1935086 (Refugee)

1935086 (Refugee) [2021] AATA 1355 (19 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1935086
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Tamara Hamilton-Noy
DATE:19 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 March 2021 at 9:07am
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – Chinese Malay – family members bullied by loan shark – mother borrowed money for gambling debts – delay in applying for protection – credibility issues – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 426A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 December 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Malaysia, applied for a protection visa on 25 May 2019.
Claims and evidence
Evidence before the Department
In his written protection application, the applicant stated that he was born in Bintulu, Sarawak and that he had been living in [location], Sarawak before leaving Malaysia. The applicant stated that his father and mother both hold Malaysian citizenship and that he is of Chinese ethnicity and is Buddhist. The applicant claimed that he had left Malaysia because ‘clan discrimination leads to unfair treatment’ and ‘income and expenses cannot be balanced’. He stated that he had not experienced harm in Malaysia. If he returns, he fears he will be jobless, unable to survive, unable to support his own family and ‘economy down’. He stated he does not think he will be harmed or mistreated if he returns to Malaysia. In response to the question of whether he believed he could relocate to avoid any harm feared, he stated ‘yes’ and that he ‘will relocate after everything is fine’.
The applicant was not invited to an interview with the Department. A delegate of the Department found that the applicant may face low level discrimination in Malaysia because of his race, but is not a refugee because this does not reach the threshold of persecution under s.5J; and that he is not owed complementary protection because he does not fear significant harm because of his race and any economic hardship faced by the applicant does not amount to significant harm. A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 5 October 2020 the Tribunal wrote to the applicant and advised that it had considered the information before it and was unable to make a favourable decision on that information alone. The applicant was invited to a telephone hearing on 26 October 2020. At the time the invitation was sent, the Tribunal’s Melbourne Registry was closed due to ongoing restrictions arising from the COVID-19 pandemic. The Tribunal considered it appropriate to conduct the hearing by telephone, having regard to the Tribunal’s objectives of providing a review that is informal and quick and is proportionate to the complexity of the matter.
The applicant did not attend the hearing and on 26 October 2020 the Tribunal dismissed the application for review under s.426A(1A)(b).
On 29 October 2020 the applicant applied for reinstatement, stating that his phone had been broken and he couldn’t access his emails and that, for the same reason, he had not answered the Tribunal’s call on 26 October 2020. Given the matters raised by the applicant regarding his difficulties accessing his emails and using his phone on the date of the original hearing, the Tribunal decided to reinstate the application under s.426A(1C)(a) on 2 November 2020.
On 14 November 2020 the Tribunal wrote to the applicant and invited him to a telephone hearing on 25 November 2020. For the same reasons as set out above, the Tribunal considered that a telephone hearing was appropriate for this matter.
The hearing was conducted on 25 November 2020. The applicant was not represented at the hearing and the Tribunal was assisted during the hearing by a Mandarin interpreter. The Tribunal was satisfied from the answers given by the applicant during the hearing that he was able to give evidence and present arguments throughout the hearing. Following the hearing, on 27 November 2020, the applicant provided to the Tribunal a document containing a table, setting out payments relating to a ‘loan from [Mr A]’. This document is discussed further below.
The Tribunal wrote to the applicant on 5 January 2021 under s.424A. On 18 January 2021 the applicant provided the same document to the Tribunal that he had provided on 27 November 2020.
Consideration of claims and evidence
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
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.
Assessment, reasons and findings
The applicant travelled to Australia on a Malaysian passport and has consistently claimed he is a citizen of Malaysia. The Tribunal accepts the applicant is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality.
The Tribunal is prepared to accept the applicant’s evidence, given at the hearing, that he was born in Sibu, a town in Sarawak, about half an hour away from the town centre. The Tribunal is prepared to accept that, prior to leaving Malaysia, he was living in Bintulu with his parents and that his family rents a farmhouse to live in. The Tribunal is prepared to accept the applicant’s evidence that he left school at [age] years of age and then worked with his father for over ten years, undertaking [specified work], and that he has worked in what he described as ‘the agricultural industry’ since arriving in Australia.
The Tribunal did not accept the applicant’s evidence, given at the hearing, about his claimed reasons for leaving Malaysia. In reaching this finding, the Tribunal had regard to the delay in claiming protection and the inconsistencies in the applicant’s accounts as to his reasons for claiming protection.
Firstly, the applicant raised for the first time at hearing that his mother had borrowed money and he needed to work to repay her debts. The applicant claimed that his mother had borrowed [Amount 1] ringgit from a loan shark in 2016 after first borrowing [Amount 2] ringgit from a bank using his name, when he was [age range] years of age. He claimed that his mother enjoyed gambling and that this was the reason for her taking out the loans. The applicant claimed that he was ‘there’ when his mother borrowed the money but later stated to the Tribunal he was not with his mother when the money was borrowed. He claimed that they were ‘always disturbed by the debtor’ who would be violent and bully his sisters. They slammed his mother’s face and ‘occasionally threw a fire bomb’, which was a bottle filled with gas that was lit and thrown at the house. The applicant claimed his mother had gone to the police but the police came once and then ‘probably after a little while they left’.
The applicant’s failure to raise these claims at the earliest opportunity cause doubts for the Tribunal about his credibility. The Tribunal asked the applicant during the hearing why information about his mother’s loans and contact with a loan shark was not included in his written reasons for seeking protection and he stated the information was not provided by him; that a man had told him he could apply for refugee status and the applicant ‘let him do it’. The Tribunal observed during the hearing that it was having difficulty accepting that, if the applicant’s family was subject to arson and assault, this would not have been included in his reasons for seeking protection. The applicant stated again that the application had been completed by a friend; he had given some information to his friend but the friend didn’t put the information in completely. As to what he had told his friend, he said he ‘told him I was bullied’. The applicant’s failure to raise significant criminal activity against his family in his written protection application causes the Tribunal to have doubts about the credibility of the evidence he gave at hearing.
Further, the Tribunal discussed with the applicant during the hearing what evidence he could provide of the debts his mother owes, particularly with respect to the bank loan he claims was taken out in his name. The applicant stated that his sister occasionally sends him things to read and sends him receipts for amounts she has paid the bank; he agreed he could provide these to the Tribunal after the hearing. Following the hearing, the Tribunal received from the applicant a table purporting to outline credits paid on a regular basis between 2016 and 2020. The document did not appear to have been created by a formal agency, but rather appeared to be a table setting out a debit of [Amount 1], described as ‘loan from [Mr A]’ and repayments made towards this amount. No interest was added to the loan between 2016 and 2020, which is usual practice for loan arrangements with ah long,[1] and is the reason ah long are prepared to loan money to borrowers. No bank statements were provided reflecting the loan the applicant claims was taken out through a bank in his name. The lack of interest added to the claimed loan shark repayments, in addition to the applicant’s failure to provide the documents he stated he was able to provide, confirming the bank loan repayments, adds further doubt for the Tribunal about the applicant’s claims.
[1] DFAT Country Information Report Malaysia, 13 December 2019, at 3.108.
Secondly, the Tribunal notes that the applicant arrived in Australia [in] August 2017 and did not claim protection until 25 May 2019. Following the hearing, the Tribunal wrote to the applicant under s.424A and noted that the delay in claiming protection raised doubts for the Tribunal that the applicant had left Malaysia for the reasons claimed. The applicant’s response to the s.424A letter was to provide, again, a copy of a table purporting to be a ‘loan from [Mr A]’. No written response was provided to the issues raised in the Tribunal’s correspondence. At the hearing the Tribunal had asked the applicant about the written protection application and he stated a friend had assisted him to complete the application and that when he arrived he didn’t know he could apply for refugee status. The Tribunal would expect the applicant to investigate options for remaining in Australia at his earliest opportunity if the claims he raised at hearing were correct. The evidence given by the applicant on this point did not alleviate the Tribunal’s concerns about the applicant’s credibility about his claimed reasons for having left Malaysia.
For the reasons set out above, the Tribunal does not accept the applicant’s mother took out a bank loan in his name. The Tribunal does not accept the applicant’s mother borrowed money from a loan shark in 2016, that a loan shark bullied the applicant’s sisters, harassed or otherwise ‘disturbed’ his family, threw a fire bomb at his house or assaulted his mother. The Tribunal does not accept the applicant’s mother had contact with a loan shark or that this was the reason the applicant left Malaysia.
For the reasons stated above, the Tribunal is not satisfied that the applicant faces harm in Malaysia because his mother borrowed money from a loan shark or because a loan was taken out in his name by his mother. The Tribunal is not satisfied the applicant faces a real chance of serious harm in Malaysia from a loan shark, if he returns now or in the reasonably foreseeable future.
The applicant’s written claims related to clan discrimination. The Tribunal accepts the applicant is a Chinese Buddhist. Chinese Malaysians make up around 20 per cent of the population in Malaysia, are one of the largest overseas Chinese communities in the world and are Malaysia’s second largest ethnic group. Chinese Malaysians comprise a large proportion of the professional and educated class in Malaysia, are prominent in business and commerce and tend to be wealthier than other ethnic groups in Malaysia.[2]
[2] DFAT Country Information Report Malaysia, 13 December 2019, at 3.8.
There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians. They freely participate in political life and are eligible to access government-provided national primary or high school education, although generally choose to attend Chinese primary schools that teach in Mandarin. While there are relatively few Chinese Malaysians in the civil service, the Malay language can be a barrier but does not preclude them serving. They are well represented in the private sector and many small and medium enterprises and large corporations are Chinese Malaysian. Chinese Malaysians report discrimination against the community in the business sector, unequal access to some industries, raiding of halal businesses by JAKIM, difficulties obtaining and maintaining a business licence and that Inland Revenue Board raids of businesses leading to fines are common.[3]
[3] DFAT Country Information Report Malaysia, 13 December 2019, at 3.9 – 3.11.
DFAT assesses that Chinese Malaysians experience low levels of official discrimination where attempting to gain entry into the state tertiary system or the civil service, including when seeking promotion opportunities or when opening or operating a Chinese Malaysian owned business in the private sector.[4]
[4] DFAT Country Information Report Malaysia, 13 December 2019, at 3.14.
The above information was summarised and discussed with the applicant during the Tribunal hearing and the Tribunal observed that it couldn’t see from this information that the applicant would face serious harm in Malaysia because of his race. The applicant stated in response that some Chinese Malaysians like him are poor and have to work hard.
The Tribunal finds that, if he returns to Malaysia, the applicant would return to live in Bintulu, Sarawak, where his family reside. The applicant did not advance his claims at hearing to have left because of clan discrimination and the country information considered by the Tribunal, and discussed with the applicant during the hearing, indicates that Chinese Malaysians are well represented in most areas of Malaysian society. The Tribunal is not satisfied that any low level discrimination that the applicant may face upon return to Malaysia rises to the level of serious harm, having regard to the instances of serious harm set out in s.5J(5). The Tribunal is not satisfied the applicant faces a real chance of serious harm, if he returns to Malaysia now or in the reasonably foreseeable future, because of his ethnicity.
The applicant also raised claims in his written application about Malaysia’s economy and his financial situation.
Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy which has transformed since independence in 1957 to a leading producer of electronic parts, electrical products, oil, natural gas and a range of manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil and is ASEAN’s largest energy exporter. Income from oil and gas provides the government its largest single revenue source. Malaysia’s economic performance over several decades has led to a significant reduction in poverty, from over 50 per cent of households in the 1960s living below the national poverty line to less than one per cent today. Inequalities remain, though for indigenous people and for the poorest 40 per cent of the population, largely consisting of bumiputera. Poverty rates are also higher in rural areas, particularly in Kelantan, Kedah, Sabah and Sarawak. Malaysia is ranked by the UNDP’s Human Development Index to be 57^th out of 189 countries and is in the ‘high human development’ category.[5]
[5] DFAT Country Information Report Malaysia, 13 December 2019, at 2.9 – 2.10.
In October 2019, then-Prime Minister Mohamad announced the launch of ‘Shared Prosperity Vision 2030’, a plan to provide a decent standard of living for all Malaysians, to narrow the wealth gap and to narrow the urban-rural divide by 2030.[6] In July 2020 the current government announced its intention to relaunch the vision during 2020, with improved policies to achieve the vision.[7] In September 2020, the government announced it would be setting up a Shared Prosperity Action Council to act as a monitoring mechanism to ensure the objectives in the vision are achieved.[8]
[6] DFAT Country Information Report Malaysia, 13 December 2019, at 2.11.
[7] New Straits Times, ‘Govt to relaunch Shared Prosperity Vision 2030’, Bernama 19 July 2020 at
[8] The Edge Markets, ‘’Shared Prosperity Action Council to monitor WKB 2030, says Muyhiddin’, Bernama 29 September 2020 at

The Malaysian Department of Statistics reported an overall unemployment rate of 3.3 per cent in February 2019 and a labour force participation rate of 68.6 per cent in June 2019. The average unemployment rate for Chinese Malaysians in November 2018 was 2.4 per cent. In 2018, 28.6 per cent of the labour force had tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent had primary level education and 2.7 per cent had no formal education.[9] In 2018, men had a labour force participation rate of 80.6 per cent, compared to 54.7 per cent for females.[10]
[9] DFAT Country Information Report Malaysia, 13 December 2019, at 2.12.
[10] DFAT Country Information Report Malaysia, 13 December 2019, at 3.119.
The above information was discussed with the applicant during the Tribunal hearing. The applicant stated in response to this information that he knows Malaysia’s economy won’t suffer a lot but he has low education and low income and has to deal with loan sharks and doesn’t want to go back to Malaysia.
The Tribunal finds that the applicant was previously employed in Malaysia and that he has found employment while living in Australia. Malaysia is described as an upper middle income economy with a low rate of poverty and plans by the government to further improve the living standard for all Malaysians. The Tribunal accepts that the applicant would return to Sarawak, which is described as having a higher rate of poverty, however, based on the applicant’s previous employment in Malaysia and on his family’s ability to rent a farmhouse long term, the Tribunal is not satisfied the applicant would face serious harm amounting to significant economic hardship that threatens his capacity to subsist, a denial of access to basic services that would threaten his capacity to subsist or a denial of the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. The Tribunal is not satisfied the applicant faces a real chance of serious harm, if he returns to Malaysia now or in the reasonably foreseeable future, because of Malaysia’s economy, because he would be jobless, because his income and expenses cannot be balanced, because he would be unable to survive, because he would be unable to support his family, or because of his low education or low income.
The Tribunal has considered the cumulative claims of the applicant; however, is not satisfied the applicant faces a real chance of persecution for any reason, if he returns to Malaysia now or in the reasonably foreseeable future.
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). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. For the reasons stated above, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm if he is removed from Australia to Malaysia.
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.
Tamara Hamilton-Noy
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.
…

[2021] AATA 1355

19 March 2021

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Appeal