1932629 (Refugee)

1932629 (Refugee) [2024] AATA 3592 (15 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1932629

COUNTRY OF REFERENCE: Malaysia
MEMBER:Peter Vlahos
DATE:15 May 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 15^th May 2024 at 4.30PM
FCATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan sharks – physical assault – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 360, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 12 January 2019. The delegate refused to grant the visa on the basis that the application did not meet the requirements of s.36(2) of the Act.
Procedural history of the applicant’s application
On 22 April 2024 the Tribunal wrote to the applicant informing her that her application for review was being prepared for hearing by the Tribunal and the applicant was asked to assist the Tribunal to prepare her file for review by providing a completed pre-hearing information Form within 7 days of receiving the Tribunal’s notification.
On 13 May 2024 the applicant submitted to the Tribunal the pre-hearing information Form and indicated that she did not wish to attend an in-person hearing before the Tribunal on a date and time the Tribunal chose but preferred that the Tribunal consider her application for review on the papers without hearing.
Therefore, the Tribunal has determined this matter on the papers with the applicant’s consent as provided for by section 360(2)(b) of the Act.
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 Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s Country of origin
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (the ‘Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.
Therefore, on the basis of the abovementioned evidence, the Tribunal further accepts the applicant’s identity as a citizen of Malaysia as he has claimed.
Protection in another country considered
Finally, the Tribunal is satisfied from the evidence before it that the applicant has no claim to protection in any third country.
Department’s File
The Tribunal has before it the Department File relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision record. The applicant provided a copy of the delegate’s decision to the Tribunal which was attached to his review application.
Background -the Applicant’s migration history
The applicant arrived in Australia on a UD-601 Electronic Travel visa [in] January 2019. On 16 November 2019 the applicant applied for a Protection visa (XA class) and was granted the associated bridging visa.
EVIDENCE CONSIDERED BY THE TRIBUNAL[1]
[1] see, AAT File and Department of Home Affairs File [number]
The applicant’s protection claims as written in her application are as follows:[2]
[2] see, Department of Home Affairs File [number]
I AM A WIDOW WITH [number] CHILDREN. MY HUSBAND HAS LEFT
ME WITH SOME ACCUMULATED DEBTS HE LEND FROM THE
LOAN SHARK BY USING MY NAME. HE PROMISE ME TO GET
A JOB TO TOWN TO PAY BACK THE DEBTS, BUT HE HAS
GONE AND MARRIED TO ANOTHER WOMAN. I ASK HELP FROM
RELATIVES AND FRIENDS TO PAY BACK THE DEBTS BUT THEY
DO NOTHING. THE LOAN SHARK THREAT ME, WHICH IS THE
FORM OF A THREAT THAT COULD LEAD TO LOSS LIFE. SO
I RAN AWAY AND LEFT MY CHILDREN TO MY RELATIVES. I
PROMISE TO THE LOAN SHARK TO PAY THE DEBTS SO THAT
THE LIFE OF MY CHILDREN ARE GRANTED. BUT I COULDN'T
GET A HUGE AMMOUNT OF MONEY WORKING IN MALAYSIA
AND PAY THE DEBTS ON TIME SO THAT THE INTEREST NOT
INCREASES. SO, I DECIDED TO COME TO AUSTRALIA FOR SEEKING A PROTECTION.
I HAVE BEEN BEATEN BY THE LOAN SHARK'S GANG WHEN ASKING MONEY FROM ME.
I ASKED HELP FROM THE AUTHORITY BUT STILL NOT GOING WELL.
THEY STILL COME AND THREATED ME.
I TRY TO MOVE TO THE CITY BUT THEY(LOAN SHARK) STILL
CAN FIND ME.
I WILL BE THREATED THE SAME SINCE I DIDN'T PAY ALL THE
DEBTS TO THE LOAN SHARK
MY LIFE IS NOT GRANTED. THEY(LOAN SHARK) WILL DO THE
SAME AS BEFORE TO ME WHEN THEY FIND ME SINCE MY DEBTS IS NOT FULLY PAID.
BECAUSE THE LOAN SHARK GANG ARE EVERYWHERE
AND THEY GREW AND BECOME STRONGER, SOME OF THE
AUTHORITIES GET PAID FROM THEM TO LET THEIR ACTIVITIES
UNTAKEN DOWN.
THE LOAN SHARK 'S GANG CAN EASILY TRACK ME.
Country Information
Current country information indicates that money lending is a significant problem in Malaysia, but the government is attempting to assist those caught up in it with programs and crack downs on the illegal lenders.[3]
[3] DFAT_ Country Information Report_ Malaysia_ (June 2021).
Victims of Loan Sharks
3.109    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), carry out money lending activities without a licence, charging high interest rates to do so. Loan sharks operate very publicly in Malaysia and, while the practice is illegal, advertisements listing phone numbers and offers of cash loans appear on public property, including lamp posts and utility boxes. Media report loans carry an annual interest rate of 24 to 60 per cent; others report rates of 30 to 40 per cent per month; or up to 15 per cent per day. In-country sources advise that loan sharks in Malaysia do not seek ‘protection money’.
3.110    Sources report loan sharks enter into ‘sell and purchase agreements’ in Sabah, whereby the      borrower’s house is used as collateral for the loan. DFAT is aware of reports of houses valued      up to MYR 1 million (AUD 320,000) being used as collateral for a loan of MYR100,000     (AUD32,000). If the borrower defaults on their loan, the loan shark exercises the sell and     purchase agreement to transfer the house into their name. Sources report lawyers are     facilitating the sell and purchase agreements, described as a house sale agreement disguised       as a loan agreement, in return for a cut of the house sale profits. Sources claim borrowers agreeing to sign their house over as collateral are under significant duress or lack sufficient    education to understand the agreement they have signed.
3.111    DFAT is aware of a case of an individual in peninsular Malaysia who engaged a loan shark to     obtain a loan to repay their mortgage, signing the house over as collateral under a ‘sell and        purchase agreement,’ after becoming involved in gambling following the death of their spouse. When unable to repay the loan shark, the individual’s family supported them to engage a formal      credit agency to obtain a loan to repay the loan shark. DFAT understands loans ranging from     MYR200,000 to MYR300,000 (AUD63,000 to AUD95,000) accompanied by payment plans have been arranged by formal credit agencies to repay loan shark debts. However, not all debtors may       be aware of the availability of such services.
3.112    Sources report that an individual who is unable to service a debt from a loan shark risks threats or          actual physical violence, having their home splashed with red paint (culturally understood as a    symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or      having their families’ physical safety threatened. In February 2021, police arrested three people,      believed to be involved in illegal money lending, after they threatened to torch and throw paint on       the home of a woman who had allegedly refused to settle a debt of MYR11,000 (AUD 3,500).           Sources claim that loan sharks engage gangsters to collect debts and harass and threaten         borrowers and their family members, and that borrowers and their family members have been     shot and had fingers cut off. Due to the illegal/underground nature of loan shark activity, DFAT is          not able to verify these claims. There is significant societal shame associated with not being able     to repay a loan shark. Sources report some people see suicide as the only honourable way out of       being unable to repay a loan shark debt. DFAT is aware that those in debt to loan counselled by           intermediaries to place their family in a safe location and travel overseas to earn a foreign income           to repay their debt faster, and to reduce risks and shame to their family.
3.113    DFAT understands authorities tend to be unsympathetic towards individuals who have     accessed loan shark services, regarding them as having participated in an illegal practice.     According to local media, the Commercial Crime Investigation Department reported 3,903           cases and arrested 2,698 people in relation to loan scams between January and November 2018, with total case-related losses estimated at MYR36 million (AUD11.4 million). Local media    also report loan sharks have become more publicly visible and more ‘corporate’, in recent years,     and have increased promotion of their services on social media platforms such as Facebook and WeChat. In October 2019, media reported that the RMP planned to embark on a ‘major war’      against loan sharks, following reports that Ah Long syndicates were becoming more aggressive.     DFAT is not aware of any significant enforcement action in this area.
3.114    The MCA’s Public Services and Complaints Department (PSCD) plays an intermediary role        between loan sharks and Chinese Malaysian victims of loan sharks who are unable to repay     their loans, and reportedly receives an average of 500 to 600 complaints regarding loan sharks each year. According to local media, the MCA reported that 16 cases of people owing loan               sharks over MYR2.11 million (AUD670,000) had arisen in the first 19 days of January 2019           alone. Local media also reported that, in 2020, the PSCD received 140 complaints from victims    who said illegal money lenders went after their families to try and extort them for payment. In     2015, the PSCD reported over 70 per cent of borrowers were Chinese Malaysian. Sources report the MCA can negotiate loan repayment settlements with repayment rates     negotiated       down to match the government rate.
3.115    The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly     for the Malay community has an established call centre that helps to educate (chiefly Malay)     people on the dangers of borrowing from loan sharks and suggests alternatives, as well as          helping victims to settle their debts. The PPIM maintains a Malay language website        (ahlong.ppim.org.my) where people can report loan shark cases, and which also lists details of           prior cases. Sources vastly differing views on the reasons individuals engage illegal       moneylenders. Some claim that up to 80 per cent of borrowers are supporting gambling       activities and other debts. Others claim borrowers are public servants trying to cover daily      expenses such as children’s education, or businesses excluded from mainstream finance due to insufficient documentation, bankruptcy or a poor credit history.
3.116    The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable         investigative powers against alleged loan sharks. Police can visit, enter, inspect or search     premises without a warrant, and seize moveable properties and business documents to assist      with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which          carries a fine of between MYR250,000 and MYR1 million (AUD80,000 – AUD320,000), or a         jail term of up to five years, or both. Police have made several recent high-profile arrests and           investigations of syndicates. In June 2020, police in Selangor arrested 18 people believed to           be involved in loan shark activities. The arrests were part of a larger operation by police, tagged         ‘Ops Vulture,’ which involved raids in five locations, culminating in 29 arrests between January           and June 2020. In September 2019, the RMP arrested 21 people in Johor allegedly involved in     syndicates illegally loaning money. In January 2019, the RMP arrested 13 suspects allegedly          involved in a syndicate providing fraudulent loan applications resulting in total bank losses of           MYR10.35 million (AUD3.28 million).
3.117    The general dampening of the economy during the COVID-19 pandemic may have impacted      upon loan sharks. PSCD chief Datuk Seri Michael Chong reportedly said that ‘even illegal    money lenders have stopped advertising their services since the start of the MCO because of the uncertainty in getting their money back.’
3.118    Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption. DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the       level of protection offered by police. DFAT assesses those who are unable to service debts to       loan sharks, and their family members, can face societal discrimination due to familial shame, and     may also face a real or perceived risk of harassment and violence from loan sharks and/or         gangsters. However, DFAT notes formal credit agencies are able to consolidate loan shark debts      and provide payment plans, and therefore engaging such agencies is an option to mitigate          against potential risks posed to those in debt.
THE TRIBUNAL’S FINDINGS AND REASONS FOR DECISION
Consideration of the Applicant’s claims
As the applicant did not attend the Tribunal hearing and there was no further information available to the Tribunal in the form of documents, or oral or written evidence, the Tribunal has made its decision based on the limited information before it.
The Tribunal does not accept that the applicant borrowed money from a money lender and that he had trouble repaying the loan.
There was no further information provided to the Tribunal in relation to who the loan sharks were, where they were located, how they loaned the applicant the money, whether it was cash or bank transfer.
The applicant provided no details as to whether she made any repayments.
The applicant claims that she went to the ‘authorities’ (the police) and reported the threats made by the loan shark but there was no documentation of this, and the Tribunal does not accept that the applicant went to the police and reported her problem to the ‘authorities’ as she claimed.
The applicant also claims she tried to re-locate ‘but the loan shark still found them’ but provided no evidence or explanation explaining how the loan shark was able to locate her when she attempted to relocated to another part of Malaysia. As there is no further information the Tribunal does not accept that the applicant moved or attempted to relocate as she claimed in order to avoid the loan shark’s threats.
Overall, the Tribunal on the evidence on file, does not accept any of the applicant’s claims.
Given these findings the Tribunal, therefore, does not accept that if the applicant returns to Malaysia, she will face a real chance of persecution from money lenders, or anyone associated with them.
Therefore, the Tribunal finds that the applicant does not face a well-founded fear of persecution as provided for in s5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s5H(1).
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).
CONSISDERATION OF COMPLEMENTARY PROTECTION

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection – in s.36(2)(aa). Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from money lenders or their associates. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s36(2)(aa).
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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 3592

15 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction