1935178 (Refugee)
[2024] ARTA 775
•3 December 2024
1935178 (Refugee) [2024] ARTA 775 (3 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1935178
Tribunal:General Member B Goulding
Date:03 December 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 03 December 2024 at 2:23pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity and religion – Chinese Buddhist – security and terrorism – undetailed claims and no documentary evidence – application completed by another person without applicant’s knowledge of contents – low-level discrimination not significant harm – sexuality – homosexual woman – attacked by brother – brief, unclear and inconsistent claims and evidence – delay in applying for protection – voluntary extended return and stay with family – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4)(b), (5), 36(2)(a), (aa), (2A), 65, 367A, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2CASE
MIAC v SZQRB [2013] FCAFC 33Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 December 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 23 August 2019. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 4 October 2024 and 18 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], also known as [Ms A – Alias].
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (ART). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the ART. The Transitional Act gives the ART the authority to continue and finalise any aspect of the review not already completed by the AAT.
Following this, references in these reasons to ‘the Tribunal’ refers to the AAT prior to 14 October 2024 as well as the ART from that date.
This decision and statement of reasons is made by the Tribunal.
BACKGROUND AND OVERVIEW OF CLAIMS
The applicant’s personal background
The applicant is a [Age]-year-old female from Selangor, Malaysia. She is ethnically Chinese and Buddhist.
She travelled to Australia on an apparently genuine Malaysian passport. A copy of the biodata page of the applicant’s passport is contained in the Departmental file. She has at all times stated that she is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds she is a Malaysian citizen and has assessed her claims against Malaysia as the country of nationality and the receiving country.
At hearing, the applicant gave evidence that her parents have passed away and she has [siblings], two of whom reside in Australia. The applicant currently lives with [a sister] and her sister’s children.
The applicant completed middle school in Malaysia and then worked as [an occupation 1] for about 7 years. The applicant also worked as [an occupation 2]. Since arriving in Australia, the applicant has worked as [an occupation 1].
The applicant’s migration history
Department records indicate that the applicant arrived in Australia [in] June 2013 as the holder of an Electronic Travel Authority (subclass 601). She then departed Australia [in] August 2013 before returning again [in] August 2013 on the same visa. The applicant then departed Australia again [in] September 2013.
[In] September 2017, the applicant returned to Australia as the holder of an Electronic Travel Authority (subclass 601).
On 2 December 2017, the applicant was granted a Bridging Visa A. Then, on 1 February 2018, she was granted a Student Visa (subclass 500). The Student Visa ceased on 13 September 2019.
On 23 August 2019, the applicant lodged an application for a protection visa
Consideration of application by the Department
In summary, in her protection visa application lodged with the Department, the applicant made the following claims:
a.Malaysia is dominated by Muslim people and they have a mindset that Muslims are the best and other religions are not good. They believe their religion is supreme
b.She has experienced unfair treatment.
c.Muslims believe they are the most faithful to god and others should behave like them. They disagree with churches and do not allow us to praise our god.
d.The food we eat and the clothes we wear are wrong to them.
e.Friends have told her that Malaysia is a Muslim country and she does not have freedom.
f.Terrorists within the Muslim community will attack her and people of other religions because they hate Chinese people.
g.The Muslim population think the whole of Malaysia should be Muslim
No further material was provided by the applicant in support of her claims. The delegate refused the applicant’s protection visa application on 10 December 2019 on the basis that the applicant does not meet the criteria set out in s 5H(1) of the Act, and is therefore not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. In relation to the complementary protection criterion, the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk she will suffer significant harm as outlined in s 36(2)(aa) of the Act.
Consideration of application by the Tribunal
The applicant appealed the Department’s decision on 12 December 2019.
On 6 May 2024, the Tribunal wrote to the applicant and invited her to provide updated information with respect to her case, including further information about her claims for protection. On 12 May 2024, the applicant returned the pre-hearing information form and requested that her hearing be conducted by video. The applicant did not provide any information about her protection claims.
Following this, the applicant attended a video hearing on 4 October 2024 (the first hearing).
On 10 October 2024, the Tribunal wrote to the applicant inviting her to respond to or comment on information under s 424A of the Act (now repealed). The applicant responded to this letter on 23 October 2024 and in that response, the applicant invited the Tribunal to take evidence from [Ms A] (the witness). The concerns raised within the s 424A letter and the applicant’s response are considered below.
Upon receiving the request to take evidence from the witness, the Tribunal scheduled a second video hearing with the applicant on 18 November 2024 (the second hearing).
Following the second hearing, the applicant provided evidence that she currently takes blood pressure medication.
The applicant’s claims and evidence are considered in more detail below.
Evidence at hearing
As noted above, two hearings were held in relation to this matter: The first on 16 September 2024 and the second on 11 October 2024. Evidence taken at the hearings is outlined below.
First hearing
At the commencement of the first hearing, the applicant conceded that she did not know what claims were included in her protection visa application. Following this, the Tribunal provided the applicant with a summary of those claims. The applicant then confirmed that she had not provided those claims to the person who assisted her with the protection visa application.
The Tribunal then asked the applicant why she feared returning to Malaysia. The applicant responded that she feels slightly disappointed with Malaysia because of discrimination. The Tribunal then sought to clarify on what basis she had experienced discrimination and whether she was relying on the claims included in her application. The applicant confirmed that she wanted the Tribunal to consider those claims contained in her application. Additionally, during the hearing, the applicant raised a significant new claim regarding her sexuality.
The applicant’s evidence at hearing is outlined below.
Claims contained in the applicant’s protection visa application
The Tribunal asked the applicant several questions about the discrimination she had experienced, particularly due to her ethnicity and religion. The applicant’s responses to these questions were typically brief and lacked detail. Additionally, in response to some questions, the applicant did not provide a direct response.
For instance, when asked to describe discrimination that she had experienced, the applicant said that if she were to go out with friends, Muslims would be served first, and if she were to complain she would be verbally abused and be told to return to China. When questioned as to whether the applicant had experienced any other forms of discrimination, the applicant responded that she could not think of anything.
Following this, the Tribunal discussed with the applicant that Article 153(2) of the Malaysian Constitution accords a ‘special position’ for ‘the Malays and natives of any of the States of Sabah and Sarawak’ (commonly referred to as Bumiputera), which permits affirmative action policies.[1] The Tribunal then questioned the applicant as to whether she had experienced any official discrimination, to which the applicant replied that she had not. The Tribunal then sought to clarify whether the only discrimination the applicant had experienced was when she was queuing with friends, to which the applicant confirmed that was correct.
[1] Department of Foreign Affairs and Trade, Country Information Report Malaysia, (24 June 2024) (2024 DFAT Report), [3.2].
Again, the Tribunal put country information to the applicant and noted that the most recent report for Malaysia prepared by the Department of Foreign Affairs and Trade (DFAT) reported that ‘Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia’.[2] The applicant responded that there might also be corruption. When asked to explain this, the applicant indicated that Chinese Malaysians have to pay bribes to do business. When questioned about her direct experience of this, the applicant said in Malacca when she had bought cosmetics, she had to pay more. For instance, if the price was MYR1,000 (about AUD345)[3], she might have to pay an extra MYR200 to MYR300 (about AUD69 to AUD103)[4]. The applicant confirmed that she had only experienced this in relation to the purchase of cosmetics.
[2] 2024 DFAT Report, [3.11].
[3] Xe Currency Converter, (Website, 29 November 2024) < Ibid.
Following this, the applicant was questioned about any religious discrimination she had experienced. Contrary to her protection visa application which lists her religion as Christian, the applicant confirmed that she is Buddhist and she has never been a Christian. When asked to describe the discrimination she has experienced, the applicant said that she eats pork, and it is an issue that Muslims are sensitive about and if she was out, Muslims might ask her to sit further away from them if she was eating pork. The applicant confirmed that she had not experienced any other discrimination on account of her religion.
Later in the hearing, the Tribunal questioned the applicant about the claim in the application, which she now relied upon, relating to terrorism in Malaysia. In particular, the Tribunal put to the applicant that DFAT reports that ‘Malaysia’s security situation is generally stable’, however, terrorism remains a threat.[5] In response, the applicant said that there are possibilities.
Claim regarding the applicant’s sexuality
[5] 2024 DFAT Report, [2.28]-[2.29].
In addition to the above, the Tribunal questioned the applicant about what harm might come to her if she were to return to Malaysia. The applicant responded that she probably won’t be accepted but seemingly struggled to elaborate on why. The Tribunal then offered the applicant a break so she could think about whether there were any other claims that she wanted to discuss.
Following the break, the applicant claimed that she would be verbally abused by her family because she is attracted to women. The Tribunal then proceeded to ask the applicant several questions about her claims to be same-sex attracted. Again, the applicant’s evidence tended to be very brief and at times unclear.
For instance, the applicant claimed that she realised that she was attracted to women at about the age of 16 when she was in a relationship with a male and she realised that she was not attracted to males. When asked about the name of her boyfriend, the applicant initially said that she could not remember because it was a long time ago. She then said she could only recall his nickname, which was ‘[Mr B]’. The applicant and [Mr B] were not together for long before they broke up.
The applicant then claimed that two or three years later, she had a relationship with a woman, [Ms C]. This would have made the applicant about 19 when the relationship with [Ms C] commenced. However, throughout the hearings, the applicant variously said that the relationship with [Ms C] commenced at the age of 23, 24, 25 or 26. At the first hearing, when asked about this discrepancy, the applicant responded that she cannot recall clearly but believes the gap between her relationships with [Mr B] and [Ms C] was about 8 years.
When questioned as to how she met [Ms C], the applicant said they met on a website, and then said that website was Skype (a communication application). When asked how they met on Skype, the applicant said she could not recall. When asked how she ended up in a relationship with [Ms C] by using Skype, the applicant responded that it was because [Ms C] was also attracted to females. When asked to describe how they initially made a connection, the applicant responded that they had a good time chatting. The Tribunal then asked how they started chatting, and the applicant responded that she asked [Ms C] whether she liked males or females. The applicant gave evidence that she asked this question because she saw [Ms C]’s photo and was attracted to her and the way in which she was dressed.
Following this, the Tribunal questioned the applicant as to whether she was afraid of what might happen when asking if [Ms C] was attracted to women, particularly given the situation for gay and lesbian people in Malaysia. The applicant responded that she was an adult, so she did not have fear, and the only fear she had was that people might not be accepting of gay and lesbian people. When questioned as to whether she was aware of the laws relating to gay and lesbian people in Malaysia,[6] the applicant responded that she knows that these relationships are not accepted and there are even more unlikely to be accepted if they progress to marriage.
[6] See, for example, 2024 DFAT Report, [3.126]-[3.127].
When questioned further about her fear on account of her claimed sexuality, the applicant said she was not afraid of asking [Ms C] if she liked women but she did not say that she was not afraid of telling the government. However, when the Tribunal asked whether she feared exposing herself by asking a person online whether they are same-sex attracted, the applicant responded that she did not think of it and she had talked to [Ms C] for a while before she asked this question.
The applicant gave evidence that she was in a relationship with [Ms C] for more than a year but less than two years, and they only met in-person after about 7 or 8 months. They eventually broke up because [Ms C] fell in love with another woman.
When asked about their in-person meetings, the applicant said that on their first meeting they went to the Petronas Towers. Whilst they did not act like a couple in public on that first occasion, the applicant gave evidence that on other meetings they would hold hands and cuddle. When asked what other people thought of this, the applicant responded that people around them thought they were sisters.
The applicant’s next claimed relationship with a woman occurred in about 2020 or 2021 whilst she was in Australia. The applicant gave evidence that her second girlfriend’s name was [Ms D]. Their relationship only lasted for about three months because the applicant thought [Ms D] was lazy.
When asked about how they met, the applicant said she met [Ms D] on a website but could not remember which website. When asked if it was a dating website, the applicant confirmed it was, but she had deleted it because she was worried about other things such as rent and food.
With respect to evidence of her past relationships, the applicant claimed that she had deleted any photos of her partners because she was sad, and she is the type of person who acts in an extreme way.
When questioned about the prospect of future relationships and how she might meet another partner, the applicant said that she would wait a while to start a relationship because her financial situation is not good.
The Tribunal then questioned the applicant about her fear of returning home, to which the applicant responded that she fears her oldest brother because he previously found out that she was in a relationship with [Ms C] and, upon finding out, he threw things at the applicant. The applicant claimed that her brother discovered the relationship when she brought [Ms C] home. The applicant said she was not seriously injured in the incident and this was the only occasion on which she was harmed.
The applicant then gave evidence that only one person, the witness, is aware that she has previously been in a relationship with a woman. The Tribunal then offered to take evidence from that friend, however, the applicant responded that the Tribunal would not be able to because she has health issues and the applicant would need to organise it first.
The Tribunal questioned the applicant as to whether she had any other fears of returning to Malaysia. The applicant responded that she is a bit afraid but when asked to elaborate, the applicant only added that she has some issues with her brother.
However, the applicant then claimed that her other family members are not aware that she has previously been in relationships with women, because she told her brother that she would not do it again.
Following a further break in the hearing, the Tribunal put to the applicant that it was concerned that the applicant had raised new claims that had not been previously raised in her protection visa application. The Tribunal explained to the applicant that it was required to draw an adverse inference in relation to those new claims unless the applicant was able to provide a reasonable explanation as to why the claim was not made earlier. In response, the applicant said she did not know whether she should include this claim in her application, and she also did not ask the person who assisted her in preparing the application about the claim.
The Tribunal then put to the applicant that across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour.[7] Given those laws, the Tribunal asked the applicant why she had only expressed a fear in relation to her brother. The applicant responded that because she is in Australia, she does not have concerns about those laws.
[7] 2024 DFAT Report, [3.127].
The Tribunal then reminded the applicant that it must consider what might happen to her if she returns to Malaysia. The applicant responded that people will harm her, but they might not know she is a lesbian, however, there is no chance she could get married. She also said she is worried that people might look down on her and might be disdainful of her.
Delay in applying for protection
Prior to the conclusion of the first hearing, the Tribunal discussed with the applicant that it had concerns in relation to the applicant’s delay in applying for protection, and that this delay may cause the Tribunal to have concerns about the credibility of the applicant’s claim. The applicant requested further time to respond to the adverse information.
As noted above, the Tribunal wrote to the applicant on 10 October 2024 under s 424A of the Act and invited the applicant to respond to the adverse information regarding her delay in applying for protection. The applicant was also invited to provide any further evidence in support which she may wish to rely upon, including any witness statements. The applicant did not respond to the adverse information; however, she did provide contact details for the witness.
Second hearing
Upon receipt of the applicant’s request that the Tribunal take evidence from the witness, the Tribunal scheduled a second hearing on 18 November 2024.
A summary of the evidence taken at the second hearing is outlined below.
Evidence from the applicant
Given the applicant’s uncertain evidence at the first hearing regarding the timeline of events, the Tribunal sought to clarify when the applicant claimed to have met [Ms C], and how long they were together. The applicant repeated that they met on Skype when the applicant was 25. However, on this occasion, the applicant said that their relationship lasted for less than a year. The Tribunal put to the applicant that she had previously given evidence that the relationship had been for more than a year but less than two years. The applicant responded that she could not remember but then clarified that they broke up for a period before getting back together.
Following this, the Tribunal raised with the applicant that it had several concerns with the applicant’s evidence as presented at the first hearing, particularly in relation to the details of her claimed relationships. The Tribunal then summarised the applicant’s previous evidence regarding her various ages at which she claimed to have commenced a relationship with [Ms C], and noted that whilst the Tribunal does not expect the applicant to remember exact dates, the applicant had provided a variety of years in which she claimed the relationship had commenced over a six year period. The Tribunal then questioned the applicant if there was a reason why she was so unsure about the commencement date of that relationship. The applicant responded that she does not remember, and she can only remember when she was 16 (the age at which she commenced her relationship with [Mr B]). The applicant then repeated that she started her relationship with [Ms C] at the age of 24 or 25.
The Tribunal asked the applicant as to whether she was aware of the legal situation for same-sex relationships in Malaysia. The applicant confirmed that she knew it was illegal. The Tribunal then questioned whether the applicant would have been fearful given this situation, and the applicant responded that she was kind of worried, and she was ‘half and half’ scared. When asked to clarify this response, the applicant said she was concerned that people might abuse her if she had gone out with [Ms C], but she was only half concerned because she wanted to be with [Ms C].
The Tribunal then put to the applicant that it was concerned that the applicant had not retained any evidence of her most recent relationship with [Ms D] given that she was now relying on her sexuality as the basis of her protection claim. In response, the applicant said that she did not know that it was required.
Evidence from the witness
Following the above, the Tribunal took evidence from the witness. The witness confirmed that she was familiar with the applicant’s claim for protection and, in short, gave the following evidence:
a.The applicant had experienced family violence from her brother because she is a lesbian and took home her same-sex partner.
b.The violence was so bad that the applicant was almost sent to hospital. She was kicked and punched, and had injuries to her head, eyes and all over her body.
c.The witness could not recall the name of the applicant’s girlfriend and only remembered her as ‘[Ms E]’; however, she confirmed that they had met one or two times. The applicant and [Ms E] were together for about a year but broke up because of the family violence that the applicant was subjected to.
d.The Tribunal questioned the applicant as to whether the applicant had any other female partners and she responded that after finishing secondary school, she has barely spent any time with the applicant, so she is not sure. The witness said that after the family violence incident involving the applicant and her brother, the witness moved to a different area for work and they stopped contacting each other. The witness confirmed that she moved at about the age of 20.
e.The Tribunal then questioned the witness as to why she was called to give evidence if she is rarely in contact with the applicant. The witness responded that she was the person who took the applicant to hospital following the family violence incident, and is the only person who knew what happened to the applicant.
Following this, the Tribunal questioned the witness as to whether she was certain of the timing of the family violence incident. The witness confirmed that if her memory is correct, it would have been about 2002 or 2003.
The Tribunal then asked the applicant why there was such a discrepancy in the evidence given regarding the commencement date of the relationship. The applicant responded that that when she was first asked, she was not sure so she just gave an approximate. The Tribunal then put to the applicant that she had been asked about her age multiple times across two hearings, to which the applicant responded that she did not try to check the information.
The witness concluded her evidence by saying that the applicant’s brother was emotionally unstable and that the applicant would be at risk of further family violence.
Further evidence from the applicant
The Tribunal put to the applicant that it was concerned about the inconsistencies between the evidence given by the witness and the applicant, particularly with respect to the commencement date of her relationship with [Ms C]. The applicant responded that she doesn’t remember, and she takes medication for high blood pressure and it affects her memory. The Tribunal questioned the applicant whether she had evidence of the effect of the medication on her memory, and the applicant responded that it was a case of ‘he said, she said’, and she saw it on a video.
The Tribunal then discussed again the applicant’s delay in applying for protection and, in effect, provided a summary of the information in the s 424 letter that had previously been sent to the applicant, including providing a summary of the applicant’s migration history as outlined above. It was put to the applicant that on her departure from Australia [in] September 2013, departmental records indicate that the applicant departed on [an Airline] Flight [Code] from Melbourne to Kuala Lumpur.[8] The applicant confirmed that between the 2013 and her return to Australia [in] September 2017, the applicant lived with her family and she rarely saw her brother during that period, however, if he did come home, the applicant would go and stay with friends.
[8] '[Code] Flight Status', Trip.com (Webpage, 2024) < />; ‘[Airline, Code]’, FlightAware, (Webpage, 2024) <>
The Tribunal then put to the applicant, that her departure from Australia, return to Malaysia, and overall delay in applying for protection appears to be significant, given she now claims:
a.At about the age of 25, which would have been in about [Year], she commenced a relationship with a woman that lasted for more than one year but less than two years;
b.At some point during that period the applicant’s brother physically harmed her;
c.She then travelled to Australia [in] June 2013 before departing and returning to Malaysia for a period of four years;
d.Upon returning to Australia in September 2017, the applicant waited nearly two years before applying for protection – six years after her first arrival in Australia and about ten years after the claimed family violence incident involving her brother.
The Tribunal then put to the applicant that this delay in applying for protection raises concerns about the immediacy and gravity of the applicant’s claimed fears of returning to Malaysia – particularly given she returned to Malaysia for four years. In response the applicant said she did not have earlier knowledge of the protection visa and that she heard about it from a colleague, and she knew of other people who had applied for it.
The Tribunal again questioned the applicant as to what harm she might face if she were to return to Malaysia and commence a same-sex relationship. The applicant responded that she rarely thinks about it because she has to earn money. The Tribunal then questioned the applicant how other members of the gay and lesbian community are treated in Malaysia, to which the applicant responded that she does not know as she didn’t ask. The Tribunal then put to the applicant that it would expect her to have some personal experience of this given she claims to have previously been in a same-sex relationship in Malaysia. The applicant responded that she probably won’t get married.
When asked if she would experience any other harm, the applicant responded that she would be subjected to racism and that she could be denied educational opportunities, although she had not personally experienced this.
The Tribunal put to the applicant again that it was concerned that the applicant had not disclosed the claim regarding her sexuality earlier and had only raised it part way through the first hearing. In response, the applicant said she did not think she needed have to provide evidence about the claim and that her application was to do with racism.
At about this point, the interpreter observed that the applicant’s responses were not making sense, and suggested that the applicant might need a break. The Tribunal queried this with the applicant, and offered a break, however, the applicant confirmed that she was fine to continue.
In closing, the Tribunal put to the applicant again that it had concerns about the applicant’s claims including that her evidence with respect to her past relationships was quite vague, and there are significant differences in dates as to when particular events occurred. Following this, the applicant was again invited to provide any further evidence about her relationships that she might have. The applicant responded that she did not have any further evidence.
CRITERIA FOR PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant 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) of the Act 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.[9] 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.[10]
[9]Migration Act1958 (Cth), s 5H(1)(a).
[10]Migration Act1958 (Cth), s 5H(1)(b).
Under the Act, 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]
[11]Migration Act 1958 (Cth), s 5J(1).
[12]Migration Act 1958 (Cth), s 5J(2)–s 5J(6) and s 5K–s 5LA.
If a person is found not to meet the refugee criterion,[13] s 36(2)(aa) of the Act sets out that a person 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 (‘the complementary protection criterion’).
[13]Migration Act 1958 (Cth), s 36(2)(a).
The Act sets out that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[14]
[14] Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are defined in s 5(1) of the Migration Act 1958 (Cth).
The Act also provides certain circumstances where it is taken not to be a real risk that a person will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[15]
[15]Migration Act 1958 (Cth), s 36(2B).
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims contained in the applicant’s protection visa application
The Tribunal accepts that the claims contained in the applicant’s protection visa application were prepared by a third party, and do not necessarily reflect the applicant’s instructions at the time that the application was prepared. However, at hearing, the applicant adopted those claims.
The Tribunal has considered those claims below.
Racial and religious discrimination
Despite the Tribunal’s questioning, the applicant’s evidence with respect to her fear of harm on account of her ethnicity and religion was brief and lacking in detail.
In view of the country information cited above, the Tribunal accepts that Malaysian nationals of Chinese ethnicity are subjected to a level of discrimination throughout Malaysia as a result of preferential government treatment for ethnic Malays and indigenous groups. Additionally, the Tribunal accepts that there may be a level of discrimination on account of religion in Malaysia, as Malaysia’s Constitution establishes that ‘Islam is the religion of the [Malaysian] Federation’.[16]
[16] 2024 DFAT Report, [3.37].
However, the applicant provided very few specific examples of discrimination that she has been subjected to. For instance, with respect to ethnic discrimination, the applicant claimed that if she were queuing, ethnic Malays would be prioritised over her and if she were to complain, she would be subjected to verbal abuse. The applicant also claimed that ethnic Chinese Malaysians are subjected to corrupt practices, however, the only example the applicant could provide of this is when she has purchased cosmetics. For religious discrimination, she claimed that if she was eating pork, she might have to move away from a Muslim.
The fact that a person experiences some level of discrimination is not necessarily enough to establish persecution. Under s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person. Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test, listing the following as instances of ‘serious harm’:
(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.
Whilst the Tribunal does accept that the applicant may experience some discrimination due to her ethnicity or religion, given the applicant’s evidence of the discrimination she has been subjected to in the past, including the verbal abuse described by the applicant, the Tribunal does not accept there to be a real chance that any discrimination for reasons of her Chinese ethnicity or Buddhist religion will rise to the level of serious harm in the particular circumstances of the applicant.
The list of instances of serious harm in s 5J(5) is not exhaustive; however, the Tribunal does not accept there to be a real chance that the applicant will be subjected to ‘serious harm’ for the purposes of s 5J(5) for reasons of her Chinese ethnicity or Buddhist religion if she returns to Malaysia now or in the foreseeable future. It follows that the Tribunal does not accept that the applicant meets the criterion set out in s 5J(4)(b).
In considering whether the harm that the applicant fears would amount to significant harm in the complementary protection criterion under s 36(2)(aa), the Tribunal has had regard to the definition of ‘significant harm’ as exclusively defined in s 36(2A), as follows:
(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.
As noted above, the Tribunal accepts that Malaysian nationals of Chinese ethnicity are subjected to a level of discrimination as a result of preferential government treatment for ethnic Malays. Similarly, the Tribunal accepts that Buddhists may face a level of discrimination given the important position of Islam within Malaysia. However, the applicant does not claim, nor does the country information suggest, that the harm described by her in Malaysia could amount to significant harm for the purposes of s 36(2A) of the Act. In this regard, the applicant has not suggested that any person or group will seek to arbitrarily deprive her of her life or subject her to torture, nor that the death penalty would be carried out on her as a consequence of that discrimination. Additionally, the Tribunal does not accept that the harm described by the applicant, including any verbal abuse, would rise to the level of cruel or inhuman treatment or punishment or degrading treatment or punishment as those terms are defined in the Act.
For these reasons, the Tribunal does not accept there to be substantial grounds for believing that there is a real risk the applicant will be subjected to significant harm as that term is exclusively defined in s 36(2A) as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
Claim relating to terrorism
The Tribunal accepts that the applicant may have a subjective fear regarding terrorism and religious extremism in Malaysia. The Tribunal also accepts that there is a possibility that a terrorist threat may occur in the future in Malaysia. However, having had regard to the country information referred to above and the applicant’s evidence, the Tribunal finds that there is only a remote chance, and therefore not a real chance, that the applicant would be targeted by terrorists or religious extremists, or otherwise affected by insecurity, if she were to return to Malaysia.
As the threshold for ‘real risk’ in s 36(2)(aa) of the Act is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a),[17] the Tribunal does not accept there to be a real risk the applicant would be harmed by terrorists or religious extremists, or otherwise affected by insecurity, as a necessary and foreseeable consequence of returning to Malaysia.
Claim relating to the applicant’s sexuality
[17] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
100. In relation to the applicant’s claim to be a lesbian or a member of the LGBTQIA+ community, the Tribunal has considered the applicant’s oral evidence, supporting materials, the oral evidence of the witness, and the applicant’s response to the s 424A letter.
101. The applicant’s evidence is considered below.
Credibility of the applicant’s claims
102. In assessing the applicant’s claims and credibility with respect to her sexuality, the Tribunal is mindful of the difficulties that asylum seekers often face, and the benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of their claims. The Tribunal has also had regard to the Department’s Gender and Sexual Orientation policy guidelines, particularly with respect to difficulties that LGBTQIA+ may have when discussing their sexuality. [18] The Tribunal is also cognisant of the common belief among academics and medical professionals regarding the variable nature of memory and the impact of trauma on memory processing, and that the memory is not a genuine reconstruction from autobiographical memory.[19]
[18] Department of Home Affairs, Gender and Sexual Orientation (15 August 2021) [3.2]
[19] For example, J Cohen, ‘Errors of Recall and Credibility: Can Omissions and Discrepancies in Successive Statements Reasonably be Said to Undermine Credibility of Testimony?’ (2001), The Medico-Legal Society, 69(Pt 1): 25-34; and Henry Otgaar et al, ‘What Drives False Memories in Psychopathology? A Case for Associative Activation’ (2017), Clinical Psychological Science, 5(6): 1048–1069.
103. Notwithstanding this, the Tribunal has serious concerns in relation to the applicant’s claims and evidence, and the Tribunal is not required to accept uncritically any, or all, of the allegations made by an applicant.[20]
[20] See MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
104. Specific concerns are addressed below.
Delay in applying for protection and return to Malaysia
105. As noted above, the Tribunal discussed with the applicant her delay in applying for protection, including that she returned to Malaysia for a period of about four years after her initial entry into Australia. The applicant indicated that she was unaware that she could apply for protection when she first arrived in Australia, and she only found out about it later from a colleague.
106. The Tribunal has had regard to the applicant’s explanation and remains concerned as it would expect that a person who claims to have fled to Australia because she feared family violence from her brother on account of her sexuality would seek to understand their protection options at an earlier date.
107. Moreover, the Tribunal is concerned that the applicant would depart Australia, return to Malaysia and continue to reside with her family for about 4 years given she has claimed to fear harm from her family, and specifically harm from her brother, particularly given her brother would occasionally return to the family home.
108. Given the circumstances outlined above, together with the Tribunal’s other concerns addressed herein, the Tribunal places significant adverse weight on the applicant’s delay in lodging a protection visa application and her return to Malaysia for 4 years.
Delay in raising claims regarding her sexuality
109. As outlined above, the applicant’s claim regarding her sexuality was raised for the first time at her first hearing, and not until part way through that hearing.
110. At the time of the applicant’s first hearing, s 423A of the Act provided for circumstances in which the Tribunal is required to draw an adverse inference unfavourable to the credibility of claims or evidence that were not first raised or presented before the primary decision was made if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence was not presented before the primary decision was made. That section was repealed and has now been replaced by a substantively identical section at s 367A of the Act.[21]
[21] Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), Schedule 2.
111. The applicant’s evidence at the second hearing with regard to her delay in raising the claim was, in effect, that she did not raise the claim with the person who prepared her application and she was not aware that she should raise the claim from the outset at her hearing.
112. Department policy sets out that a delay in making a claim related to sexual orientation may occur if ‘the applicant wants to avoid making sensitive claims until they have to do so’ and many applicants ‘may not have talked to anyone about their sexual orientation or gender identity previously’.[22]
[22] Department of Home Affairs, Gender and Sexual Orientation (15 August 2021) [3.3.5]
113. Whilst the Tribunal has serious concerns about the credibility of the applicant’s claim, it is accepted that she has claimed to be a lesbian and on her evidence, very few people were aware of this. In such circumstances, it is accepted that if the applicant were genuinely a lesbian, then she may have delayed raising details of that claim until she had to.
114. Consequently, no adverse inference is drawn from the applicant’s delay in raising the claim regarding her sexuality.
The applicant’s evidence regarding her sexuality
115. The Tribunal is mindful that the process of self-realisation or ‘coming out’ can be difficult for some applicants to discuss as it is often a deeply personal process, particularly where an individual has experienced trauma in the past or where there is a fear of harm as a result of disclosure. However, in this case, the Tribunal does not accept that the applicant’s reluctance to provide a detailed account can be attributed to these factors.
116. The applicant’s oral evidence at hearing provided little detail about her claimed sexuality and past relationships. The information she did provide was often framed in broad, non-specific terms and lacked detail that one might expect from a person who claims to have lived experience of being in a same-sex relationship in Malaysia. For instance, the applicant was questioned about her own self-realisation and the formative stages of her relationships with [Ms D] and [Ms C]; however, the applicant only provided brief responses that provided little detail of those relationships and the applicant’s own fear of harm on account of those relationships.
117. The Tribunal is also concerned that the applicant had significant difficulty recalling even an approximate age at which she had her first same-sex relationship. After giving multiple ages at which the relationship commenced between about 19 and 26, the applicant settled on an age in her mid-20s. However, the evidence from the witness contradicted this and placed the applicant’s age closer to 20. When questioned about these differences, the applicant essentially claimed that she cannot remember the date, that she had not thought about it, and her blood pressure medication causes her to have memory issues.
118. Whilst the Tribunal accepts that the applicant is on blood pressure medication, and it is possible that memory loss is a potential side effect of that medication, the applicant has not provided any evidence of her claimed memory loss other than to say she has watched a video about it. Moreover, whilst the Tribunal accepts that the applicant may not recall the exact date that her relationship with [Ms C] commenced, it is not accepted that the applicant would not be able to narrow it down to a period of less than six years given the significance of that relationship and the consequential harm she claims to have been subjected to from her brother.
119. The Tribunal does not consider the applicant’s evidence to be consistent with that which could reasonably be expected from a person in the applicant’s claimed circumstances. Overall, the Tribunal finds that the applicant’s oral evidence relating to her claimed sexuality and relationships was lacking, and the Tribunal does not accept the applicant’s oral evidence to be a genuine recollection of her own past experiences.
The applicant’s evidence regarding the experience of the LGBTIQA+ community in Malaysia
120. The applicant’s evidence regarding the experience of the LGBTIQA+ community in Malaysia was vague, lacked detail and provided little insight into the applicant’s fear of harm on return to Malaysia.
121. For instance, at the second hearing, the applicant gave evidence that she does not know how other members of the gay and lesbian community are treated in Malaysia as she had not asked. When it was put to her that she might be familiar with this treatment from her own experience, the applicant identified an inability to marry in Malaysia and being looked ‘down on’, but could not think of other examples of discrimination or harm when questioned about this. Similarly, when discussing her fear of disclosing herself as being gay, the applicant indicated that she was only ‘half’ concerned that people might abuse her.
122. Given the applicant has claimed to have had a same-sex relationship in Malaysia for more than a year, the Tribunal does not accept that the applicant’s knowledge of the situation for the LGBTIQA+ community in Malaysia, nor her description of the treatment of members of the LGBTIQA+ community in Malaysia is consistent with what might be reasonably expected from a person in the applicant’s claimed circumstances. Consequently, the Tribunal does not accept that the applicant’s oral evidence in this regard reflects her own lived experience as someone who has been in a same-sex relationship in Malaysia.
Lack of documentary evidence
123. The applicant was invited to provide further supporting evidence of her claim, including photographic evidence or messages sent and received from her claimed partners.
124. The Tribunal accepts that a person in a same-sex relationship in a country where they may fear harm on that basis may not retain extensive evidence of their relationships. However, the applicant claims to have since had a brief relationship in Australia with [Ms D] but deleted any evidence of that relationship after the relationship ended because she acts in an ‘extreme’ way. The Tribunal is also mindful that in the applicant’s evidence, it was a relatively brief relationship, so documentary evidence would be limited. Nevertheless, the applicant has not been able to produce typical documentary evidence to support the claimed relationship, such as text messages or photos, despite an invitation from the Tribunal to do so.
125. Having had regard to the applicant’s evidence, including that her claimed relationship with [Ms D] occurred in Australia and that relationship was subsequently raised as a basis for her protection application, the Tribunal does not accept the applicant’s explanation regarding the lack of documentary evidence to be credible.
126. Consequently, given the other concerns outlined herein, the Tribunal places some limited adverse weight on the applicant’s explanation and her inability to provide documentary evidence of her relationship with [Ms D].
Evidence of the witness
127. The Tribunal acknowledges that the witness’s evidence does corroborate the applicant’s claim that she was in a relationship with a woman in Malaysia. However, the witness’s evidence was markedly different from that provided by the applicant, including in terms of the timeframes in which the events occurred, and the harm inflicted on the applicant. With respect to the harm inflicted on the applicant, the applicant said this was caused by her brother throwing objects and that she was ‘not seriously injured’; however, the witness claimed that the applicant’s injuries were so serious that she nearly required hospitalisation and it involved kicking and punching to the applicant’s head, eyes and body.
128. Moreover, the witness gave evidence that she only has limited contact with the applicant and could not give evidence with respect to any relationships the applicant may have had since ending her relationship with [Ms C].
129. Given the overall credibility findings outlined above and the inconsistencies between the evidence given by the applicant and witness, the Tribunal does not accept the evidence from the witness as being credible. Nor does the Tribunal accept that the witness took the applicant to hospital following the claimed abuse from the applicant’s brother.
Overall credibility assessment
130. When considered individually, the concerns outlined above may not be sufficient to support and adverse finding regarding the credibility of the applicant’s claims. However, when considered in their totality, the Tribunal does not accept the applicant’s evidence as credible as it relates to her claimed sexuality.
131. The Tribunal is not satisfied that the applicant’s evidence regarding her past relationships with [Ms C] and [Ms D], or her claimed sexual orientation, are a genuine recollection of the applicant’s own experience. In reaching this conclusion, the Tribunal has considered the sensitivities of the claim, cultural and interpreting factors, and the passage of time since the claimed events occurred. However, the Tribunal is not satisfied that these considerations are sufficient to overcome the concerns outlined above. Rather, the Tribunal finds that the applicant’s oral evidence lacked significant depth and insight, was at times inconsistent and was unconvincing.
132. The Tribunal has also considered the comments of the interpreter, that the applicant may have needed a break in the second hearing as her responses did not make sense. The Tribunal notes that the applicant was offered a break following these comments, and she declined. Moreover, the applicant’s evidence across both hearings was often inconsistent, unclear and occasionally not directly related to the question that had been asked. As such, the Tribunal finds that the applicant’s evidence and responses in the closing stages of the second hearing were consistent with her presentation across both hearings. Additionally, in assessing the applicant’s credibility, the Tribunal has had regard to her evidence across both hearings and with reference to the evidence provided by the witness, rather than just during a relatively isolated period at the end of the second hearing.
133. When the evidence of the applicant and the witness is considered in its totality, the Tribunal finds that the applicant’s claim to fear harm in Malaysia for reason of her past relationships with women or membership of the LGBTIQA+ community in Malaysia to not be credible.
Assessment of claim
134. Given the credibility findings above, the Tribunal does not accept that the applicant was in a same-sex relationship with [Ms D], [Ms C], or any other woman at any time. It follows that the Tribunal does not accept that the applicant was harmed by her brother for reason of her being in a same-sex relationship, or that she has experienced abuse or any other form of discrimination on account of being a lesbian. The Tribunal also does not accept that the applicant would seek to enter into a same-sex relationship on return to Malaysia.
135. Consequently, the Tribunal finds that the applicant does not face a real chance of serious harm from any person in Malaysia for reasons of her claimed sexuality, her membership of the LGBTIQA+ community or her claimed relationship with [Ms D] or [Ms C], now or in the reasonably foreseeable future.
136. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee definition.[23] For the reasons given above, the Tribunal has not accepted that the applicant’s claims reach the level of a real chance. It follows that the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm on the same basis.
[23] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
CONCLUSIONS
137. 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 evidence 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 any of the criteria in s 36(2).
DECISION
140. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 4 October 2024 and 18 November 2024
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.
…
0
4
0