1926510 (Refugee) - [2024] ARTA 794

1926510 (REFUGEE) [2024] ARTA 794 (10 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1926510
Tribunal:General Member A Goldsworthy
Date:10 December 2024

Place:Perth
Decision:The Tribunal affirms the decision under review.

General Member A. Goldsworthy

Statement made on 10 December 2024 at 9:16 AM
CATCHWORDS
REFUGEE – protection visa – fear of harm from creditors – imported products from third country without paying in full – applicant and mother threatened, and mother paid some money – application completed by another person, and some information conceded to be incorrect – inconsistent and contradictory claims and evidence – period as unlawful non-citizen – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 February 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old man who claims to be a national of Malaysia. He arrived in Australia [in] November 2015 on a UD-601 Electronic Travel Authority (ETA) visa which ceased on 28 February 2016. He remained onshore, unlawful, until he applied for a Protection Visa on 14 August 2016.
After the delegate refused to grant the visa, the applicant lodged an application for review on 20 September 2019. While this was outside of the legislated timeframe, the notification of the timeframe was found to have been invalid as it had not been clearly stated. As such, the prescribed period for seeking review had not commenced and the review application was valid.
The applicant appeared in-person before the Tribunal on 19 November 2024 to give evidence. The applicant was not represented. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The interpreter and the applicant confirmed that they understood each other and that there were no concerns.
CRITERIA FOR 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
In his original Protection Visa application, the applicant claimed that he left Malaysia due to being pursued by several people from [Country]. He wrote that a year prior to his arrival in Australia, he started a business selling [products]. At the beginning he claimed that everything went smoothly but after a few months some fraud occurred whereby after making one of his usual advance payments ahead of receiving [products] from [Country], the money was taken by one of the factory supervisors. The applicant wrote that he was unaware that the money had not reached its intended recipients because he received the [products] as usual. After a few months he said he received a call from the factory in which he was told that he had a lot of debt and needed to pay it before any action was taken against him. No supporting documents were provided.
The applicant provided the Department with a copy of his passport bio-page. The applicant was not interviewed by the Department.
The delegate refused to grant the visa on the basis that:
a.There was not a real chance of persecution for one or more of the reasons mentioned in s5J(1)(a) of the Act; and
b.There was not a real risk that the applicant would suffer significant harm as outlined in s36(2B)(b) because the applicant could obtain, from an authority of the country, adequate protection.
The Tribunal Hearing
The applicant did not make any pre-hearing or post-hearing submissions, nor did he submit any documentary evidence during the hearing.
Where relevant, the applicant’s oral evidence from the hearing is included below.
The applicant said he was claiming protection because he had problems in Malaysia and wanted to live in Australia to start a new life. The applicant said that at the age of 17 he started a business selling [products] and accrued three debts amounting to more than AUD150,000, that he was unable to repay.
He said he had travelled to [Country] four times in 2017 and 2018, each for a period of two or three days for his [product] business. He had travelled there with a friend from his village and had crossed the border using a border pass rather than a passport. Later in the hearing the applicant revised his dates of travel to being in 2013 or 2014.
He said he owed about RM300,000 (Malaysian Ringgit) to the boss of a company in [Country] who had supplied him with [products]. He had been unable to repay the man because he had used all the money to enjoy himself. The applicant had escaped to Australia when he had heard that the man wanted to kill him. That man had passed away in 2020 but someone had taken over from him and was still looking for the applicant to kill him. When I asked how the applicant knew that the person to whom he owed money had passed away, he said that his friend, [Mr A], who he had travelled to [Country] with, had told him.
The applicant clarified that he owed three people different amounts, all for his [product] business. Aside from the person to whom he owed RM300,000 – whom he borrowed from first - he also owed about RM100,000 and RM50,000. He said that all three creditors were from [Country]. He had no evidence of any of this.
The applicant said that he had borrowed the RM300,000 from a creditor in 2017. He initially only took half of the RM300,000. His creditor trusted him and he took the other half at the end of 2017. He said that the money was to buy [products] from the same man’s company. He sold the [products] in his own village and surrounding villages. The applicant took some time to recall the creditor’s name, ‘[Mr B]’ and was unable to provide a full name. Later in the hearing the applicant said that he did not borrow any money in 2017 as he was already in Australia, and denied having said this.
I asked whether the applicant had repaid any of the money he owed to [Mr B]. He said he had not because he used the money to enjoy himself. He purchased a new [car] for about RM50,000 and a new motorcycle for about RM7,000. He first claimed the motorcycle was a [Make 1] but then changed this to be a [Make 2]. He also took his friends to Kuala Lumpur for a two-week holiday. They stayed in a nice mid-tier hotel in the [Area] near Kuala Lumpur, paid for in cash. He could not recall the name of the hotel. I put to him that such a unique trip would have been memorable enough to remember the name of his hotel, but the applicant said that he could not recall it. I asked what he had done on this trip and he said he had bought “Gucci stuff, bags and t-shirts”.
The applicant said that [Mr B] gave him up to 30 [products] at a time which he then sold for cash. The applicant claimed that he never received any cash from [Mr B], just [products]. I reminded him that he had earlier said that he had taken half of the RM300,000 from the man when he first borrowed from him, and then later the other half. The applicant denied that he’d said this.
I asked the applicant how he had come to know the man to whom he owed RM300,000. He said that his friend [Mr A] had introduced him. He did not recall [Mr A]’s full name.
[Mr A] had told the applicant that he needed about RM40,000 to start his business. The applicant said he borrowed RM50,000 from his grandparents as a result. RM40,000 was to start the business and he needed RM10,000 to travel to [Country]. The applicant said that his grandparents had a lot of money as they had four rental houses in the same village. His grandparents had both since passed away and their four children split up their assets. His mother received one of the rental houses. He confirmed that he never repaid his grandparents and that his mother was okay with this, though his siblings were not. The applicant claimed his siblings do not like him and he is not in touch with them.
I sought to clarify the applicant’s claim that he had first borrowed money for his business from the boss who had also provided him with the [products]. He said that he had spoken incorrectly. He had actually borrowed the money from his grandmother in 2013.
I asked the applicant who his contacts were at the company from which he received the [products]. He said his contact was [Mr C] but did not know [Mr C]’s full name. He said that [Mr C] was the only person he knew, and that he was the broker for the boss. He had met [Mr C] through the friend who had taught him how to sell [products]. I asked him to remind me of the name of that friend. The applicant took some time but was unable to recall it. I reminded him that he had said this person’s name was [Mr A]. The applicant agreed.
I asked when and where he had first met [Mr C]. He said it was in 2014 at a restaurant in [Location], Kota Bharu – the applicant’s hometown. He said he had only met [Mr C] a total of four times, all in 2014. [Mr C] had the first delivery of [products] with him the first time they met. The other three times [Mr C] had come without the [products] and sent them about a week later. I asked what [kind] of [products] he purchased. The applicant said that they were village [products]. When I asked again about their [kind] he took some time before answering “[Kind]”. He wasn’t sure where in [Country] they came from but it was “near a palm oil plantation”.
The applicant said that he first paid [Mr C] RM50,000 in cash in return for 20 [products]. He said the payment covered 14 of those [products]. I asked why [Mr C] gave him 20 if he could only pay for 14. The applicant said it was because he had requested 20. I asked whether it was odd that someone he had just met would agree to give him six extra [products]. The applicant said that his friend had vouched for his ability to pay, even though he had then squandered the money. Later in the hearing I asked the applicant to confirm how much he had paid for the first delivery of [products]. He told me he had paid RM30,000.
The applicant said that he received 35 [products] in the second delivery, for which he paid [Mr C] RM30,000. This payment covered only 15 of the [products]. In the third delivery he received 40 [products], for which he paid RM55,000. He said that this money covered 20 of the [products]. The applicant said that he did not receive any more deliveries as the boss whom he owed money to was demanding that he pay his debts first.
The applicant said he paid around RM6,000 for each [product]. I asked whether every [product] cost the same. He said that they were different according to size, with the smallest costing RM5,000 and the largest costing RM5,500.
I put to the applicant that 14 [products] – the number he’d said he’d fully paid for in his first delivery – would cost a minimum of RM70,000. The applicant said that he could not remember and was confused about how much the smallest [product] cost him. I asked him why, if he still owed money for six [products] after the first delivery, [Mr C] would give him another 35 [products] without full payment. The applicant said that he had promised [Mr C] that he would pay the full amount next time if he gave him the 35 [products]. I reminded the applicant that he’d said he had not paid the full amount owing at the third delivery and yet [Mr C] had still left him with more [products]. The applicant said he had meant to say that he had actually promised to pay everything he owed after the third delivery.
The applicant said that [Mr C] had warned him that it would be the last time he gave him any [products] unless he paid, and that he’d come to look for him if he did not pay. I asked whether the applicant was worried at that time. He said he was because he knew he could not pay. I asked why, if he was already worried for his safety at that stage, he went on to sell the third lot of [products] but not repay the money. He said that he had repaid RM10,000 from the sale of those last [products] and thought he’d have time to pay after the next delivery. I pointed out that the applicant had already said that he had been told this would be the final delivery if he did not pay in full. The applicant did not respond directly but said that he had enjoyed the money and the leftover was not enough to pay.
The applicant said that the price he’d paid for each [product] may have ranged from RM5,500 to RM6,500 while he sold them for between RM5,300 and RM6,600.
I asked what he had done with the 10 [products] that remained unsold. He said he had hidden them in the forest because someone was looking for him to steal them. The applicant did not elaborate.
He said that the boss had come to get the [products] and had threatened to kill him. I asked him why he did not return the 10 [products] given that he owed a debt. The applicant said that the boss had used dirty tactics to get the [products] back rather than going about it in the right way. The boss had planned to [do something to affect the products]. He said that he hid the [products] after this. I again asked the applicant why he did not simply return the [products] to the boss to whom he owed money. He said that the boss did not want the [products] but wanted the money, because their return transport would be costly. He was unable to tell me how much the transport would cost.
I asked the applicant how the [products] were delivered to him each of the three times he had received them. He said they’d come by truck and he’d paid RM50,000 for the transport each time. I clarified that he had paid RM150,000 in total for three transports, which he confirmed. I asked why it had cost the same amount each time though there were different numbers of [products] being delivered. He said it was due to the risk factor; they were not coming in legally as they did not pass through Customs.
The applicant said he kept his [products] at the back of his house in an empty lot that did not belong to him. He said that he obtained permission from the landowner to use it, and that he was not charged to use it.
I asked the applicant to tell me more about his travels to [Country]. He said that he had gone there in 2013 or 2014 because he wanted to look for [products]. That was where he met [Mr C], in a place named [Name]. The other three trips to [Country] had been to see how his friend took care of his own [products]. I reminded the applicant that he had previously told me that he had first met [Mr C] in his own hometown. He corrected himself, saying that the meeting in his hometown had been their second meeting. I asked again for the name of his friend and after some time he said ‘[Mr D]’. I reminded him that he’d previously said that this friend was [Mr A]. The applicant said that [Mr A] had introduced him to [Mr D], but he provided no further details about [Mr D].
I asked the applicant whether he had any evidence to support any of his claims. He said he had nothing as things were paid for in cash in Malaysia and business was done informally. I told him that I found it hard to believe that with so much money involved, amounting to over AUD150,000 across three debts, there was no evidence at all. I invited the applicant to respond to my concern but he did not. He later returned to this point and said that business in villages wasn’t done with evidence.
The applicant said he had last been in touch with [Mr A] at the end of 2014. I told him that he’d previously said that [Mr A] had been the one who had told him that the boss he owed money to had died in 2020. The applicant denied having said this. He said that a [friend], who also knew [Mr C] because he bought [products] from him, had told his brother and his brother had told him. I reminded him that he had said that he was not in touch with any of his siblings. The applicant replied that his brother had told his mother, and his mother had told him.
I asked the applicant whether he had ever met the boss to whom he owed money, in person. He said that he had never met him nor spoken with him. The boss had always remained in [Country]. I reminded him of his claims that the boss had come to his hometown to [do something to the products]. He clarified that the boss paid someone to [do something].
The applicant said that after all this, in 2015 someone had come to look for him at his family home and his younger brother had seen a gun on the man’s belt. He was unable to provide any further detail on this incident.

Two weeks later, the people who were after him had seen him at his family home but were unable to catch him. He had run off as his younger brother had warned him just in time. They had asked for money from his mother and she had given them RM200. They’d said they would continue coming as long as the debt remained unpaid, and if they saw the applicant they would shoot him.
Soon after, the applicant said that his [friend] also told him that people had come to look for him and that he should be careful.
The applicant confirmed that he had not experienced any other harm in Malaysia throughout his life until his departure to Australia in 2015.
However, the applicant said that since he’d come to Australia people had continued to visit his house approximately monthly. At another point in the hearing he said it was twice monthly. If his mother sees them coming she shuts the doors and windows and pretends she isn’t home. If she doesn’t see them, she sometimes gives them RM50-100 if she has it available. His mother does not know who the people are but they look to be [Nationality], and it has always been the same two people. I pointed out that he had previously said that only one person came to his house and it was always the same person. The applicant corrected himself to say that there were two people.
The applicant said that when the people came to his house they threateningly ask his mother when payment will be made. They raise their voices and tell her that the ‘big boss’ wants his money. The applicant confirmed that the people had never said or done anything else when they came to his family home.
The applicant did not know which of his three creditors these people represented. I put to him that I was incredulous that his mother would give money to random strangers who turned up at her door. The applicant said that his mother just gave them money to avoid them doing something to her. I questioned what she was afraid of them doing to her. The applicant said that they might harm her. I noted that they had never done anything to his mother, nor had they threatened to do anything. He said that she was nonetheless scared. The applicant confirmed that she did not always pay them money. I asked what would happen when she did not pay. He said that the people would get upset and scold her, but they had not harmed her in any way. I asked if she had gone to the police to report the people. The applicant said that she had, but the police had told her that it was an unpaid loan and the other party had not done anything unlawful.
The applicant did not keep track of how much money he still owed, even though his mother paid people small amounts, because his debt was too large. I asked whether he had any idea of who was coming to his mother’s door. He did not, but said it was always the same person.
I asked whether the applicant had repaid any of his debts since having come to Australia, or whether he had saved any money to pay them. He said he had not, as he had not worked in Australia. He clarified that he had only worked illegally in order to survive and that none of the three debts had been repaid at all.
The applicant said he was afraid that if he returned to Malaysia he would be killed. He reasoned that because he’d heard that someone else had been killed for the same reasons and by the same people, the same would happen to him. He said that incident had been in the news but it was a long time ago and he had no evidence. I asked how he knew who was after him and he said that his [friend] had told him. The applicant said that because the people were looking for him in the same way they’d searched for the person whom they’d killed, they wouldn’t be satisfied until they had him.
The applicant said that he had last spoken with his [friend] in 2016. I asked why he thought that the people would still be after him, eight years later. The applicant said that they continued to look for him at his family home and that they had not harmed his family because it was only him that they were after. I asked why they would want to kill him rather than have their money repaid. The applicant said that he had no money so they would take his life. He said that other people had sold their houses to pay their debts in order to avoid being killed. I asked whether his mother had considered selling the property she’d received from her parents to help him repay the debt. The applicant said his siblings wouldn’t allow her to do this.
The applicant was also afraid of the other two creditors to whom he owed lesser amounts, because they could “do anything” to him; they might shoot him. I asked what made him think that they might do this and he said “[Nationality] people are like that”. One of these creditors had once come to look for him at his family home but when they couldn’t find him, had left. The applicant did not know whether they had come to his family home since he had left the country and he had not heard from them.
The Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[1]
[1] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
On the basis of the evidence before me, I did not find the applicant’s claims to fear harm for reasons of owing money arising from numerous [product] deals, credible.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Findings of Fact and Reasons
The applicant travelled to Australia on a Malaysian passport that I have no reason to question the validity of. He has claimed to be born in Kelantan, Malaysia, and a Malaysian citizen. I accept that the applicant is a Malaysian citizen and that his receiving country is Malaysia.
The applicant said that he had paid someone $500 to complete his Protection Visa application and that they had only been in contact via telephone. The applicant had conveyed his protection claims for inclusion in the form but had not seen the final version of the application. He said that it may have been edited to change his claims. He later confirmed that certain aspects of the original claim were incorrect. I accept that the applicant had paid another person to prepare his protection visa application and that he had not seen the final version.
I accept that the applicant borrowed a sum of money from his grandparents and did not repay them. I accept that his siblings do not like him and that he is not in contact with them, but that he remains in contact with his mother.
I have considerable concerns regarding the applicant’s central claim of fearing harm for reasons of owing money arising from numerous [product] deals. These concerns are covered in paragraphs 61-70 below.
I am concerned by the applicant claiming to have had friends named [Mr A] and [Mr D] who were connected to his alleged [product] business, yet struggling to recall each of these names, including after having referred to them at least once in the hearing. I find it vexing that he would forget the given names of people whom he called friends and who allegedly played significant roles over time in the development and/or operation of his alleged business.
Considering the size of the loans and there being no relationship that bound him to the creditors such that deals could be made on trust, I am concerned that there would be nothing to evidence any of the three loans.
I find it implausible that the applicant would struggle to recall the largest creditor’s given name and not know his full name. I find his contradictory evidence on whether he took money from him or just [products], to add further concern to his claims. The evidence referring to the applicant having taken two sums of RM150,000 based on the creditor trusting him, is improbable.
The applicant’s evidence of whether he had repaid any part of any of his debts was contradictory and unreliable. This includes claims that his mother paid irregular amounts of RM50-100 over the course of nine years to unknown people who visited her house, and that those people never made additional demands.
The applicant’s evidence regarding visits to his family home by creditors or their representatives, is concerning. His evidence as to who came, how often, and what they said and did was inconsistent and unreliable.
In addition, the applicant’s evidence about how many [products] he received at any one time, how much he paid for them in total, how much they cost individually and how and where he met his contact [Mr C], was inconsistent and unreliable.
Using the applicant’s numbers, by his third delivery he had been given 46 [products] that he had not paid for. His claims that he kept receiving a significant number of [products] even though he had not paid for previous deliveries in full, is implausible.
I find it vexing that the applicant’s costing indicated that he had sold his [products] for less than he had purchased them.
The applicant’s response as to why he did not return the unsold [products] to his creditor was inconsistent and implausible.
Another concern arising from the applicant’s evidence includes his claim of having paid RM50,000 for each of the three transports of the [products]. This is implausible when considering his claim to have borrowed only RM50,000 from his grandparents. He would have needed RM100,000 in total to pay for his first delivery and he provided no evidence to indicate he had this sum available.
For the reasons above, I do not accept the applicant took on the loans as described, that anyone has threatened his life, nor that he was involved in the [product] trade as described.
I find that the applicant took a loan from his grandparents and used it in a way that rendered him unable to repay it.
Does the applicant satisfy the refugee criterion for protection?
The refugee criterion requires the applicant to face a real chance of harm in the reasonably foreseeable future upon returning to Malaysia. A ‘real chance’ is a substantial chance and not a remote or far-fetched possibility.
The applicant owes a sum of money to his grandparents who passed away following his departure from Malaysia to Australia. His mother is accepting of the fact that he never repaid them, though his siblings are not. The applicant does not have a positive relationship with his siblings but there has been no suggestion, nor is there any reason to believe, that they have ever sought to harm him or plan to do so in future.
I have also considered whether the applicant would face a real chance of harm as a result of his young son returning to Malaysia with him. When the question of where his son would reside was put to the applicant, he did not provide any basis upon which a possibility of harm would exist. To avoid doubt, the applicant’s son was not a party to his claim. Other than a brief mention of him when I asked, he did not refer to him in any of his evidence. I find that the applicant does not face a real chance of harm arising from his son returning with him to Malaysia.
Having considered all the evidence and claims before me, I find that the applicant does not face a real chance of harm into the reasonably foreseeable future in Malaysia. Therefore, I find that the applicant is not a refugee.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. As the applicant does not face a real chance of harm, he also does not face a real risk of harm.
I find that the applicant does not face a real risk of harm if he were to return to Malaysia. The applicant therefore does not satisfy the Complementary Protection criterion for protection.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decisions under review.
Date(s) of hearing:    19 November 2024
Representative for the Applicant: N/A
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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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