1905544 (Refugee)

1905544 (Refugee) [2024] AATA 3247 (1 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1905544

COUNTRY OF REFERENCE: Malaysia
MEMBER:Suseela Durvasula
DATE:1 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 July 2024 at 9:33am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – loan shark gang former member – fear of killing – physical assault – separation from family – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQOT (2012) 206 FCR 145
SZRSN v MIAC [2013] FCA 751
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 dependants.
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 8 March 2019 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 14 December 2018. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owes protection obligations.
The applicant appeared before the Tribunal on 1 May 2024 via video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Background
The applicant is [an age]-year-old Malaysian national who was born in Johor.
In his protection visa application, the applicant states he is divorced. He lived in [District 1], Selangor state in Malaysia from his birth until he travelled to Australia in August 2015. He states that he was never employed in Malaysia, spent time as a ‘freelancer’ and was financially supported by his family.
The delegate’s decision record, which the applicant provided for the purpose of the review, sets out his immigration history. He arrived in Australia [in] August 2015 on an Electronic Travel Authority visa. This visa ceased on 29 November 2015 and he became an unlawful non-citizen. On 24 February 2016, he applied for a protection visa. However, this application was found to be invalid and his Bridging C visa ceased on 18 May 2016 and he became unlawful again. The applicant made a second application for a protection visa on 14 December 2018, which is the visa that is the subject of this review.
At the hearing, the applicant gave further information about his background. He clarified that he has never married and is not divorced. He has a de facto partner, whom he met in Australia, about one year after he came to Australia. He has [children] from this relationship, aged [respective ages]. His partner is a Malaysian national. In Australia, he has lived in regional Victoria, doing [specified] work.
His parents and [specified family members] live in Malaysia. They all live together in Johor. The applicant stated that he was born in Johor but he grew up and lived with his parents in a smaller regional town called [Town 1], in the [District 1] district. He lived there until 2015.
In relation to his educational background, the applicant stated that he stopped attending school when he was [age range] years old as his father got sick and could not afford to support the family. The applicant had to go out to work. He did [specified work] for about 5 years, until he was [age range] years old. He then [did different duties] for about 8 or 9 years. After that, he joined a loan shark gangster group, giving out loans and doing debt collection. He did this for about 5 years.
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 (Cth). 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–5LA, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether there is a real chance, if the applicant returns to Malaysia, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant has provided a copy of his passport to the Department and Tribunal which shows he is a Malaysian citizen. The Tribunal finds, based on the applicant’s passport, that he is a national of Malaysia and has assessed his claims on this basis.
Applicant’s protection visa claims
In his protection visa application, the applicant states he had to leave Malaysia because he was involved with gangsterism. There were a lot of gangsters living near his home when he was young. He did not attend school so he got involved with gangs. The group was called ‘[name]’ which indicates high-risk gangsters. When the situation got worse, he had to leave the group. They started hunting him and threatened to kill him. At times he was attacked by his own friends and could not trust anyone. He had no choice and had to leave Malaysia or risk being killed. He could not relocate elsewhere in Malaysia as the gang’s network was large and they had connections.
At the hearing, the Tribunal asked the applicant why he could not return to Malaysia, and what he feared would happen if he returned. The applicant stated that he fears harm from a gangster group. He lent money out and he could not get it back, so they threatened to kill him. He also does not want to be separated from his [children].
The Tribunal asked the applicant about his involvement in the gang. The applicant stated that he joined the ‘[Gang name 1]’ in about 2010. Their role was to lend money to people who needed it and to collect debts. He explained they were similar to the loan sharks or ‘Ah Long’. The applicant worked as an intermediary between the bosses who would give him the money and the borrowers. He would lend the money and collect the debts. He never used force or violence to collect the money. He did the job as he did not have much education and it was an easy way to make money – he could earn about MYR 20,000 to 30,000 a month.
In 2015, the gang leaders noticed that the applicant had kept lending out money but there was no money being repaid. One person had borrowed MYR 2 million but was unable to pay it back. The applicant did not want to use force on this person, so he was unable to recover the loan. His gang leader thought the applicant had taken the money for himself.
When the applicant could not repay the money, 8 people from the gang beat him in a factory, which was also the office of the [Gang name 1]. They gave him one month to pay the money back. If he could not pay, they said they would kill him. They did not take any action against the person who had actually borrowed the money.
One month later, the gang came to his parents’ home and sprayed red paint on the home. The applicant was not at home at the time, so they told his mother he should get out. The applicant went into hiding and stayed with his friend in Negeri Sembilan (about [distance] away from his town). Gang members did not find him there. The gang members continued to visit his family about 2 or 3 times a week. His family could no longer put up with it, so they moved to Johor, about [distance] away. The applicant helped his family move and then came to Australia 2 days later.
The Tribunal asked the applicant why the gang did not pursue the person who had borrowed the money if they were concerned about recovering the money. The Tribunal discussed with the applicant, independent country information from DFAT stating that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members. This appeared to indicate that the gangsters would have pursued the borrower to recover the money. The applicant responded that this information was not correct. He was the person in charge of the money, so if anything went wrong, he would have to take responsibility.
The applicant stated that he decided to come to Australia as he has a friend here and his mother helped him to apply. When he first arrived in Australia, he went to work in [Town 2] doing [specified work]. He was working illegally and his visa expired. Later, he met a Malaysian person who helped him make the protection visa application in February 2016. He told his friend his information and they completed the application for him. He missed the email notification to provide his biometric details, so the application was found to be invalid. He could not find his friend again for a while, so did not apply for the visa again until December 2018.
The applicant confirmed that neither he, nor any of his family members, have had any contact with the gang members since he has been in Australia. The Tribunal put to the applicant that given the significant passage of time (9 years since the incident in 2015), and the lack of contact from the gang, there may be no real chance of serious harm or real risk of significant harm from the gang if he were to return to Malaysia. The applicant responded that his parents have now moved to Johor so they would not be able to find his parents.
The Tribunal asked the applicant where he would live if he returned to Malaysia. The applicant stated that he would not live in [Town 1] as his family no longer live there. The Tribunal asked the applicant if he would live with in Johor with his parents. The applicant responded that if he went back, the gang could use the police to contact him, wherever he went. They may not find him immediately, but if he started working again, they would find him. They may find a record that he had returned to Malaysia as he enters the airport. His gang boss has many branches across the country, including in Johor. He has changed his email address and contact phone number, but believes that if he goes back, he would be killed. He would not want to put his children in a risky situation.
The Tribunal asked the applicant why the gang would use the police to contact him if they were an illegal operation. The Tribunal put to the applicant, independent country information from DFAT stating that loan sharks and their associated enforcement gangs are illegal. In these circumstances, it did not seem plausible that the loan shark gang would draw attention to themselves by contacting the police. The applicant responded that these gangs are very powerful and in Malaysia, if you have money you can do anything.
The applicant confirmed that he did not fear harm for any other reason.
Summary of applicant’s claims
The applicant’s claims may be summarised as follows. The applicant claims that he was previously a member of the ‘[Gang name 1]’ in Malaysia. He claims they were involved in loan shark activities and his role was to lend money and recover loans. He claims that in 2015, the gang leader accused him of taking money from loans and asked him to repay the money. The applicant claims that when he could not repay, gang members beat him and threatened to kill him. He claims they splashed red paint on his parents’ home and he went into hiding at a friend’s place in Negeri Sembilan. The gang continued approaching his parents and his parents moved. He claims he left Malaysia as he feared harm from gang members. The applicant claims that if he returns to Malaysia, he may be harmed again by the gang members.
