1928473 (Refugee)

1928473 (Refugee) [2024] AATA 4438 (3 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1928473
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Adam Johnson
DATE:3 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 October 2024 at 3:30pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – economic conditions – employment – family medical expenses – physical assault – threats from criminals – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 7 May 2019. The delegate refused to grant the visa on the basis that the ‘applicant is not a person to whom Australia has protection obligations’.
3. The applicant appeared before the Tribunal on 2 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
4. 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.
5. 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.
6. 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).
7. 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.
8. 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
9. 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

As outlined above, the issue in this case is the credibility of the applicant and whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family as a person who is a refugee or meets the criterion for complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Hearing, credibility, findings and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Malaysia and accordingly his claims will be assessed against Malaysia.
[In] March 2016 the applicant arrived in Australia on a valid visa which expired [in] 2016. He subsequently became an unlawful non-citizen. On 30 April 2019 the applicant was granted a bridging visa and made application for a protection visa in about 24 April 2019/7 May 2019.
In the applicant’s application for a protection visa dated 24 April 2019 /7 May 2019 received 8 May 2019 (the “PV application’), the applicant stated/claimed (not corrected for spelling or grammar):
Q75.
I am seeking protection in Australia for economic reasons so that I do not have to return to Malaysia.
Q76 Why did you leave that country(s)?:
My siblings and I left Malaysia to find money to support my ill father back in Malaysia. I attach his medical records for your reference. My sister [Sister A] and brother [named] came to Australia and are working. They send money back to my father and mother. I came here to help care for [Sister A’s] children while she works. Childcare in Sydney is very expensive and she is on minimum wage she cannot afford childcare. As I do not have work rights I helped take care of her kids and clean the house.
In Malaysia medical expenses can be very expensive. They do not have medicare or social welfare. He had a [medical condition] and needed [specified treatment]. This is very expensive, especially if we want to give him good medical treatment, not the ones found at the general Hospital.
My father had money problems prior to his [medical] condition. I helped him since I was a small boy in this retail store. My father had a lot of business debts. Business was not good, especially due to the worsening Malaysia and economy under the former Prime Minister. I do not have very nice words for our former Prime Minister. I blame him for the economic decline of Malaysia and of foreign investors leaving the country in droves
Q77 What do you think will happen if you return to that country(s)?
We fear economic hardship if we return to Malaysia. I would not be able to help in our family earning for survival of my parents and siblings.
Q78 Did you experience harm in that country(s)?
No.
Q80 Did you move, or try to move, to another part of that country(s) to seek safety?
No.
The economic situation would be the same in every part of Malaysia. And the chances of earning a decent wage for my family survival is minimal without education. I left high school without graduating so I can help out with my fathers and the family business. This was also because my father became ill. My family needs me to help. I am now helping my brother and sister here while they earn money to send back to my father and mother.
Q82 Do you think the authorities of that country can and will protect you if you go back?
It is a national economic crisis which the new government is trying to help Malaysia get out of. But having over a trillion ringgit in depth the government only gives small handouts like RM 300 to each person. I cannot rely on our government for survival. We do not have Centrelink in Malaysia.
As I said the whole of Malaysia is in economic crisis. Where ever we moved to it will be the same.
The decision of the delegate dated 8 October 2019 summarised the applicant’s claims as follows:
·     They departed Malaysia for financial reasons. Their father was ill and the medical expenses in Malaysia were very high. They hope to find money to support their ill father who is residing in Malaysia. There is no welfare system in Malaysia.
·     Their family was experiencing financial problems before their father became ill. The former government is responsible for the country’s economic decline.
·     If they return to Malaysia, they fear economic hardship. They would not be able to earn enough money for the survival of their parents.
·     They do not believe the authorities can help them with economic issues.
The applicant gave evidence before the tribunal on 2 July 2024.
The following is a brief summary of evidence received by the Tribunal.
The applicant arrived in Australia [in] March 2016. The applicant was born on [date] and attended high school but did not finish his education to a high school level. The applicant gave evidence that he left school in order to help his parents in the family business, for the period of his life when he was aged [age range] years of age, at which time he came to Australia.
The applicant gave evidence that he arrived in Australia.
The applicant told the Tribunal the reason why he left Malaysia was that it was hard for him to get a job, as he left school early to help in the family business. He paid an agent to arrange travel to Australia, who told him he could earn $30000 ringgitt in three (3) months. He arrived in Melbourne and was employed in the regional areas of Victoria [specified job]. He then moved to Sydney and worked in [industry 1]. He said he intended to return to Malaysia but did not do so.
He remained in Australia after his visa expired and in 2019 he paid someone $100 to assist him with completing a protection visa application. He was not able to explain the delay from 2016 to 2019, except that he had to save approximately $1500 before making the PV application.
He confirmed his grounds in the PV application were that he wished to remain in Australia to earn money for his family, as his Father (at the time of the PV application) was sick, required surgery and had medical expenses. The applicant confirmed his Father had overcome his medical issues in or about 2019 and was ‘good now’ as at the date of the hearing, noting his Father still required routine check-ups. He confirmed his mother passed away on or about [a date in] October 2020. He stated the family business shop was no longer running and asserted the government took or closed the shop owned/operated by the applicant’s family.
The applicant gave evidence that if he was required to return to Malaysia, he would have no support as the family business no longer existed and he would not be able to find a job. He said he lived with his [sister] who financially supported their Father and brother in Malaysia. The applicant confirmed he worked part time 3-4 days per week to earn funds and pay rent. He gave evidence he lived with his sister and also completed domestic duties, including cooking, cleaning and child minding for her, as childcare was expensive in Sydney. He made reference to being concerned he would be forced into criminal activities such as burglary and drugs, if required to return to Malaysia.
Independent Information
The DFAT Country Information Report on Malaysia dated 24 June 2024 relevantly noted as follows.
ECONOMIC OVERVIEW
2.7 The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2022,real GDP growth was 8.7 per cent and per capita GDP was USD 11,993 (AUD 18,000). Since Independence, Malaysia has transformed from a commodity-based economy focused on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia has also developed its service sector, which now contributes half the country’s economic growth.
2.8 Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. Households living below the national poverty line of MYR 2,589 (AUD 864) fell from over 50 per cent in the 1960s, to less than less than 6.2 per cent in 2022. Persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population (known as the ‘B40’) who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states.
2.9 The COVID-19 pandemic had a major economic impact on Malaysia, particularly on the most vulnerable. Poverty rates rose and growth fell due to the COVID-19 pandemic in 2020 and 2021, although the economy has since recovered. Ongoing economic challenges include inflation and cost of living increases, as well as high levels of household debt.
Employment
2.10 In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium and large enterprises are highly reliant on migrant labour. In 2023, the Department of Statistics Malaysia estimated there were 2.2 million documented migrant workers in Malaysia. Unofficial estimates of undocumented or irregular migrants vary considerably. In 2023, the IOM estimated there were also a further 1.2 to 3.5 million undocumented migrants living in the country. According to the US Department of Labour, migrant workers in Malaysia are frequently subject to abuses ranging from excessive recruitment fees to serious violations of terms and conditions of their employment.
Health
2.11 Malaysia has a well-established universal health care system which is accessible to most of the population. Health facilities are generally available within a five kilometres radius in urban centres. Healthcare is less available outside major cities, especially in Sabah and Sarawak. Healthcare for Malaysians is generally affordable: in-country sources reported that Malaysians can pay as little as MYR 1 (AUD 0.33) for a doctor’s visit and MYR 1.5 (AUD 0.50) per day to stay in a hospital.
2.12 While foreign nationals, stateless people, asylum seekers and refugees technically have the same access to the public health system as Malaysian citizens, they are required to pay ‘first class’ treatment fees, which are much more expensive. First class fees can range from three to 10 times what would be paid by a Malaysian citizen – in-country sources report first class fees of approximately MYR 15 (AUD 5) for a doctor’s visit and MYR 200 (AUD 66) per day for a stay in hospital – although fees can vary at the discretion of medical and hospital staff. These first class fees are generally unaffordable for poor, undocumented migrants.
2.13 People living with disabilities (PLWD) in Malaysia often face challenges in daily life. UNICEF reports that PLWD, especially children, are often hidden, portrayed negatively or excluded from society, face daily stigma and discrimination, and are prevented from accessing their rights due to gaps in legislation.
[ … ]
Victims of Loan Sharks
3.149 Usury is illegal. The Moneylenders Act (1951) requires that moneylenders have a licence and not charge interest rates above 18 per cent for an unsecured loan, which must not compound. Loan sharking is also covered under section 427 of the Penal Code, which prohibits ‘committing mischief’ and can carry a five-year prison term.
3.150 In practice, loan sharks or ‘pay-day financiers’ (unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), operate openly in Malaysia and charge interest as high as 50 per cent. Advertisements for cash loans appear on public property, including lamp posts and utility boxes. Loans offered through social media or smartphone apps are also common.
3.151 Motivations for taking out loans vary and can include gambling and economic disruption caused by the COVID-19 pandemic. Others take out loans for to finance small business which, if the business fails, sometimes become unsustainable debts. Loans are also made by people rejected by banks or who find bank decision-making slow or to require a lot of paperwork.
3.152 Those who do not repay loans face serious harassment. On rare occasions, victims of loan sharks have faced violence or have been sold into slavery. It is common for borrowers to have their house splashed with red paint, which is generally culturally understood to mean that they have not paid debts, causing public shame. They sometimes have their picture or pictures of their identity documents posted on telegraph poles, and families are sometimes harassed. Loan sharks sometimes hold victims bank cards or passports as collateral. Loan sharks sometimes continue their harassment even after [sic] loan has been paid off.
3.153 State protection is available to victims of loan sharks, but it is often ineffective. Being the victim of a loan shark is often perceived as a moral failing, and some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them. Formal credit agencies can consolidate loan shark debts and provide payment plans, providing some options for victims.
3.154 DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available but not always effective.

The Tribunal considered the evidence received at hearing as well as all other information on the Tribunal file, both individually and cumulatively, in order to make findings.
Conclusions Regarding the Refugee Convention
A refugee is a person who has, as defined in subsection 5J(1)(a) of the Act, a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.
The Tribunal finds the applicant’s claims and fears are not a fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. The applicant confirmed his application for protection was based on economic grounds, in that if he was required to return to Malaysia he would suffer economic hardship and find it difficult to find employment.
Based upon the material submitted to support his application and the evidence given at the hearing, the Tribunal finds there to be insufficient evidence to substantiate the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, as the claims made by the applicant do not fall within or meet any of those reasons, nor does it demonstrate a well-founded fear of persecution. In the circumstances, the Tribunal is not satisfied the applicant is a refugee, as defined by section 5H(1) of the Act, such that an assessment in relation to section 5H(2) of the Act is not required to be made.
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).
Complementary Protection
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a), the Tribunal has considered the alternative criterion in section 36(2)(aa).
Under section 36(2)(aa) of the Act, the Tribunal is required to determine whether or not there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that he would suffer significant harm.
Again, the Tribunal notes and finds the applicant confirmed his application for protection was based on economic grounds, in that if he was required to return to Malaysia he would suffer economic hardship and find it difficult to find employment.
Based upon the material submitted to support his application and the evidence given at the hearing, the Tribunal finds there to be insufficient evidence to substantiate the existence of substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that he would suffer significant harm, as the Tribunal finds there is insufficient evidence of both (i) real risk and (ii) significant harm, as defined in the Act. The applicant’s claim for protection is based upon his desire to secure better economic conditions and earnings in Australia, rather than Malaysia and based upon his belief that if he was required to return to Malaysia he would suffer economic hardship and find it difficult to find employment.
The Tribunal finds (a) there is insufficient evidence of exposure to or any real risk of suffering significant harm demonstrated by the applicant in the hearing and (b) the applicant’s claim for protection is based upon his desire to secure better economic conditions and earnings in Australia, rather than Malaysia, to support his family in Malysia, including his Father who had suffered medical issues, which the applicant confirmed had resolved and (c) the applicant’s claim for protection was based upon his belief that if he was required to return to Malaysia he would suffer economic hardship and find it difficult to find employment..
Based upon the insufficient evidence before the Tribunal concerning exposure to real risks and significant harm, the Tribunal finds the applicant has not established there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that he would suffer significant harm, as defined in the Act.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies sections 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Adam Johnson
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 4438

3 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Standing