2003268 (Refugee)

2003268 (Refugee) [2021] AATA 3029 (27 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2003268

COUNTRY OF REFERENCE: Malaysia
MEMBER:Lilly Mojsin
DATE:27 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 May 2021 at 11.50 am
CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – particular social group – victim of loan sharks – fear of kidnapping – fear of killing – police action against loan sharks – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 16 January 2017. The delegate refused to grant the visa on the basis that applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal differently constituted[1], found that it did not have jurisdiction. That decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.
[1] AAT 1707533
The applicant appeared before the Tribunal on 26 May 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant who had access to Teams video. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant consented to the hearing being held by Teams video.
The applicant was assisted by an interpreter. I am satisfied the applicant was given a fair opportunity to give evidence and present arguments. The applicant confirmed that he could hear and see and that he understood the interpreter. I was able to interact with the applicant and interpreter. All parties were able to maintain appropriate communication throughout the proceedings. I am satisfied that the hearing provided a real opportunity for the applicant to be heard.
CRITERIA FOR A PROTECTION VISA
See annexure A.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his PV the applicant states that he is [age] year of age and was born in [his home town in] Malaysia. He claimed that worked as a farmer in Malaysia.
The applicant claimed he left Malaysia to avoid a creditor and a loan shark to whom he owed an amount of RM [amount] [$[amount]] due to the loss of his property through a natural disaster. He agreed to repay RM [amount] of the loan every day and the loan shark would come to his house to collect this amount for the first 3 months. He was able to do this for the first 26 days, when the natural disaster flood occurred.
He feared the loan shark as he threatened him if he did not repay the loan by kidnapping him, physical harassment or even by death. The loan amount was now RM [amount] with the interest. The loan shark poisoned his pets and splashed red paint all over his house. The applicant claimed that he was badly beaten many times by persons working for the loan shark. They killed his dogs and cats and tried to kill him with a knife. On one occasion he was kidnapped, beaten, and left in the bush.
He went to lodge a report with the police, but the loan shark cadres threatened to kill his family and friends.
He claimed that there is no state protection in Malaysia because dealing with a money lender is beyond the authorities’ jurisdiction. He cannot relocate within Malaysia as he can easily be found. He fears for his life and safety if he returns to Malaysia.
The Tribunal, at hearing, asked the applicant if anyone assisted him with his application and he advised that he was helped by an agent . He was asked if everything in the application was true and correct and the applicant said it was. The applicant confirmed he is a citizen of Malaysia and does not have citizenship of any other country.
He stated he has no family in Australia. He has a fiancé. He met his fiancé before he came to Australia in 2015. They were not living together, they met up somewhere outside. They became engaged in 2015 when he met her parents, this happened in February 2015 and he came to Australia in November 2016, nearly 2 years later.
The applicant explained that he did not finish high school in Malaysia, he studied to [grade] in 1996, initially worked in a forest as [an occupation 1] and then went to [Country 1] to do [specified] studies, he was there until 2000. He went there for 3 years. On his return he worked in a [business], [as a] worker of [specified] goods for 1 year and then he worked for a [product] company for 1 year, he then worked in [different products] company in Johor Bahru for 5 months, he moved places quite often and then worked at [a venue with specified duties] this was in 2014, after that he had a motor bike accident and could not work. He did not work for 1.5 months and then worked in a [business] for 1 year and then he worked in [a job] in a [venue], that was his last job until he came to Australia.
The applicant said his reason for coming to Australia was because he knew an agent from [social media] and he showed him work that he could do in Australia, it was [Industry 1] work. He worked in [a town] as an [occupation 2]. He cannot do [this work] now due to [an injury]. He has been working in Australia doing [occupation 2] work and also [for Business 1]. In 2018, he began working for [Business 1] and he still works for [them].
His injury occurred after he had a motor accident. He stood and pointed to his lower back region.
He borrowed money from loan shark, in 2014, he borrowed RM [amount]. Asked if he repaid any money, he said that he paid a small portion but the agreement was to repay RM [amount] per day. He only paid the loan shark once, RM [amount]. He did not continue to pay him because he only did small jobs and as time went by the interest increased.
Asked if he has since made any repayments, he said that he did not as the interest has increased so much.
I asked the applicant if he had any documents regarding the loan, he said that he did not make a police report. I asked him to confirm that the loan shark gave him no documents. Asked him how he knows what the interest rate is or what is owed. He said he has just estimated the interest rate. He met the loan shark through friends. He is not sure of his name, his friend a Chinese man knows him.
The loan shark would threaten him or his family if he does not pay. His family has moved to [Country 1] because his mother died and his father had married an [Country 1] lady. He has [specified family members], who all live in [Country 1]. Asked him why he would not go to [Country 1] he said that in [Country 1] it is hard to find work and they would ask for certificates and he has none. He came to Australia to find work to provide for his father.
I asked when he intended to repay the money to the loan shark, he said he does not think about it, he does not intend to pay him back. He said he does not have his phone number anymore; he has lost contact with him.
Asked him why he feared harm from loan shark if he has lost contact with him, he said the loan shark knows his residential house. His fiancé is in Selangor. He is from Sabah. His fiancé is planning to come to Australia to study. Asked why loan shark would know he was in Selangor when he is in Sabah, he said that the loan shark has a big organisation there.
The loan shark hurt him and hit him in the back. Put he had stated previously that he injured his back after bike accident. He then said that he did not injure back in the accident, just his knee.
He came to seek protection and to do some work. I put that he came to Australia and applied for a PV in order to get work rights, he agreed. I put that he therefore did not flee Malaysia fearing harm. He said no he came to Australia to apply for PV then he will get work rights, if he was on a holiday visa he cannot work.
Asked what he fears about returning to Malaysia now, he said he does not think about it as his fiancé is coming to Australia to study. I put that he does not fear returning to Malaysia he said that he does not think about going back, he feels safe and comfortable being in Australia.
I referred the applicant to country information and noted that unlicensed money lending was illegal in Malaysia and the police arrested and prosecuted loan sharks (“ah long”). DFAT confirms that illegal money lending is an offence under the Moneylenders Act 1951 and the Malaysian Government has acted against illegal money lenders on diverse fronts, including by legislation, police investigation and prosecution, the removal of loan shark advertisements, and through publicity campaigns. He said not all have been arrested.
I also observed that there are agencies in Malaysia that assist people who are unable to repay loans to loan sharks. For example, the non-government Malaysian Muslim Consumers Association (PPIM) has a unit (Ceti Haram Anti-Corruption Unit) dedicated to resolving loan shark debt by renegotiating its terms with the loan shark. It claims to have resolved thousands of cases (for a service fee).
Recent available country information indicates that the Malaysian police and other authorities are taking effective action against the unlawful acts of loan sharks. The authorities have conduced raids and arrests of loan sharks, as well as public campaigns against the use of unlawful moneylenders and loan sharks. They report successfully closing down a number of loan shark operations. The police are reportedly also encouraging victims to report illegal acts by moneylenders and there appears to be a willingness to do so. I explained that the police will take action, it is reported and they are effective.
I advised the applicant that his fiancé was no longer waiting to enter the hearing via Teams video. I had asked him at the commencement of the hearing for the nature of her evidence and he said that her evidence is about the reason he is seeking protection as she will tell about what he has told her. I asked him to confirm that she wanted to advise the Tribunal about what he had told her about his claims. I asked him where she lived, he said in Selangor. I asked him where he had problems with a loan shark, he said it was in Sabah, about 3-hour plane trip away from Selangor. He agreed that she had not witnessed or heard anything personally.
REASONS AND FINDINGS
On the basis of his Malaysian passport, I accept that the applicant is a national of Malaysia and not national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Malaysia. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Malaysia is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
I have considered whether I should have adjourned the Tribunal hearing in order to obtain information from the applicant’s fiancé. The applicant’s fiancé joined the Teams video hearing initially waiting in the lobby to be admitted. She was not in the lobby waiting for admission, at the conclusion of the applicant’s evidence. I requested that the applicant explain the evidence that she intended to provide to the Tribunal, as no Statutory Declaration or other information had been provided to the Tribunal. The applicant said that his fiancé lived in Selangor, he borrowed money from a loan shark in Sabah, his fiancé has never travelled to Sabah, she had not witnessed anything personally or heard anything personally about his circumstances and her evidence was to explain what the applicant had told her about what had happened to him in Malaysia. In light of this information, I did not delay completing the hearing in order to obtain evidence from this 3^rd party as I formed the view that I would be unable to place any weight on evidence that merely recounts the applicant’s claims.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
I note that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The applicant claims to fear harm on his return to Malaysia for financial debts owed to loan sharks.
Loan shark activities have been a persistent and deep-rooted feature of Malaysian society for several decades[2]. Illegal money lending attracts borrowers rejected by formal financial institutions, who do not meet the minimum income requirements for legal loans, or who have too many unpaid outstanding loans to qualify for additional borrowing. The percentage of Malaysia’s population of 31 million that engage with loan sharks is unknown. The nature of the activities is informal, and loan size and loan terms are determined through private agreements between borrowers and lenders. Annual complaint and calls for assistance cases to non-government agencies vary, but have ranged in the low hundreds to thousands; the Malaysian Muslim Consumers Association (PPIM) has said it received 15,000 cases in 2016,[3] and 40,000 complaints involving 64 000 loan sharks in 2017.4 The PPIM’s breakdown of borrowers by ethnic background is 80% (Malay), 10 % (Chinese), 8% (Indian), and 2% (other)[4].   Specific groups identified in the Malaysian media who use loans sharks include low-salary civil servants (mostly government officials, military personnel, hospital staff earning under RM 3,000 a month), small start-up business owners like cafes, gamblers, ‘drug abusers, failed businessmen and those living beyond their means[5].’
[2] Y. G. Guan, ‘The Long and Short of the "Along" Problem’, May 2003, The Malaysian Bar Association website
[3] Special committee to address loan sharks woes needed urgently – PPIM’, April 20, 2017
[4] Consumer group accused of profiteering from loan shark victims’, FMT, March 2018
[5] Easier, faster for civil servants to borrow from loan sharks’ The Malysian Insider,
DFAT[6] reports that Loan sharks carry out money lending activities without a licence, charging high interest rates to do so. Loan sharks operate very publicly in Malaysia and, while the practice is illegal, advertisements listing phone numbers and offers of cash loans for RM10,000 – RM20,000 (AUD3,100 – AUD6,200) appear on public property, including lamp posts and utility boxes. Loans typically carry an interest rate of about 30 to 40 per cent per month and can be as high as 15 per cent per day. In-country sources advise that loan sharks in Malaysia do not seek protection money.
[6] DFAT, Country Information Report - Malaysia, December 2019
The applicant gave evidence that when he arrived in Australia he worked as [an occupation 2] [in Industry 1] but was unable to continue to do so due to a pre-existing injury to his back that he had sustained in Malaysia in a motor bike accident. He stood up and attempted to show the Tribunal his back. Subsequently, the applicant claimed that the loan shark had hurt him and hit him in the back. When put to the applicant that he had previously stated in the hearing that his back injury was caused by a motor bike injury he recanted, stating that he only injured his knee in the motor bike accident. I reject his claim that he was injured in his back by a loan shark. I am of the view the applicant is prepared to state whatever he believes will assist him to obtain the visa sought.
The applicant told the Tribunal that he came to Australia to work. He said that he met a migration agent on [social media] who showed him available work in Australia, [Industry 1] work. I put to the applicant that he applied for a PV prior to the expiry of his Visitor Visa in order to obtain work rights. He said he could not work with a Visitor Visa, so he applied for a PV and he obtained work rights. I accept that the applicant came to Australia in order to work.
The applicant’s evidence in regard to obtaining a loan from the loan shark was vague. He said that the loan shark would threaten him or his family if he does not pay and then said that his family had moved to , it to the police. He said he did not know what the interest rate was and what is owed. I do not accept as plausible that if the applicant had borrowed money, he would not have been aware of the basic terms and conditions of the loan. I am of the view that he created his claims of owing money to a loan shark in order to enhance his claims to the visa sought.
As I do not accept that the applicant borrowed money from a loan shark, I do not accept that he was threatened or physically harmed by a loan shark when he lived in Malaysia. I am satisfied that the applicant left Malaysia, as the holder of a visitor visa in order to work in Australia and he applied for a PV in Australia in order to obtain work rights. I am satisfied the applicant did not leave Malaysia fearing harm.
I have considered the applicant’s claims singularly and cumulatively. I find that the applicant did not suffer harm for reasons of his race, religion, nationality, membership of particular social group or political opinion in Malaysia.
I am required to consider if there is a real chance or a real risk that the applicant, an ethnic Malay, would suffer serious or significant harm in the foreseeable future if he were to return to Malaysia.
Even were I to give the applicant the benefit of the doubt, [and I do not], that he had borrowed money from loan sharks who seek to harm him, and if the applicant returns to Malaysia he may be required, by the loan shark to repay monies owing, I do not accept that this amounts to serious harm for reasons of his race, religion, nationality, membership of a particular social group, or political opinion.

The Malaysian government has acted against illegal money lenders over several decades on diverse fronts, including by legislation, police investigation and prosecution, the removal of loan shark advertisements, and through publicity campaigns. Illegal money lending is an offence under the Moneylenders Act 1951 and punishment includes fines and imprisonment. Police powers under the Act and the penalties are summarised as follows by DFAT:
The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a fine of between RM250,000 and RM1 million (AUD80,000 – AUD320,000) or, a jail term of up to five years, or both.[7]
[7] DFAT, Country Information Report - Malaysia, December 2019
The police do actively investigate and prosecute illegal money lenders. Police actions against individual loan sharks under Section 5(2) are reported on regularly in the Malaysian media.[8] Major operations are undertaken by the police every few years to investigate and prosecute loan sharks. Most recently in October 2019, Inspector-General of Police announced that loan sharks also “could face action under Anti-Money Laundering, Terrorism Financing and Proceeds of Unlawful Activities Act (AMLA)…a multi-prong legal approach”.[9]
[8] ‘14 held for illegal money lending in Pahang, items worth RM1million seized’ NST, November 2019 ‘Violent gang of loan shark members nabbed’ The Star, Jan 2020
[9]
The Royal Malaysian Police (RMP) report to the federal Minister for Home Affairs and is responsible for law enforcement nationwide[10]. DFAT[11] reports that police have made several recent high-profile arrests and investigations of syndicates. In September 2019, the RMP arrested 21 people in Johor allegedly involved in syndicates illegally loaning money. In January 2019, the RMP arrested 13 suspects allegedly involved in a syndicate providing fraudulent loan applications resulting in total bank losses of RM10.35 million (AUD3.65 million); district police also arrested 11 members of a nationwide syndicate that had fraudulently taken funds from borrowers totaling RM1.3 million (AUD458,161). In November 2018, RMP arrested 21 people allegedly involved in a loan scam syndicate.
[10]
[11] DFAT Country Information Report , Malaysia , December 2019
There is no country information before me that indicates that the State would be complicit in the sense that it encourages, condones or tolerates the claimed harm feared. The country information referred to in relation to the Malaysian authorities indicates that the Malaysian authorities would not withhold protection to victims of loan sharks.
In relation to the overall effectiveness of authorities in Malaysia, measures have been put in place to combat illegal money lending. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so. This demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant by the Malaysian State and that the Malaysian State is willing and able to offer such protection.
Overall, on the available evidence, I am not satisfied that the police would fail to act, if requested, to offer victims of loan sharks, protection from loan sharks, thugs or any other criminals.
On the basis of the available evidence, I am satisfied that effective state protection is available to the applicant.
I have considered the applicant's claims and evidence individually and cumulatively. I am satisfied that the Malaysian state will not withhold protection from victims of loan sharks and I find that the applicant does not have a real chance that, if returned to Malaysia, he would suffer persecution for one or more of the reasons mentioned in paragraph 5J(1)(a). I find that the applicant does not have a well-founded fear of persecution for these reasons.
I have considered whether the applicant meets the complementary protection criterion under s.36(2)(aa).
As stated above, I reject the applicant’s claim he has suffered any harm in Malaysia. Therefore, I find remote the risk that the applicant will suffer significant harm on return to Malaysia.
I am not satisfied that 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 the applicant will suffer significant harm i.e. that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.
Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

ANNEXURE A
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 3029

27 May 2021

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