1926078 (Refugee)

1926078 (Refugee) [2024] AATA 3510 (25 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1926078

COUNTRY OF REFERENCE: Malaysia
MEMBER:James Lambie
DATE:25 July 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 25 July 2024 at 3:16pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – ethnic Chinese – kidnapping – period of unlawful residence – delay in apply for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA [1998] FCA 305
Zhang v RRT and Anor [1997] FCA 423
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 16 September 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Malaysia, applied for the visas on 7 August 2019. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia had protection obligations.
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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants, or either of them, meet the refugee criterion and, if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The first applicant claims to be [age] years old and a national of Malaysia.
The second applicant claims to be [age] years old and a national of Malaysia.
The applicants entered Australia [in] December 2017 as the holders of UD-601 Electronic Travel Authorities (ETAs). The ETAs ceased [in] March 2018 and they subsequently became unlawful non-citizens.
On 7 August 2019, the applicant lodged an application for a Class XA, Subclass 866 (Protection) visa. They were subsequently granted Class WC, Subclass 030 (Bridging C) visas in association with the lodgement of their protection visa application.
On 16 September 2019, the applicants were notified that the Department of Home Affairs had refused to grant their application for protection visas in a decision made on the same date.
On 17 September 2019, the applicant applied for merits review of the Department’s decision.
Claims:
The applicants’ claims are summarised in the delegate’s decision and the applicant’s protection visa application.
The applicants claim that they are ethnically Chinese and have experienced serious racial discrimination from Malays. They claim that Malaysia has a serious racial discrimination problem and that Malays like to harm Chinese and rob, kidnap and rape them. They claim that they were kidnapped and imprisoned for three weeks, and that their family was threatened and forced to pay for their release. They claim that, after escaping imprisonment, they sought help from the police which was refused because they were not Malay or Muslim. They claim that the authorities will not protect them because Malays and Muslims like to harm non-Muslims such as Chinese or Indian people. They claim that, if they return to Malaysia, they will be treated unfairly and will face racial discrimination
Evidence:
The material before the Tribunal includes, relevantly:
·The applicants’ protection visa application;
·The applicant’s identity documents being copies of their Malaysian passports provided to the Department;
·The protection visa decision record dated 16 September 2019 (the delegate’s decision record);
·The application for review form;
·Department file [number] concerning his protection visa application; and
·Country information on Malaysia, referred to below.
Country of reference / receiving country:
The applicants claim to be citizens of Malaysia. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country; therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
On 1 July 2024, the Tribunal wrote to the applicants advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing to be held on 25 July 2024. The letter advised that if they did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable them to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence was returned undeliverable. On 3 July 2024, the Tribunal sent a letter by express post to the physical address provided in the application for review. That correspondence had not been returned from the applicants and the Tribunal received no response.
On 18 July 2024 and 24 July 2024, the Tribunal sent hearing reminders to the applicants by SMS to the telephone number provided in the application for review. No response was received to these reminders. At 9.55am on 25 July 2024, an officer of the Tribunal attempted to contact the applicants by telephone to ascertain whether they intended to attend the hearing but the call was not answered. There was no response to the voicemail message left by the officer.
The applicants did not appear before the Tribunal on the day and at the time and place she was scheduled to appear. The applicant failed to provide any reasonable explanation as to why he could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
Accordingly, this matter has been determined on the evidence available to the Tribunal,
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal also notes the decision of the Federal Court in BZADA v MIC andRRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of
satisfaction to grant the applicant a visa given his failure to attend the hearing and
the Tribunal’s inability to test and examine his claims in evidence. The relevant
statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach
a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the
criteria for the grant of a protection visa depends not on a particular matter being
established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has carefully considered the applicants’ claims as detailed in their application for a protection visa, both individually and cumulatively. The applicants did not take the opportunity to attend the hearing and did not provide additional information in support of their claims, even after having been advised of the delegate’s decision. The applicants did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
The applicants’ written claims were brief and general and relate to the applicant having borrowed been subjected to racial discrimination and having been kidnapped and detained for a period of three weeks.
Had the applicant attended the hearing, the Tribunal would have asked them for further detail about their claims, which would have afforded them an opportunity to address their lack of specificity and to respond to the decision of the delegate. They would also have been able to provide further information and evidence.
On the material presented, the Tribunal has insufficient evidence as to:
·the times, frequency, and nature of the acts of racial discrimination to which they claim to have been subjected;
·the date of their kidnapping, a description of the event and the circumstances and conditions in which they detained;
·their means of knowledge that the kidnapping was racially motivated;
·the amount of ransom that was demanded, the means of payment and details of their release; and
·details of their attempts to complain to the police and the reasons why such a serious offence was not investigated.
The Tribunal has also noted that the applicants, despite having arrived in Australia [in] December 2017, did not apply for the protection visa until 17 August 2019, some 20 months later and having been unlawful for some 17 months.
A delay in seeking protection can support an adverse credibility finding as well as finding that the applicants fear is not well-founded[1]. In Subramaniam v MIMA[2], the court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. While a delay in making protection visa application by itself is not conclusive, it reasonably remains an indication in the applicant’s case that claimed fear of harm in this regard is not genuine. Had the applicants appeared at the hearing, the Tribunal would have asked them the reason for the lengthy delay.
[1] See Zhang v RRT and Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
[2] [1998] FCA 305.
The Tribunal has had regard to the following country information concerning underground banks and illegal money lenders in Malaysia relevant to the applicant’s claims:
3.11    According to the Department of Statistics Malaysia, Chinese Malaysians comprise approximately 22.8 per cent of the population in Malaysia. The Chinese Malaysian population is not growing as fast as the Bumiputera. Nevertheless, Chinese Malaysians remain one of the largest overseas Chinese communities in the world and are Malaysia’s second-largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. The ‘MyKad’ (national identity card) of Chinese Malaysians does not specify their religion, as do cards of (Muslim) ethnic Malays.
3.12    There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians. Chinese Malaysians freely participate in political life, including as ministers (there are five Chinese Malaysians serving in Anwar’s cabinet as of publication) and in opposition parties. Ethnic Chinese politicians have occasionally faced public criticism for interfering with ‘Malay rights’. In the 2022 General Election, the Democratic Action Party (DAP) – a predominantly ethnic Chinese party – won 40 of the 220 federal parliamentary lower house seats, seeing its share of the vote fall slightly. The Malaysian Chinese Association (MCA) was historically part of the BN coalition, but has lost favour with Chinese voters due to its association with the Bumiputera policies of that coalition.
3.13    There are relatively few Chinese Malaysians in the civil service. According to local media reporting in 2023, a government official said ‘only …4.46 per cent or 70,000 [of Malaysia’s civil servants] were ethnic Chinese.’ While the use of the Malay language (in addition to English) can be a barrier to employment in the civil service, it does not preclude it. In-country sources reported that Chinese Malaysians often do not apply for government positions as they believe the positions are more likely to be awarded to Bumiputera and provide limited promotion opportunities. The Malaysian Public Sector Commission says there is no racial discrimination in civil service recruitment. Chinese Malaysians reported discrimination against the community in the business sector and government-owned enterprises and unequal access to certain industries due to Bumiputera ownership laws. Other ethnicities say they are discriminated against in the Chinese-dominated corporate sector, and that many jobs require Mandarin language skills, which effectively excludes non-Chinese, even though the language of commerce is chiefly English.
3.14    Chinese Malaysians are eligible to access national primary and high school education, although they generally choose to attend one of the nearly 1,300 national-type Mandarin-language primary schools. The Chinese School Leaving Examinations are not recognised for entry into Malaysian public universities, despite their recognition by some other countries. In July 2022, the previous government said it had no plans to change this policy, because the exams were ‘not consistent with’ National Education Policy. In-country sources reported Chinese Malaysians held a strong perception that Malay students with lower marks are consistently awarded places in their preferred university courses, ahead of members of other racial groups with better marks.
3.15    DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector.[3]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia (24 June 2024), pp 14 - 15
Because the applicants did not appear and provide evidence as to the nature and extent of the racial discrimination to which they claim to have been subjected, the precise circumstances of their claimed kidnapping, and why adequate state protection would not be afforded them, the Tribunal is unable to be satisfied that there is a real chance that on return to Malaysia, either now, or in the reasonably foreseeable future, that the applicants would suffer serious or significant harm.
Cumulative claims
Having considered all of the applicants’ claims, individually and cumulatively, and all of the evidence, as well as having considered the personal circumstances of the applicants, the Tribunal finds that there is no real chance that the applicants will suffer persecution by reason of Malay antipathy to ethnic Chinese if they return to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if they return to Malaysia. Accordingly, the Tribunal finds that they do not satisfy the criterion in s.36(2)(a) of the Act
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that they will suffer significant harm?

The Tribunal has considered the applicants’ claims in terms of complementary protection.
Having regard to the findings of fact above, the Tribunal cannot accept that they left Malaysia because they feared for their physical safety or that they cannot return to Malaysia out of fear for their physical safety.
In view of these findings, the Tribunal is not satisfied that there is a real risk that the applicants will suffer significant harm for any of the reasons claimed if they return to Malaysia now or in the reasonably foreseeable future. Having considered all of the applicants’ claims, individually and cumulatively, and all of the evidence, as well as having considered their personal circumstances, the Tribunal is not satisfied that the applicants will be arbitrarily deprived of their life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment, or they will be subjected to degrading treatment or punishment if they return to Malaysia now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the circumstances above, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicants will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group). Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s. 5H.
Conclusion: Complementary Protection
Considering the applicants’ individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia that there is a real risk that they will suffer significant harm.
Overall conclusion
For the reasons above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit of a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Lambie
Senior 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 3510

25 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Standing

Statutory Construction