Country information
The Tribunal has had regard to the following information about gang and loan shark activity in DFAT’s Country Information Report on Malaysia:[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia (24 June 2024),
Gang activity
2.30 Gangs continue to operate in Malaysia. In 2022, local media reported that 72 underworld gangs were being monitored by police as potential threats to the country. In-country sources reported that many street-level gang members were Indian Malaysians, in part reflecting their relative economic vulnerability. In-country sources also reported high-level crime, including drug trafficking, was more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan sharking. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them due to fear of retaliation.
Victims of Loan Sharks
3.149 Usury is illegal. The Moneylenders Act (1951) requires that moneylenders have a licence and not charge interest rates above 18 per cent for an unsecured loan, which must not compound. Loan sharking is also covered under section 427 of the Penal Code, which prohibits ‘committing mischief’ and can carry a five-year prison term.
3.150 In practice, loan sharks or ‘pay-day financiers’ (unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), operate openly in Malaysia and charge interest as high as 50 per cent. Advertisements for cash loans appear on public property, including lamp posts and utility boxes. Loans offered through social media or smartphone apps are also common.
3.151 Motivations for taking out loans vary and can include gambling and economic disruption caused by the COVID-19 pandemic. Others take out loans for to finance small business which, if the business fails, sometimes become unsustainable debts. Loans are also made by people rejected by banks or who find bank decision-making slow or to require a lot of paperwork.
3.152 Those who do not repay loans face serious harassment. On rare occasions, victims of loan sharks have faced violence or have been sold into slavery. It is common for borrowers to have their house splashed with red paint, which is generally culturally understood to mean that they have not paid debts, causing public shame. They sometimes have their picture or pictures of their identity documents posted on telegraph poles, and families are sometimes harassed. Loan sharks sometimes hold victims bank cards or passports as collateral. Loan sharks sometimes continue their harassment even after loan has been paid off.
3.153 State protection is available to victims of loan sharks, but it is often ineffective. Being the victim of a loan shark is often perceived as a moral failing, and some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them. Formal credit agencies can consolidate loan shark debts and provide payment plans, providing some options for victims.
3.154 DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available but not always effective.
Findings on applicant’s claims
The Tribunal has assessed the applicant’s evidence and considers that he provided a plausible explanation about his involvement in a loan shark gang. The Tribunal accepts that the applicant’s background and limited education made him susceptible to getting involved in a gang in order to boost his income. Having regard to the DFAT Country Information Report about the prevalence of gang activity in Malaysia and the applicant’s evidence, the Tribunal accepts the applicant’s claims that:
a.He was a member of the ‘[Gang name 1]’ from 2010 to 2015.
b.The gang was involved in loan shark activities. The applicant’s role was to lend money and collect debts.
c.In 2015, he was unable to recover some debts and gang members suspected him of keeping the money for himself.
d.As a result, he was threatened and beaten by 8 gang members.
e.Gang members splashed red paint on his parents’ home.
f.His parents moved from their home in [Town 1] to Johor following this incident.
g.The applicant stayed with a friend in Negeri Sembilan shortly before he came to Australia.
h.The applicant’s family live in Johor. He currently has no family in [Town 1].
Future harm
The Tribunal must now consider whether there is a real chance that the applicant would face harm from gang members if he returned to Malaysia, now or in the reasonably foreseeable future. The Tribunal has accepted that the applicant experienced some level of past harm from gang members when he left Malaysia in 2015. However, for the reasons set out below, the Tribunal does not accept that the applicant would face harm from gang members, now or in the reasonably foreseeable future, if he returned to Malaysia.

Firstly, on the applicant’s own evidence, the last time he had contact with gang members was in 2015, approximately 9 years ago. He has not had any contact with them since he has been in Australia, and they have not contacted his family in Johor or sought to harm them. These circumstances contradict the applicant’s evidence that the gang is actively seeking him out and would use its connections to find and harm him and his family, wherever he lived in Malaysia. His family have not been contacted in the 9 years they have lived in Johor. Given the lack of contact and the significant passage of time, the Tribunal finds that in these circumstances, there is no real chance that the applicant would experience harm from gang members if he returned to Malaysia.
Secondly, the Tribunal does not accept that gang members would take action against the applicant for not repaying loan monies, in circumstances where they have not sought to recover the money directly from the borrower. The Tribunal does not accept the applicant’s explanation that he is the only person responsible for repaying the loan. The Tribunal prefers the independent country information from DFAT which indicates that gangsters do in fact harass borrowers and their family members who have been unable to repay debts. The Tribunal does not accept that the applicant would continue to be held responsible for a debt that was owed by another person, particularly after 9 years.
Thirdly, the Tribunal does not accept the applicant’s evidence that gang members would pay money and use the police and government authorities at the airport to find out his whereabouts if he returned to Malaysia. As discussed with the applicant at the hearing, this is inconsistent with the independent country information that loan shark and gang activities are illegal in Malaysia. While state protection available to victims is often ineffective, the Tribunal does not accept that the police would actively condone loan shark activity given that it is illegal. The Tribunal does not accept that criminal gangs would draw attention to themselves by directly contacting the police or the authorities to find out the applicant’s whereabouts if he returns to Malaysia.
In summary, for the reasons set out above, the Tribunal finds there is no real chance that the applicant would face serious harm from gang members if he returns to Malaysia. The Tribunal finds there is no real chance of serious harm from gang members regardless of where the applicant chooses to live in Malaysia – whether that be in his previous place of residence in [Town 1], in Johor with his family, or elsewhere in Malaysia.
The Tribunal finds that if the applicant returns to Malaysia, he would live and work in Johor where he was born and where his parents and [specified family members] currently live. The Tribunal is satisfied that he would be able to find work and have sufficient support from family members. The Tribunal finds he would not return to his previous place of residence in [Town 1] because he currently has no family or connections there, not because he faces a real chance of serious harm.
Separation from family members
The Tribunal accepts that the applicant is in a relationship with a Malaysian national who lives in Australia and he has [children] from that relationship who are not Australian citizens. The Tribunal is not satisfied that these circumstances amount to serious harm if the applicant returns to Malaysia. The Federal Court has found that mental harm to an applicant caused by separation from family members arising from the applicant’s removal from Australia would not of itself amount to persecution.[2] Therefore, the Tribunal is not satisfied the applicant would face serious harm if he returned to Malaysia, due to any separation from his Malaysian citizen partner and children.
[2] MIAC v SZQOT (2012) 206 FCR 145
Overall assessment
The Tribunal has considered the applicant’s claims individually and cumulatively. Having considered the evidence as a whole, the Tribunal is not satisfied that if the applicant returns to Malaysia, now or in the reasonably foreseeable future, he faces a real chance of serious harm.
Accordingly, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal is not satisfied the applicant meets the definition of refugee in s 5H(1) of the Act.
Complementary protection
The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm (s 36(2)(aa) of the Act).
The Tribunal takes into account the above findings of fact in relation to the ‘real chance’ test and its findings that the applicant would not face serious harm if he were removed from Australia to Malaysia. The Tribunal has not accepted that the applicant would face any harm from gang members if he returns to Malaysia, regardless of where he lives. Therefore, the Tribunal also does not accept that the applicant would face ‘significant harm’, as that term is defined in s 36(2A). That is, the Tribunal does not accept the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subject to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal is not satisfied that the applicant’s separation from his de facto partner and children would amount to serious or significant harm. The Federal Court in SZRSN v MIAC and the Federal Circuit and Family Court in GLD18 v MHA, have confirmed that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A).[3]
[3] SZRSN v MIAC [2013] FCA 751 at [47]–[49] and GLD18 v MHA [2020] FCAFC 2 at [36]–[58]
In summary, the Tribunal is not satisfied there is a real risk that the applicant will experience significant harm as defined in s 36(2A) of the Act. Therefore, the Tribunal is not satisfied, on the evidence, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. The Tribunal does not accept that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
CONCLUSION
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).
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Suseela Durvasula
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 3247

1 July 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction