a couple of times”. He was asked why he had to leave if it was his father’s loan. The applicant referred to the family not being able to pay the loan, the fact that they sold the shop and had to move to Kuala Lumpur. The applicant said as the oldest, he was threatened as well. The applicant said he was depressed, and his father told him to leave. The applicant was asked specifically what he was afraid of about going back to Malaysia. He said he feared being harmed or killed. The Tribunal put to the applicant that if the loan was taken out in 2004, it was unusual anyone would still be trying to recover the debt or making threats. The applicant stated they have had to pay the interest which kept increasing over time. The applicant confirmed he was a small child when his father took out a loan.
The Tribunal asked the applicant if his family were safe after moving to Kuala Lumpur. He said they are scared to go out and he must send them money. He said his brother in Australia is also working and lives in [City 1]. The applicant explained his brother is working at the same place in [City 1] as the applicant, but they do different shifts at the factory, one working in the morning and the other in the afternoon. The Tribunal asked if he or his father had ever asked for help from anywhere about his debts or sought any type of assistance in their home country. The applicant explained his father never went to school. The Tribunal advised the applicant there were support services available in Malaysia, but the applicant claimed they did not know where to seek help.
The applicant was asked how he had found out about coming to Australia, including where he could live and work. He said when he first arrived, he went to the mosque and asked if anyone could help him. The applicant said he was told to go to a farm and began making a little money and was living with friends. The applicant claimed his father is “just hiding” in Kuala Lumpur. He said his father is just scared he will be found. He was not sure whether there had been any trouble since his family moved to the capital. He reiterated they are too scared to go out.
The Tribunal then asked the applicant about his original application for the protection visa. It was put to him that he had said his father was taken to hospital and his kidney was sold. The applicant denied that had occurred and said his father had been cut with a knife. He reiterated his father did not have a kidney sold. When asked why it was in his application form, the applicant said his friend may have put that. He denied there had ever been threats of that nature. When asked what he feared about returning to Malaysia, he said that he will be harmed or killed. Even though it was not his debt, the applicant said they would want him to pay.
Regarding having been born in [Country 1], the Tribunal asked if the applicant’s family had considered going there. He said he did not know about it and he does not have any contact with anyone there. The applicant indicated he does speak the language because his family use it at home. The Tribunal asked why the applicant came to a country like Australia where he does not speak the language. He claimed it was his father who bought him a ticket and took him to the airport to depart.
The Tribunal considered relevant country information in relation to illegal money lending in Malaysia and government action to address the problem.
Country Information – Malaysia – loan sharks
Access to debt support services
The Malaysian state recognises the threat that loan sharks represent and a number of government and non-government agencies are tasked with trying to prevent people engaging loan sharks, or to negotiate with loans sharks to settle debts, or to encourage the reporting of loan shark activities to the police.[1] Anecdotal evidence reported in 2018 that seven out of ten borrowers would either lodge a police report or seek assistance from NGOs when an ahlong attempted to collect payments.[2]
[1] ‘Malays most notorious for borrowing from Ah long, says PPIM’, Free Malaysia Today, 5 July 2016,   ‘Loan shark menace worsens in M’sia’, The Sundaily, 2 October 2013. ‘KL Consumer Safety Association - No need to fear the loan sharks’, Bernama (Malaysian National News Agency), 17 February 2015, ‘Loan sharks sharpen their bite’, The Star, August 2018
The government’s Credit Counselling and Debt Management Agency (AKPK) offers credit counselling on financial status and budgeting to encourage people to use financial institutions under the purview of BNM, rather than loan sharks.[3] The government in some provinces (Penang) has agreed to repay the loans of its own civil servants, minus interest, to the loan sharks.[4]
[3] AKPK, ‘Loan sharks and their illegal activities’, July 2013.
[4] See Free Malaysia Today news, 2017, “Penang to help civil servants caught in loan shark web’, 6 February,
The non-government Malaysian Muslim Consumers Association (PPIM) has a unit (Ceti Haram Anti-Corruption Unit) dedicated to resolving loan shark debt by renegotiating its terms with the loan shark. It claims to have resolved thousands of cases (for a service fee). The Unit’s webpage (ahlong.ppim.org.my) allows people to report their individual cases to the agency, and in response the agency indicates that:[5]
[5] A Google Translation of this webpage accessed April 2020 provides details on how the cases are approached: see also ‘Malays most notorious for borrowing from Ah long, says PPIM’, Free Malaysia Today, July 2016 investigating officer reviews and handles the case based on the information received
·     The investigating officer negotiates with ahlong to stop the threat, stop the interest, reduce the claim and reschedule the payment.
·     The complainant is not allowed to communicate with ahlong so that the case can be controlled and there is no ongoing threat. Please contact the investigating officer or the PPIM Illegal Anti-Corruption Unit hotline if there are any threats or offers from ahlong.
·     The repayment period is extended
·     Complainant no longer has to communicate with ahlong, all related matters will be handled by officials without the complainant's involvement.
·     Monitoring the safety of the complainant throughout the case.
·     Complainant's personal information is kept confidential.
·     Counseling and counseling sessions throughout the case management.
·     Guarantee of settlement of cases as long as the complainant adheres to the terms and conditions set forth.
The NGO Malaysian Chinese Association’s (MCA) Bureau of Coordinating Government Affairs provides a similar service to renegotiate the terms of loans with loan sharks on behalf of borrowers.[6]
[6] ‘Many still found borrowing from loan sharks’, MCA website May 2017
Debtors access to state protection
The Malaysian government has acted against illegal money lenders over several decades on diverse fronts, including by legislation, police investigation and prosecution, the removal of loan shark advertisements, and through publicity campaigns. Illegal money lending is an offence under the Moneylenders Act 1951 and punishment includes fines and imprisonment. Police powers under the Act and the penalties are summarised as follows by DFAT:
The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both.[7]
Sections 5(2) and 29(B) of the Moneylenders Act 1951 (as at May 2015)[8] state:
5 (2) Any person who carries on or advertises or announces himself or holds himself out in any way as carrying on the business of moneylending without a valid licence, or who continues to carry on such business after his licence has expired or been suspended or revoked shall be guilty of an offence under this Act and shall be liable to a fine of not less than two hundred and fifty thousand ringgit but not more than one million ringgit or to imprisonment for a term not exceeding five years or to both, and in the case of a second or subsequent offence shall also be liable to whipping in addition to such punishment.
Harassment or intimidation, etc. of borrower
29B. (1) Any moneylender who, either personally or by any person acting on his behalf, harasses or intimidates a borrower or any member of the borrower’s family or any other person connected with the borrower at, or watches or besets, the residence or place of business or employment of the borrower, or any place at which the borrower receives his wages or any other sum periodically due to him, shall be guilty of an offence under this Act and shall be liable to a fine of not less than fifty thousand ringgit but not more than two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both, and in the case of a second or subsequent offence shall also be liable to whipping in addition to such punishment.
The police do actively investigate and prosecute illegal money lenders. Police actions against individual loan sharks under Section 5(2) are reported on regularly in the Malaysian media.[9] Major operations are undertaken by the police every few years to investigate and prosecute loan sharks. Most recently in October 2019, Inspector-General of Police announced that loan sharks also “could face action under Anti-Money Laundering, Terrorism financing and Proceeds of Unlawful Activities Act (AMLA)…a multi-prong legal approach”.[10] Similar police operations against loan sharks occurred in 2014 and in 2017.[11]
[7] DFAT, Country Information Report - Malaysia, December 2019.
[8] Moneylenders Act 1951 (As at 1 May 2015)
[9] ‘14 held for illegal money lending in Pahang, items worth RM1million seized’ NST, November 2019 ‘Violent gang of loan shark members nabbed’ The Star, Jan 2020
[10] ‘We are coming after you, IGP warns loan shark’, Bernama, Oct 2019
[11] ‘Loan shark ring busted, 31 nabbed in nationwide raids’ The Sun Daily, April 2017 Tan, S C, ‘Crackdown on Ah Long’, The Star Online, 25 April 2014 ; Police: Over 2000 loan shark cases reported from Jan 2016 to July 2017’, The Star Online, 7 August 2017 OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicants are persons 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
The Tribunal found the applicant provided inconsistent evidence to the Department than that given to the Tribunal. The applicant claimed a friend had helped him complete the application for protection form but stated his belief that it was true and correct. However, when asked about its content, specifically that his father had been taken to a hospital where his kidney had been sold, the applicant stated that information was not correct, and no such act had occurred. In his application form the applicant also stated he had personally been subjected to “torture”, without any detail included. The applicant did not make this claim before the Tribunal. Conversely, during the hearing the applicant made claims that his father was physically attacked several times because of an outstanding debt. He described one occasion in which four or five people allegedly attended their house and shop making threats with a knife and a pipe. The applicant said his father was hit on his head and back by the assailants, and that the applicant himself, who was present at the time, was bodily restrained and threatened. The applicant did not make these claims before the original decision maker.
Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.[12] In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, s 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence. The Tribunal is not satisfied the applicant’s submission that a friend may have included information about the applicant’s father having a kidney removed is a reasonable explanation of why untrue claims were made. The Tribunal draws an unfavorable inference to the credibility of the applicant’s claims. Nevertheless, the Tribunal is prepared to accept the applicant’s family had debts that they were unable to repay and may have been threatened as a result.
[12] Section 423A of the Act was inserted by item 14 of sch 1 to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) and, by operation of item 15(4) to that Schedule, applies to protection visa applications made on or after 14 April 2015.
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. The applicant did not make any claims in relation to his race, religion, nationality or political opinions.
The applicant did not make any specific claim that he was a member of a particular social group, but the Tribunal nevertheless considered his submissions that his family had borrowed money from an illegal lender to help with their business. The applicant made conflicting claims about having suffered actual harm and having been threatened by people attending his home and father’s business, causing the family to sell their shop and move. He also alleged that as the oldest child in the family, the loan sharks expected him to repay the funds as well. Giving the applicant the benefit of the doubt that he has some fears from an illegal money lender, the Tribunal has considered whether the applicant has access to effective protection measures as the family member of a debtor to loan sharks.
The Tribunal finds that even if a loan shark organisation demands repayment from the applicant for a debt incurred, the applicant is able to report any threats to police and he and his father can access support services to deal with the matter. The police have the authority to deal with threats of violence while government and non-government organisations have procedures in place to assist people to manage debt and to act on the borrower’s behalf in any disputes. This removes the need for an individual to deal with the illegal lender and allows them access to a range of support services. In view of this, the Tribunal considers the chance of serious or significant harm occurring now or in the reasonably foreseeable future, because of a claim against the applicant or his family for an outstanding debt is remote.
Further, recent available country information indicates that the Malaysian police and other authorities take effective action against the unlawful acts of loan sharks. The authorities have conduced raids and arrests of loan sharks, as well as public campaigns against the use of unlawful moneylenders and loan sharks. They report successfully closing down a number of loan shark operations. The police are reportedly also encouraging victims to report illegal acts by moneylenders and there appears to be a willingness to do so. The government in one state has agreed to repay the loans of its own civil servants, minus interest, to the loan sharks. The Tribunal finds this a further indication of the state's willingness to assist victims of loan sharks. In light of this information the Tribunal is satisfied that there is effective state protection available to the applicant and his family from harm by the loan sharks.
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).
For these reasons, the Tribunal is not satisfied that there is a real chance that on return to Malaysia now or in the reasonably foreseeable future, the applicant would face harm due to his membership of the particular social group. 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
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). 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.
The applicant has not satisfied the Tribunal that he could be subjected to any treatment by any authority, group or person that meets the definition of significant harm. The Tribunal is not satisfied the applicant did suffer any actual harm while in Malaysia and that his evidence in this regard is unreliable. This is because of the significant inconsistencies in his accounts of events over the years since the date of the loan in 2004. Based on the assessment set out above, the Tribunal is not satisfied the applicant has demonstrated he faces a real risk of suffering significant harm if he returns to his home country. There is no evidence he could be subjected to any of the criteria outlined in s.36(2)(aa) of the Act.
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. Based on the evidence provided, the applicant has not established a claim to protection in Australia. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…

[2021] AATA 3196

30 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction