1933594 (Refugee)

1933594 (Refugee) [2024] AATA 4415 (25 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1933594
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:James Horsley
DATE:25 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 September 2024 at 10:10am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – declined hearing invitation – race – Chinese ethnicity – religion – Christian faith – applicant has not claimed to have suffered any past harm – workplace dispute and harm from gangsters – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 425, 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 dependant.
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 1 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 8 October 2019.
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, they are 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), they may nevertheless meet the criteria for the grant of the visa if they are 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 they 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE BEFORE THE DELEGATE
Protection visa application
According to his Protection visa application, the applicant claimed that he is a [age]-year-old Malaysian national of Chinese ethnicity and Christian faith, who was born in Kuala Lumpur, Malaysia. He claimed to have departed Malaysia from Kuala Lumpur International Airport on[date] March 2017, arriving in Melbourne on the following day.
In relation to his reasons for claiming protection in Australia, the applicant claimed the following:
·He worked at a state-owned factory in Malaysia, which was situated near water, and many locals suffered from cancer.
·As the applicant’s health condition deteriorated, he raised concerns with his manager, but his manager refused to listen and threatened that the applicant would be in trouble if he reported to a high level.
·However, the applicant felt that he should report to the government. On his way to the government, gangsters, sent by the head of the factory, kicked him and threatened him with death if he continued to report.
·Following this, the gangsters went to his home, smashed his windows, and scolded him.
·The gangsters often threatened him and kicked him. The applicant’s ‘body was badly hurt.’
·The applicant attempted to move to another area, but the gangsters watched him and found him.
·If he returns to Malaysia, the applicant fears the gangsters will kick him, threaten him, and possibly kill him. The applicant fears that the head of the factor / factory officer will send these gangsters to harm him.
·The Malaysian authorities will not protect him from the harm he fears, because the authorities receive a profit from the factory, and the head of the government is powerful and connected with local authorities.
·The applicant is unable to relocate in Malaysia to avoid the harm he fears, because the gangsters will find him no matter where he resides, as the gangsters have a wide network everywhere.
In support of his application for a Protection visa, the applicant provided a copy of his Malaysian passport and a copy of his Victorian Driver’s Licence.
The decision of the delegate
As stated above, on 1 November 2019, a delegate of the Minister for Home Affairs refused to grant the applicant a Protection visa. The delegate did not offer the applicant an interview.
In essence, the delegate found that the applicant’s claimed fear of harm is not for a ‘refugee nexus’ reason, being for reasons of his race, religion, nationality, political opinion, or membership of a particular social group. Therefore, the delegate found that the applicant is not a refugee within the meaning of s 5H of the Act.
Under the complementary protection criterion, the delegate considered country information on the Royal Malaysian Police, corruption in Malaysia, and the judiciary. The delegate assessed that this country information indicates that while there is corruption within the police force, the authorities are willing and reasonably effective in combating crime. The delegate assessed that while the applicant may not have absolute protection in Malaysia, the authorities will provide the applicant with an adequate level of protection.
Accordingly, it was assessed that Australia does not have protection obligations to the applicant under ss 36(2)(a) and (aa) of the Act.
CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL
On 26 November 2019, the applicant applied for a review of the delegate’s decision. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
On 17 August 2023, the applicant emailed the Tribunal requesting a letter from the Tribunal to confirm that he has a pending application for review, in order to renew his Medicare card. In the email, the applicant updated his postal address and mobile telephone number. The email was sent from the email address registered on the Tribunal’s file, which the applicant provided in his application for review. On the same day, the Tribunal sent the applicant the requested letter to his email address.
On 6 May 2024, the Tribunal sent the applicant via email a ‘Pre-hearing Information Form’ and requested he complete and return the form within 7 days. The Tribunal did not receive a response from the applicant.
On 31 May 2024, the Tribunal sent the applicant via email an invitation to attend a hearing under s 425 of the Act, scheduled for 21 June 2024 at 10.30am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The invitation also requested that he complete and return an enclosed ‘Response to Hearing Invitation’ within 7 days.
The Tribunal sent the above two emails to the applicant’s registered email address, which he provided in the application for review. There are no indications that these emails were returned to sender or failed to be delivered.
On 20 June 2024, the Tribunal sent the applicant a SMS reminder of the hearing. The message read, ‘Reminder - Your AAT hearing is on 21/06/2024. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call [telephone number].’
The Tribunal sent the above SMS reminder to the mobile telephone number the applicant provided when updating his contact details on 17 August 2023 (see above).
On 21 June 2024, the day of the hearing, the applicant sent the Tribunal an email attaching a copy of his passport and a completed ‘Response to Hearing Invitation’ form. In response to a question about whether he will take part in the hearing scheduled for 21 June 2024, the applicant marked the box with the wording, ‘No, I will not participate in the hearing and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear.’ The email on 21 June 2024 was sent to the Tribunal from the same email address used to communicate with the Tribunal since the lodgement of the application for review.
On 21 June 2024, the Tribunal attempted to call the applicant three times on his mobile telephone number. On each attempt, the calls went to an automated voicemail. The Tribunal left a voicemail message for the applicant to return the call. The Tribunal made these attempted calls to the applicant’s original telephone number, which he provided in his application for review. The Tribunal then called the applicant on his more recently updated mobile telephone number, which he updated on 17 August 2023 (see above). An unidentified person answered the call, saying that the applicant was not available. The Tribunal left a message for the applicant to return the call. There are no indications that the applicant attempted to return the above calls made by the Tribunal.
Following this, also on 21 June 2024, the Tribunal responded to the applicant’s email stating the following:
‘Thank you for your email of 21 June 2024.
Under section 425(1) of the Migration Act (the Act), the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Under section 425(2)(b) of the Act, this does not apply if the applicant consents to the Tribunal deciding the review without the applicant appearing before it.
On 31 May 2024, the Tribunal sent you an email, inviting you to a hearing on 21 June 2024, as required by section 425(1) of the Act. The reason the Tribunal invited you to a hearing is because after considering the material before us, we are unable to make a favourable decision on this information alone.
On 21 June 2024, you emailed the Tribunal with a ‘Response to Hearing Invitation’ form, in which you indicated that you do not want to have a hearing and consented to the Tribunal making a decision on the papers.
The Tribunal has taken your email of 21 June 2024 as your consent to the Tribunal deciding the review without you appearing before it and will make a decision without holding a hearing in accordance with s 425(2)(b) of the Act.
If this was not your intention, and you do want a hearing, contact us immediately at [email protected], or call 1800 228 333.’
On 21 June 2024, in response to the above email from the Tribunal, the applicant sent the Tribunal another email stating, ‘I request not attend the interview and request paper decision.’ The two emails sent by the applicant on 21 June 2024 were from the same email addressed used to communicate with the Tribunal since the lodgement of the application for review.
Given that this email address has been used by multiple applicants to communicate with the Tribunal in different matters, additional efforts were made to contact the applicant to confirm his consent to a decision on the papers.
For example, on 25 July 2024, the Tribunal sent an email to the email address listed on the applicant’s Protection visa application form. The email requested the applicant to provide updated contact details to the Tribunal. Shortly afterwards, the Tribunal received an email from the email address used to lodge the application for review, stating, ‘I request not attend the interview and request paper decision.’
On 25 July 2024, the Tribunal also sent an email to an email address listed as the authorised recipient in the applicant’s Protection visa application form (a different email address to that referred to above). The email requested the applicant to provide updated contact details to the Tribunal. Shortly afterwards, the Tribunal received an automated bounce-back alert that the email failed to be delivered because ‘mailbox not found.’
In addition to the above two emails, the Tribunal also attempted to call the applicant on his mobile telephone, by calling two numbers listed on the Tribunal’s file. The first telephone number was listed on the applicant’s Protection visa application form and application for review. The second telephone number, the current registered number, was provided by the applicant on 17 August 2023 (see above). On each attempted call (on 21 June 2024, 24 June 2024 and 25 July 2024) [multiple calls on each day to both numbers], there was either no answer, or an unidentified person answered and said that the applicant was out and would return the Tribunal’s call. On several occasions, the Tribunal left voicemail messages for the applicant to return the Tribunal’s call. There are no indications on the Tribunal’s file that the applicant ever returned the calls from the Tribunal.
Given the circumstances above, the Tribunal finds it appropriate to make a decision on the papers. The applicant’s request for the Tribunal to do so was first made on 21 June 2024, and repeated again on 21 June 2024 and 25 July 2024. The requests were all sent from an email address that the applicant has used to communicate with the Tribunal since 26 November 2019, when he lodged his application for review.
In these circumstances, the Tribunal is satisfied that the applicant has consented to the Tribunal deciding the review without the applicant appearing before it, pursuant to s 425(2)(b) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Chinese ethnicity
According to the applicant’s Protection visa application, he is of Chinese ethnicity. There is nothing before the Tribunal to doubt the applicant’s claims in this regard. As such, the Tribunal accepts that the applicant is of Chinese ethnicity. Despite this, the applicant has not claimed to have suffered any past harm, including any discrimination or harassment, for reasons of his ethnicity. Therefore, the applicant has not expressed any subjective fears of harm for reasons of his ethnicity if he returns to Malaysia now or in the reasonably foreseeable future, and he does not meet the criteria in s 5J(1)(a) of the Act, as he does not fear persecution.
Even if the Tribunal accepted (which it does not) that the applicant holds a subjective fear of harm for reasons of his ethnicity, the Tribunal finds that there is not a real chance he would be seriously harmed for this reason if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal makes this finding for the following reasons.
According to the most recent DFAT report on Malaysia from June 2024, Chinese Malaysians make up some 23% of the population and comprise a high proportion of the professional and academic class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia.[1] DFAT notes that there are no laws or constitutional provisions that discriminate against Chinese Malaysians, while also highlighting that a predominately ethnic Chinese political party, the Democratic Action Party (DAP) won 40 of 220 seats in the lower house of parliament in the 2022 General Election.[2] The report does note, however, that Chinese Malaysians comprise a low proportion of the civil service, given policies that preference bumiputera (‘Malaysian term to describe ethnic groups including Malay and indigenous peoples’).[3] DFAT assessed that ‘Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector.’[4]
[1] DFAT, Country Information Report: Malaysia, 24 June 2024, at [3.11].
[2] Ibid, at [3.12].
[3] Ibid, at [3.13]. Also see ‘Glossary’ on page 5.
[4] Ibid, at [3.15].
However, in the applicant’s circumstances, there is no information before the Tribunal to suggest that he attempted to gain entry into the state tertiary system or obtain employment in the civil service in the past. There are no indications on the information before the Tribunal that the applicant ever operated a business in the private sector or sought to do so. The applicant’s Protection visa application contains inconsistent information about his work history. In one part of the form, it states that he has never been employed. However, in his claims for Protection, the applicant claimed to have worked in a factory. Nonetheless, the applicant has not claimed to have suffered past discrimination or harassment or differential treatment in the factory for reasons of his Chinese ethnicity.
If he returns to Malaysia, the Tribunal accepts that the applicant may experience low levels of discrimination if he pursues further study in the state tertiary system or if he seeks employment in the civil service. However, the Tribunal does not accept that this would amount to serious harm. Based on the above country information, as well as the very limited information and evidence available, the Tribunal does not accept there is a real chance the applicant will face serious harm for reasons of his Chinese ethnicity if he returns to Malaysia now or in the reasonably foreseeable future.
Christian faith

In his Protection visa application form, the applicant claimed to be of Christian faith. The applicant has not made any claims for protection on the basis of his religion. For example, the applicant has not made any claims of having suffered any past harm, discrimination or harassment in Malaysia for reasons of his faith. As such, he has not expressed any subjective fears of harm for this reason, and the Tribunal finds that the applicant does not meet the criteria in s 5J(1)(a) of the Act, as he does not fear persecution.
Even if the Tribunal accepted (which it does not) that the applicant holds a subjective fear of harm for reasons of his faith, the Tribunal finds that there is not a real chance he would be seriously harmed for this reason if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal makes this finding for the following reasons.
According to DFAT, Christians comprise some 10% of the total population in Malaysia, and there are Christian politicians in most political parties.[5] DFAT notes that it is illegal in Malaysia to proselytise to Malays, and if Christians do so, they face a ‘moderate risk of harassment by state authorities, potentially including violence and abduction.’[6] There is no evidence or material before the Tribunal to indicate or imply that the applicant ever proselytised to Malays in Malaysia or ever attempted to convert Muslims to Christianity. According to DFAT, ‘Christians are generally not at risk of societal discrimination.’[7] The DFAT report is silent on any discrimination or harassment faced by Christians that are not engaged in proselytising to Malays or Muslims.
[5] Ibid, at [3.75].
[6] Ibid, at [3.79].
[7] Ibid.
Based on the country information above, as well as the very limited information and evidence available, the Tribunal does not accept there is a real chance the applicant will face serious harm for reasons of his Christian faith, if he returns to Malaysia now or in the reasonably foreseeable future.
Workplace dispute and harm from gangsters
The applicant, in essence, claimed to be a whistleblower about a deterioration in his health, which he linked to the state-owned factory he worked at or the area in which the factory was based. The applicant provided very little information on this claim, and it is not clear from the wording of this Protection visa application form whether the water near the factory caused cancer amongst local residents or whether the factory polluted the waterways and caused higher rates of cancer among local residents. It is also not clear if the applicant suffered a deterioration in his health after being exposed to something at the factory or whether he suffered a deterioration in his health after being exposed to the nearby body of water.
The applicant did not name the company or factory he worked for in his Protection visa application form. In fact, in response to a question about his past employment history, the applicant wrote that he has never been employed. The applicant did not indicate which area of Malaysia this factory was based, what the factory produced, how the factory or the water was contaminated, and why he believes that the high rates of cancer, and his own worsening health, was connected to either the factory or water. The applicant did not say how his health condition deteriorated, whether he was diagnosed with any health condition, including cancer, nor whether he received any treatment for any health condition in Malaysia or Australia.
The applicant claimed that after the head of the factory did not take his complaint, he wanted to report to the government. He claimed that ‘on the way to government’, he was attacked by gangsters. However, the applicant did not say who in the government or which government body he sought to complain to, nor say whether he did report to that government official or that government body against the factory or the head of the factory after being attacked by gangsters.
On the attack and his fear of harm from gangsters, the applicant provided very limited information on this claim generally. For example, he did not say where this attack occurred, whether he sustained any injuries, or whether he sought medical treatment. The applicant did not explain why he believed the gangsters were connected to the factory or why he believes the head of the factory sent the gangsters. The applicant did not name the gang the gangsters belonged to or how his ‘body was badly hurt.’ The applicant did not explain where he attempted to relocate to, how the gangsters found out, and what they did to him when they found out he attempted to relocate.
The applicant did not say how he knows that the head of the factory has influence or connections with local authorities, and which local authorities specifically he was referring to. The applicant did not say how he knows that the gangsters have a wide network everywhere, and why the head of the factory or the gangsters would still be interested in him now, some seven-and-a-half years after he left Malaysia. He did not say whether he or his family members have received any threats or say whether he or his family members have been harassed by the head of the factory or the gangsters during this significant passage of time.
Given the very limited information and evidence available, the Tribunal does not accept the following claims:
·The applicant worked in a state-owned factory in Malaysia;
·The factory production damaged the health of local residents and workers at the factory, including by causing cancer;
·The factory was situated near a body of water that damaged the health of local residents and workers at the factory, including by causing cancer;
·As a result, the applicant’s physical health deteriorated;
·He raised concerns with his manager, but his manager refused to listen and threatened that the applicant would be in trouble if he reported to a higher level;
·However, the applicant felt that he should report to the government;
·On his way to the government, gangsters, sent by the head of the factory, kicked him and threatened him with death if he continued to report;
·Following this, the gangsters went to his home, smashed his windows, and scolded him;
·The gangsters often threatened him and kicked him and the applicant’s ‘body was badly hurt’;
·He attempted to move to another area, but the gangsters watched him and found him;
·The head of the factory is powerful and connected with local authorities; and
·The gangsters have a wide network everywhere.
On the very limited information and evidence available, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for reasons of his race, religion, nationality, political opinion, or membership of a particular social group if he returns to Malaysia now or in the reasonably foreseeable future.
On the very limited information and evidence available, the Tribunal is not satisfied that there are substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
CONCLUSIONS
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 decision not to grant the applicant a protection visa.
J Horsley
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 4415

25 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction