1920622 (Refugee)

1920622 (Refugee) [2021] AATA 2924 (23 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1920622

COUNTRY OF REFERENCE: Malaysia
MEMBER:Wendy Banfield
DATE:23 June 2021
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 June 2021 at 4:35pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – low income household – economic conditions – borrowing money to support family – government welfare benefits and social assistance – employment opportunities – vague and inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), 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 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 15 July 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 19 June 2019. 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 22 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 the Tribunal’s 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 [his home town in] Perlis, Malaysia. 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] September 2016 on an Electronic Travel Authority (ETA) and has not departed since.
Claims for protection and supporting documentation
The applicant submitted claims for protection when he made an application to the Department on 19 June 2019. His written claim at the time was as follows:
Due to my education background which is not good I am unable to get a permanent job in my country. Which unable me to pay off my debts and support my old aged parents. My country economic problem worsen more my situation.
Regarding what he thinks will happen if he returns to Malaysia the applicant stated:
If I return back, I will be jobless and full of debts due to my country economic situation. I will in mental torture and will be living a stressful life.
The applicant has not submitted any supporting documents to the Tribunal.
Applicant's evidence at the hearing
The applicant's evidence was that he is a Malaysian citizen and does not have citizenship of any other country. He declared he completed his visa application himself without help, and that the content is true and correct. The applicant advised that in Malaysia he has his parents and there are [specified family members]. He is unmarried with no dependents. He submitted he does not have any family in Australia. According to his evidence the applicant completed [school level] and then undertook a range of employment including [in three specified occupations]. He said immediately before travelling to Australia he had worked [in one of these occupations] for about one year.
The applicant confirmed he came to Australia holding an Electronic Travel Visa. He said he had first arrived for holiday and was intending to stay for a few weeks. However, he said his family is “unstable” and he wanted to help them. The applicant claimed he had asked for assistance in Australia and he was offered the opportunity to work. The Tribunal reminded the applicant that he did not hold a visa allowing him to work at the time and he replied “yes, I know”. The Tribunal asked about his family circumstances and he said they do not have jobs and they need money. He clarified that some of his family members work just like him but now there are few jobs because of COVID-19.
The Tribunal asked the applicant what he fears about returning to Malaysia and he said he does not have any money and he needs to help his father. The Tribunal explained that to meet the criteria for a Protection visa, any fears he had needed to be for reasons of race, religion, nationality, membership of a particular social group or because of his political opinion. The applicant said, “yes I know”. He did not claim to have any fears based on any of the five reasons outlined to him. When asked how long he planned to stay in Australia the applicant responded, “whatever the visa allows”. He did not indicate he is unable to return to Malaysia in future. The Tribunal asked the applicant why he did investigate or apply for a visa that would allow him to work and he said he did not know about it. Instead, the applicant declared his friend had told him to “give it [a protection visa application] a go”.
The Tribunal asked the applicant if he had any other fears about returning to Malaysia. He reiterated that he does not and that his concerns are about his family not having money, and him being responsible for them. The Tribunal asked if the applicant had looked for work in another part of the country. He said he had not, because there are not many jobs. He added that the educated in Malaysia get jobs, not uneducated people. The Tribunal asked the applicant why he did not apply for employment in [his previously mentioned] industries since he claimed to have experience [in a specified task]. The applicant submitted the work he had done in that field was casual and had only lasted a few weeks.
The Tribunal put to the applicant that the Malaysian government is investing in development and infrastructure in the country that would require employees such as him. He was asked if he had considered seeking employment in Kuala Lumpur for example. He said he had not and that he came to Australia to work. The applicant declared his father has a housing loan and he needs to help. The Tribunal asked the applicant why it was his responsibility and he said his father is unable to work. He was asked if his brothers also assisted their father financially and the applicant claimed they are married and need money for their own families.
The applicant was asked what he thought would happen if he returns to Malaysia. He stated that if he does not have money “they will come after me”. The Tribunal asked the applicant to explain what he meant by that and said he had borrowed money from a friend to pay for his father’s house, otherwise he [the father] will be evicted. The applicant did not provide any further explanation about this claim or elaborate on any concerns regarding returning to Malaysia.
The applicant said he had been in Australia for about four years and during that time, he has done “all kinds” of work. He referred to [farmwork]. He was asked why he could not do the same type of work in Malaysia and he said he needs money and the salary is not good there. The Tribunal asked the applicant if he or his parents has sought any type of government assistance in Malaysia and he said they did not because the process is long and there is no certainty it would be granted. He said his parents are over 70 and when asked if they receive any type of pension, he said they do not. According to his submission, the applicant’s parents are retired, and they have no income. The applicant was invited to make any further submissions to the Tribunal, but he had nothing further.
Credibility
While the applicant’s credibility is not determinative in this case, the Tribunal notes the applicant’s evidence was generalized and vague. He also provided some inconsistencies during the hearing stating first that his family members did not have jobs but then claiming his siblings who work have their own families to provide for. The applicant claimed it had been difficult for him personally to find work in Malaysia. Although he referred to it being generally “difficult” numerous times, the only reason the applicant gave was the economic situation in the country and COVID-19. This is despite the applicant leaving Malaysia well before the COVID-19 pandemic. The Tribunal finds that the applicant’s evidence suffered from a lack of detail and was general in nature, raising some doubts about the genuineness of the applicant’s claims overall. However, the Tribunal is prepared to accept his claims that the wages he would earn in Malaysia would be lower than in Australia and that he faced some financial difficulties as a result.
In accordance with s.423A of the Act, applicants are expected to present their case in full before the primary decision-maker, and not wait until after the primary decision has been made. The Tribunal is required 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 before the primary decision maker. 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. In this case, the applicant raised a new claim of a friend “coming after” him because he had borrowed money to help pay for his father’s house. The applicant did not raise this claim before the primary decision maker. At the time his claims were that he would be unable to find employment if he returns to Malaysia. The applicant did not pursue this claim any further or explain why he had not included it in his original application. The Tribunal is satisfied he does not have a reasonable explanation why the claim was not raised before the primary decision was made. Therefore, the Tribunal draws an inference that is unfavourable to the credibility of the applicant’s claim that he fears because he borrowed money from another person.
While the applicant appears to have been entrepreneurial in finding work in Australia, he claimed neither he nor his parents had made any effort to investigate any governmental assistance that could be provided in Malaysia to boost the finances of his household. The Tribunal finds this somewhat implausible.
Country Information
In accordance with Ministerial direction No 84 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT).
The Tribunal has referred to the DFAT report on Malaysia dated 13 December 2019 ('the DFAT Report') which states:
The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2018, its real GDP growth was 4.7 per cent, while per capita GDP was USD10,942 (AUD14,630). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 84 per cent of Malaysia’s exports in 2018. Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the government’s largest single revenue source. The drop in oil price in 2015 and 2016 negatively affected government revenues, but the rebound in oil prices in 2017 has seen revenues pick up again. The International Monetary Fund forecast economic growth of 4.5 per cent for 2019.
Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (USD 8.50 (AUD 12.26) per day in 2012) falling from over 50 per cent in the 1960s to less than 1 per cent today. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, which predominantly consists of Bumiputera. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. The UNDP’s Human Development Index ranked Malaysia 57 out of 189 countries in 2018, placing it in the ‘high human development’ category.[1]
[1] DFAT Country Information Report Malaysia 13 December 2019.
However, more recent information shows that the Malaysian economy is facing some challenges due to the current COVID-19 pandemic:
Malaysia’s economy may be turning a corner after a record decline in the second quarter, with experts seeing an opportunity to rest and rebuild in a way that could attract more foreign investment in the post-pandemic world.
In a country where the only certainty is political uncertainty, however, that might be easier said than done.
…
To control COVID-19, the country had imposed some of the strictest social distancing rules with its movement control order, resulting in hundreds of millions of dollars in lost daily output. But after a gradual reopening began in May, the economy is expected to pick up from the third quarter, backed by government stimulus. “I am cautiously optimistic that the worst is behind us”, central bank Gov. Nor Shamsiah Yunus told the media earlier this month.
…
To cushion the pain and support the recovery, the government has pledged a total of 295 billion ringgit ($70 billion) worth of stimulus measures, including a direct fiscal injection of 45 billion ringgit. A moratorium on bank loans is also helping households to free up some cash.
Prominent economists expect Malaysia to maintain its expansionary fiscal policy over the next year. But they warn that the government can only spend so much, and that two important growth engines—domestic consumption and property development—may have hit their limits.[2]
[2] Nikkei Asia, ‘Malaysian GDP plunge fuels talk of post-COVID economic remodelling’, 22 August 2020, Isabelle Francis, >
Regarding the applicant’s home state of Purlis:
The economy of Perlis depends largely on forestry, agriculture and fishing industries. It is one of the largest sugarcane producers in Malaysia. Again, Rubber is cultivated in large scale. Perlis’ main forms of fruit produce are watermelon and mango. The state is slowly moving towards development of both large scale and medium-scale industrial and manufacturing activities.[3]
[3] Perlis - Info Malaysia (IIM) Leading Industrial, Commercial, Tourism & Information in Malaysia.
In terms of governmental welfare benefits and social assistance to the poorest in Malaysia, the country information shows that the government has targeted groups to assist low income households. This was also done to ensure assistance was benefiting those who are really in need, particularly the Bottom 40 (B40) of the population. B40 refers to the bottom 40% of households with a monthly income of RM3,900 and below. The target group eligible for the government aids and subsidies are:
·        Children
·        Elderly
·        Disabled
·        Poor Families
·        Victims of disasters[4]
[4] >
Additional budget measures have been implemented to deal with the effects of the COVID-19 pandemic, particularly for the vulnerable[5]
On the welfare of the elderly and the disabled through the Home Help Services Programme, the honorarium value for volunteers under this programme will be increased from RM150 to a maximum of RM400.
Meanwhile, the assistance value to the vulnerable group of the programme will also be increased from RM30 to RM80, expected to benefit more than 2,000 volunteers and more than 8,000 senior citizens and the disabled.
Additional tax relief limit for disabled spouse will be increased from RM3,500 to RM5,000.
The Community Rehabilitation Organisation staff rate will be increased from RM800 to RM1,200 per month, while the rate of supervisors will be increased from RM1,200 to RM1,500 per month.
The annual financial aid to operate the Senior Citizens Activity Centre managed by NGOs will be increased from RM33,000 to RM50,000.
Further tax deduction on remuneration given to employers who employ senior citizens is extended until year of assessment 2025.[6]
[5] Budget 2021: Financial aids available for Malaysians (themalaysianreserve.com).
[6] Coronavirus: Malaysian states begin handing out aid to those affected by outbreak, SE Asia News & Top Stories - The Straits Times.
CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Refugee criteria
The Tribunal considered whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion relating to all areas of the relevant country. 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 experienced difficult financial circumstances due to a lack of education and full-time employment. The applicant as a poorly educated person, belonging to a low-income household in which the parents are not employed, may mean he is part a social group that experiences poverty in Malaysia.
When asked what he feared about returning to Malaysia, the applicant referred to financial worries and claimed he would be unable to support his family. When discussing his family, the applicant referred primarily to his father and declared that some of his siblings are working but have their own families. When asked why it fell to him to provide for his family, the applicant did not directly explain. He repeated his claims that his father has a house but does not work and has no income.
Similarly, it was put to the applicant that the Malaysian government provides welfare to the lowest economic group. He claimed his family had not investigated or applied because the process takes too long, and eligibility is not guaranteed. The Tribunal had concerns about the applicant’s vague answers to questions that were put to him and lack of satisfactory explanation for his adverse circumstances in Malaysia. The Tribunal considered the applicant’s submission that he needs to earn money to support his family and help his father pay for his house. The Tribunal finds the applicant has proven to be resourceful in securing employment in Australia and there appears to be no reason he could not find work in his developing home state or elsewhere in the country. In this regard he is single with no dependents, unlike his married siblings who appear able to work and support themselves and their families.
To meet the refugee criteria, the applicant must have a well-founded fear of persecution and the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to a threat to the person's life or liberty; significant physical harassment of the person; significant physical ill treatment of the person; significant economic hardship that threatens the person's capacity to subsist (ability to survive); denial of access to basic services, where the denial threatens the person's capacity to subsist (ability to survive) or denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist (ability to survive).
The applicant did not claim to fear persecution and there is no evidence he would be denied access to basic services or denied the capacity to earn a livelihood. The Tribunal did consider whether the applicant would face significant economic hardship that would threaten his capacity to subsist. In this regard the Tribunal notes the applicant is [age] years old and has lived independently in Australia since his arrival [in] September 2016, a period in excess of four and a half years. He has demonstrated that he has been able to able to seek assistance to find work and live in a foreign country without being a native speaker of the language or having any family support. In that time, the applicant has been employed in the agricultural sector and would have acquired skills that could be utilised in his home country. Given the applicant’s ability to find work in Australia, the Tribunal rejects any claims that he will be unable to find a job in Malaysia.
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 a real chance of harm due to his membership of the particular social group, being an uneducated person living in a low income household.
Complementary protection criteria
A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.
During the Tribunal hearing the applicant was asked to state if he had any fears about returning to Malaysia. The applicant referred in general terms to being worried about financial matters and not being able to support his family. The applicant denied having any other fears, other than having borrowed money from a friend who he claimed would “come after me”. As stated, the applicant did not raise this issue before the primary decision maker and the Tribunal does not accept it as credible. The applicant’s statement about financial worries followed an explanation for his circumstances in Malaysia which included not being able to find full-time work or earn enough money. The applicant gave an indication during the hearing that he understood what was required for the grant of a protection visa in Australia. At the same time, he claimed he had not known about applying for a more suitable visa that would allow him to work, admitting instead that a friend had suggested he “give it a go” applying for protection.
The Tribunal is not satisfied the applicant’s worries about financial matters amount to a real risk he will suffer significant harm if he is removed from Australia to Malaysia. According to his evidence, the applicant has experience in [three specified] sectors in his home country and has acquired agricultural work skills in Australia. This would be of benefit the applicant’s home state of Perlis which is based on the forestry, agriculture, and fishing industries. It may be that he will also have to broaden his employment search criteria in Malaysia and consider other regions of the country.
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 the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wendy Banfield
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 2924

23 June 2021

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