1921395 (Refugee)

1921395 (Refugee) [2024] AATA 4350 (15 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1921395
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Alexander Reilly
DATE:15 August 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from money lender – mother’s and applicant’s financial stress and loans – threatened and house damaged – work in other areas and another country – one approach to police, with no action taken – application completed by another person without applicant’s knowledge of contents – limited and inconsistent claims and no documentation – country information – effective protection measures and possibility of relocating – sponsored work visa application in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (c), (2), 5B(b), 5LA(2), 36(2)(a), (aa), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AZAEH v MIBP [2015] FCA 414
MIAC v SZQRB [2013] FCAFC 33

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 2 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Malaysia applied for the visa on 5 January 2019. The delegate refused to grant the visa on the basis that although illegal money lending is a problem in Malaysia, Malaysia has a functioning police force and judicial system, which could provide the applicant with effective protection. The delegate also found that, being Chinese Malay, the applicant was unlikely to face discrimination in everyday life.
The applicant appeared before the Tribunal on 14 August 2024 to give evidence and present arguments. The applicant was accompanied to the hearing by his employer. The Tribunal asked the employer whether he intended to give evidence. The employer stated that he was there to support the applicant, and that he was separately making an application for a sponsored work visa for the applicant. The employer stated he did not intend to give evidence as a witness and left the hearing room.
The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
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) (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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. he has at all times stated that he is a citizen of Malaysia and he has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality and the receiving country.
The applicant’s background
At the time the applicant travelled to Australian [in] October 2018, he had a relationship with two members of his family; his mother and his older brother. His mother and father were divorced at this time, and he has very limited contact with his father. He also has an older sister], but he was not aware of her whereabouts at the time of the hearing.
The applicant has regular contact with his mother, sometimes monthly, and sometimes more often when there are important things to discuss. In Australia he has no close contacts, other than his employer on a [workplace] north of Adelaide.
The applicant travelled to Australia on a Visitor visa. He has been engaged in [workplace]work since his arrival. He has not left Australia since he arrived in October 2018. This is confirmed by Department of Immigration movement records.
The applicant’s claims for protection
Friends helped the applicant apply for a Protection visa. The friends asked him about his conditions in Malaysia. The applicant told his friends about the debt to the loan sharks. His friends referred him to a person who took his email address and filled out the Protection visa application. The applicant paid $300 for this service. The applicant does not know what the person wrote in his application.
On 2 August 2024, prior to the hearing, the Tribunal received an email from the applicant with an updated statement of claims. The applicant explained that he told the employer what he wanted to say. The employer wrote down the claims in English, and the applicant then used Google translate to convert the text back into Chinese to confirm that it was an accurate representation of what he said. In the statement, the applicant made the following claims:
When I was in Malaysia, the fear and pressure I endured came from the intimidation and threats from illegal loan sharks. I was born in a poor family. After my parents divorced, my mother and I became homeless. We rented the cheapest house and moved every day. It was really hard. Studying became a problem. Because I didn't complete my studies, I went out to work to supplement my family income. In my 20s, I became worse and worse because I met some bad friends. Just then, an accident happened and my mother had to give up her job and take care of me at home. Our family's finances fell into trouble. At that time, we borrowed money from several illegal loan sharks. The interest was very high and I was unable to repay it. The illegal loan sharks began to use threats and intimidation to make it impossible for me to stay in Malaysia and continue to live, so I escaped and came to Australia
The applicant confirmed that these were his claims for protection. The Tribunal notes that these claims are broadly consistent with the applicant’s original claims. Given that the applicant does not know what was written in the original application, the Tribunal accepts the pre-hearing statement as the basis of the applicant’s claims for protection.
At the hearing, the applicant expanded on his claims in answer to questions from the Tribunal. The applicant stated that he was from a poor family. He had low paid work and he and his mother had to move accommodation regularly because they could not afford the rent. When he was a teenager, his mother borrowed money from illegal money lenders and he took out a loan to help his mother.
The applicant said he borrowed RM10,000 (10,000 Malaysian Ringgit) in May 2015. The interest on this debt quickly built up and he was not able to repay the debt. He was initially told that the interest rate was 20% but he calculated that he was actually charged 65%. He tried to tell the money lenders that the interest calculation was wrong, but they refused to accept it. There was no written loan agreement.
From 2016 until he travelled to Australia in October 2018, he paid back many thousands of ringgits, but the debt kept growing. To repay the debt, he worked in [Country] for some time and then in Malaysia outside of his home province. He stayed in hiding and a friend supported him with some money. The friend suggested that he go abroad and work to pay back the debt.
When the applicant was unable to repay the debt, the money lenders threatened to hit him and to break his arms and legs. They first made a threat in January 2016, about 7 months after he had taken out the loan. When he left his home province, the money lenders also threatened his mother who was still living in their hometown. The money lenders would go to house and break the windows and break the door. The applicant’s mother asked why they were doing this. They said because her son borrowed money and didn’t pay it back. The applicant stated that the money lenders would visit his mother almost every day.
The Tribunal asked whether the applicant was safe while he was living outside his home province. He replied ‘Not really. They kept threatening my mother. And my mother would get in contact [with me].’
The Tribunal asked the applicant whether he reported the money lenders to the police. He replied that he made a report in 2015, just before the new year. The police came to the house and said that because the loan sharks did not harm his mother that they could not press charges.
The Tribunal asked whether the applicant went to the police again, when the loan sharks kept threatening the applicant’s mother every day. He said that he did not make another report to the police.
The applicant continues to send his mother money for her expenses, and she continues to make regular payments to the money lenders from this money.
The Tribunal asked whether he could now pay off the loan. The applicant said that the RM10,000 loan was now RM200,000. He does not know how much he has paid off. However, he sends his mother RM1000 every month.
The applicant is concerned that he will be harmed by the money lenders if he returns to Malaysia. The money lenders said to his mother, ‘don’t you let us ever see your son’.
The Tribunal asked whether the applicant could go to the police and explain that he borrowed RM10,000, that he has made many payments, and he now owes RM200,000. The applicant did not think that the police would do anything. A friend told him that in some areas the illegal money lenders bribe the police. The applicant said that the police might investigate, and then put the case aside without taking any action.
The Tribunal asked what would happen if the applicant’s mother simply stopped paying the money lenders. He said that they would come to his mother’s house and disturb her. He did not think they would physically hurt his mother because she was old.
The applicant said the last time his mother went to the police was in 2018. The Tribunal asked why the applicant or his mother had not approached the police since that time. The applicant responded that his mother did not go to the police again because the loan sharks did not physically harm her.
The Tribunal suggested the problem was not only physically harm, but the illegal loan the money lenders were requiring him to pay back. The applicant said that he hoped to pay the loan back in Australia, but they would not accept the amount he negotiated.
The Tribunal asked why the applicant’s mother could not leave her hometown and move to another state. The applicant said that his mother is not very educated and she did not want to leave her home town and start life in a new place. He tried to encourage her, but she was not familiar with the route and the roads.
The Tribunal asked what was the serious harm that the applicant would face if he returned to Malaysia. He said he did not know what they would do, but they did threaten to break his arms and legs.
The Tribunal suggested to the applicant that he would be safe if he lived in Kuala Lumpur or another state. The applicant responded that the money lenders work in the same group’. This was information from his relatives and friends.
The Tribunal asked whether the loan sharks had approached him when he returned to Malaysia from [Country] and lived in a different state. The applicant replied that they tried to hunt him down during that time. They did it through their friends. They found him one time while he was renting a house in Johor. The applicant said that they came to his house, and they said they knew his location through friends. They asked him to pay them back, and he said he didn’t have the money at that time, but he gave them RM500.
The Tribunal asked if they found him on other occasions. The applicant said they found him twice more in Johor, in different houses. Each time there were 2 of them. In total the applicant lived in Johor for 11 months.
The applicant did not live anywhere else for an extended period of time. He went to Kuala Lumpur occasionally, and back to his hometown to get help from his friend to leave Malaysia.
The Tribunal asked whether the applicant had anything else he wanted to add. He said that he hoped the Tribunal could help him as his mother is getting old.
Assessment of the applicant’s evidence
The applicant submitted no documentary evidence to substantiate his claims. He relies on his one paragraph statement emailed to the Tribunal on 2 August 2024, and his oral testimony to the Tribunal.
The new statement is broadly consistent with original statement. Given that the applicant did not know what was in the original application, the Tribunal puts no weight on the claims made in the original application.
The Tribunal accepts that the applicant lived with his mother and that they were under financial stress.
The Tribunal accepts that the applicant borrowed RM10,000 from an illegal money lender, that the interest rate was higher than he expected and that he got into trouble paying back the loan.
The Tribunal accepts that the money lenders put pressure on the applicant to pay back the loan, that the applicant travelled to [Country] and to other places in Malaysia to earn money to pay back the loan.
The Tribunal accepts that the applicant provided money to his mother who continued to pay a small amount to the money lenders so that they would not damage her house.
The Tribunal accepts that the money lenders threatened to harm the applicant, and that they damaged the house of the applicant’s mother on at least one occasion.
The Tribunal accepts that the applicant travelled to Australia in order to earn a better income, so that he could pay off the loan to the money lenders.
The Tribunal accepts that the applicant went to the police once in 2015 and that the police did not press charges against the money lenders at that time.
The Tribunal does not accept that the money lenders found the applicant on three occasions in houses he was renting in Johor. Early in his evidence, in answer to the question whether he was safe while living away from his hometown, the applicant stated, ‘not really. They kept threatening my mother. And my mother would get in contact [with me]’. Only when the Tribunal put to the applicant that he would be safe if he lived in Kuala Lumpur or another state did the applicant suggest that the money lenders had found him in his rental houses in Johor and demanded money from him. The possibility of money lenders pursuing small payments on an initial debt of RM10,000 across provincial borders seems unlikely. It is even more unlikely that the money lenders would be able to locate the applicant across different houses in a city outside his home province. In light of this general implausibility and the inconsistency in the applicant’s evidence on this point, the Tribunal concludes that the money lenders did not find the applicant in Johor.
The Tribunal accepts that the applicant’s mother went to the police in 2018 and has not approached the police since that time.
The Tribunal accepts that the applicant is still providing money to his mother to pay the money lenders, and that the money lenders are still in contact with his mother and threaten to harm the applicant if he returns to Malaysia.
The Tribunal accepts that the applicant has attempted to negotiate with the money lenders from Australia and that he has been told that the debt is now RM200,000.
TRIBUNAL’S CONCLUSION ON THE APPLICANT’S ELIGIBILITY FOR A PROTECTION VISA
Refugee Protection
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).
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.
Although the Tribunal has doubts whether the applicant faces the harm for a refugee reason, it is prepared to accept that people who borrow money from illegal money lenders in Malaysia may constitute a particular social group.
Furthermore, the Tribunal finds that there is a real chance that the applicant will suffer serious harm if he returns to Malaysia as a result of not being able to pay back the money he owes. Under s 5J(5)(b), ‘significant physical harassment of [a] person’ constitutes serious harm. According to the applicant, the money lenders are constantly harassing his mother, damaging her house, and threatening to cause physical harm to the applicant. If the applicant were to return to his home, the Tribunal finds that there is a real chance that the applicant will be physically harmed.
Effective protection measures
Under s 5J(2), a person does not have a well-founded fear of persecution if ‘effective protection measures are available to the person in the receiving country’. Under s 5LA(2), a relevant State is taken to be able to offer protection again 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.
Th Tribunal finds that the applicant can access police protection. The applicant went to the police about the illegal money lenders in 2015, six months after he had taken out the loan, and soon after he was unable to pay back the loan. According to his evidence, the police came to the house and said that because the loan sharks did not harm his mother, they could not press charges. The applicant did not go to the police again.
The Tribunal put to the applicant that he could go to the police now, 9 years after he took out the loan, with the money lenders demanding he pay back RM200,000 on a RM10,000 loan. The applicant agreed that he could go to the police, though he considered they would not do anything.
Country information states that usury is illegal in Malaysia. The DFAT Country Information Report Malaysia 2024 states that:
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.
The Tribunal notes that the terms of the applicant’s loan fall outside of the requirements of the Moneylenders Act (1951) and could be the basis for an action against the money lenders in his case.

The Tribunal finds that police protection would be durable. The applicant did not think that the police would do anything. A friend told him that in some areas the illegal money lenders bribe the police. The applicant said that the police might investigate, and then put the case aside without taking any action.
The Tribunal does not accept that the police would not offer the applicant durable protection in the applicant’s situation. In relation to complaints about debts from illegal money lenders, the DFAT report states:[1]
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.
DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame.
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia 24 June 2024, [3.153]-[3.154].
The Global Organised Crime Index 2021, notes that:[2]
Malaysia ranks in the top 25% globally (46 out of 193 countries) for the high level of organised crime according to the Global Organized Crime Index 2021. Significantly, the Index also classifies Malaysia highly in terms effective counter measures: it is one of nine (out of 193) “countries with high levels of criminality, but that have also developed robust frameworks and mechanisms to counter organized crime… i.e., simultaneously high criminality and high resilience”.
In general, law enforcement is well equipped, but its reputation has been tarnished by high levels of perceived corruption and low levels of public trust.
[2] The Global Organized Crime Index 2021 - Malaysia, >
While acknowledging that police protection can be ineffective for victims of illegal money lenders, the Tribunal concludes that if the applicant or his mother were to approach the police in their situation, in which a small loan of RM10,000 has blown out to RM200,000, and in which the applicant has repaid the original debt many times over, and in which the money lenders continue to harass the applicant’s mother for repayment, the police would offer effective protection to the applicant. The last time the applicant or his mother approached the police was 2018. A further 6 years has passed, and if they were to approach the police now, the Tribunal expects that the police would be sympathetic to the plight of the applicant and would be able to resolve the outstanding issue of the applicant’s loan to the illegal money lenders.
The Tribunal finds that Malaysia has ‘an appropriate criminal law, a reasonably effective police force and an impartial judicial system’. The DFAT Country Information Report Malaysia 2024 states that:[3]
The RMP is based on the British constabulary model, employs approximately 115,000 officers, and operates over 800 police stations across Malaysia. Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption.
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia 24 June 2024, [5.5].
Malaysia has an established system of courts. The DFAT Country Information Report Malaysia 2024 states that:[4]
The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level, and subordinate courts. Syariah courts operate at state level with jurisdiction over Muslims in personal matters. The subordinate civil courts hear the majority of Malaysia’s criminal, civil and family law matters for non-Muslims. A Judicial Appointments Commission makes judicial appointments, subject to the Prime Minister’s final approval. Seven of 11 members of the Federal Court are Malay Muslims, which is roughly equivalent to their proportion of the population.
Although there are reported incidents of arbitrary verdicts, selective prosecution, and preferential treatment of some litigants and lawyers,[5] the Tribunal is satisfied that the judicial system is impartial and can offer relief to the applicant if required.
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia 24 June 2024, [5.12].
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia 24 June 2024, [5.13].
The Tribunal concludes that effective protection measures are available to the applicant in Malaysia.
Relocating to another area of the country
Under s 5J(1)(c), a person only has a well-founded fear of persecution if ‘the real chance of persecution relates to all areas of a receiving country’. The Tribunal accepts that the applicant would live with his mother if he returned to Malaysia. As such, he would still be in the vicinity of the illegal money lenders who are pursuing him for repayment of the loan. Section 5J(1)(c) requires the Tribunal to turn its mind to whether the applicant could relocate to another area to avoid persecution.
In the case of the applicant, the Tribunal finds that he could relocate to a region outside his home province of Perak to avoid any chance of serious harm from the money lenders. He lived outside Perak for a number of years before travelling to Australia. As discussed above, the Tribunal does not accept as credible the applicant’s evidence that the money lenders found him and threatened him outside of his home province. The loan was a small one. There is no evidence that the money lenders have taken any bank cards or identity documents to secure the loan. The Tribunal notes that the applicant still has his passport and was able to leave the country. For such a small loan from a person with no assets to repay it, the Tribunal considers it to be highly unlikely that money lenders would make the effort to find the applicant outside his hometown even if the money lenders had the resources and capacity to do so, which the Tribunal doubts. This finding is consistent with the applicant’s evidence at the beginning of the hearing that although he was safe away from his hometown, the loan sharks were able to harass his mother.
The Tribunal also notes that when the Tribunal put to the applicant that his mother could also leave her hometown to avoid the illegal money lenders, the applicant responded that his mother is not very educated and she did not want to leave her home town and start life in a new place. He tried to encourage her, but she was not familiar with the route and the roads. This suggests that leaving was an option for his mother, albeit not the preferred option.
The Tribunal concludes that the real chance of persecution does not relate to all areas of the receiving country.
As a result of the real chance of persecution not relating to all areas of the country, and effective protection measures being available to the applicant, 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
If the applicant is found not to meet the refugee criteria in s 36(2)(a), he may nevertheless meet the criteria for the grant of the visa if he 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 will suffer significant harm: s 36(2)(aa). 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.
The ‘real risk’ element of the test in s 36(2)(aa) is the same as the ‘real chance’ test for protection under s 36(2)(a).[6] Just as the Tribunal concluded there is a real chance that the applicant will face serious harm from the illegal money lenders if he returns to his hometown, so the Tribunal concludes that the there is a real risk that the applicant will suffer significant harm under s 36(2)(aa).
[6] MIAC v SZQRB [2013] FCAFC 33
Under s 36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in a country if the Minister is satisfied that ‘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’. As discussed above, the Tribunal concludes that the applicant can seek protection from the police if he or his mother are confronted by the money lenders. Therefore, there is no real risk that the applicant will suffer harm if he returns to Malaysia as a result of the protection he can seek from the police.
Under s 36(2B)(a), there is taken not to a real risk that the applicant will suffer significant harm in a country if the Minister is satisfied that ‘it would be reasonable for [the applicant] to relocate to an area of the country where there would not be a real risk that the [applicant] will suffer significant harm’.
As discussed above, the Tribunal concludes that the applicant would be safe if he relocated to another state in Malaysia. For s 36(2B)(a) there is an extra element that relocating must be reasonable. The test of reasonableness is specific to the applicant.[7] The applicant is 33 years of age. He has extensive experience as a [workplace] worker in Australia. He was able to locate to Australia and find work. He lived outside his home province for several years prior to travelling to Australia. It is reasonable to expect the applicant to relocate away from his hometown to avoid harassment by the money lenders there.
[7] AZAEH v MIBP [2015] FCA 414.
For the applicant there is the added complication of his relationship of care for his mother. The applicant may want his mother to join him if he relocated. However, the Tribunal does not consider the reasonableness of the applicant’s mother relocating to be a relevant factor in determining the reasonableness of the applicant relocating. The applicant has lived apart from his mother, assisting her financially from afar, for 6 years. In any case, the Tribunal concludes that the mother is capable of relocating if that was her preference. The applicant said that his mother is not very educated, and she did not want to leave her hometown and start life in a new place. He tried to encourage her, but she was not familiar with the route and the roads. The Tribunal considers that with the assistance of the applicant, the applicant’s mother would be capable of moving to another state in Malaysia.
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.
Alexander Reilly
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 4350

15 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice