2005410 (Refugee)

2005410 (Refugee) [2024] AATA 4405 (20 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2005410
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Michael Brereton
DATE:20 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 September 2024 at 2:39pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – religion – Christian – Muslim – race – Chinese Malaysian Christian – being in a relationship with a Muslim man – applicants did not attend the hearing – first applicant has made no attempt to progress her application – second applicant has requested a decision be made without hearing – insufficient evidence to establish the relevant facts of the first applicant’s case – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 425, 426, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Malaysia, applied for the visas on 19 October 2018. Only the first named applicant made claims for protection. The second named applicant relies on the first applicant’s claims.
The first applicant claimed to fear harm because she is Christian, the second applicant is Muslim, and because Sabah is a terrorist base and is not safe. The delegate refused to grant the visas on the basis that although the first applicant may suffer some religious discrimination, this will be low level and will not involve serious or significant harm. The delegate found that the first applicant could obtain effective state protection in relation to the terrorism fears.
This matter has a procedural history as set out below. In summary, the second applicant advised the Tribunal that he does not wish to attend a hearing and consents to a decision being made on the papers. The first applicant was invited to, but did not appear at, a hearing listed for 9 September 2024.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are the first applicant’s fears of harm in Malaysia as a Chinese Malaysian Christian, and for being in a relationship with a Muslim man from the state of Sabah. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Application to the Department
In the application to the Department the first applicant made the following claims:
a.She is a Chinese Malaysian and a Christian.
b.The second applicant is ethnic Malaysian and a Muslim.
c.Malaysia is a racist country and only protects Muslims. This is the same across the country.
d.The applicants met and fell in love at first sight.
e.On return the first applicant will be forced to become Muslim. She will be arrested, brainwashed, and abused.
f.Sabah is not a safe place to return because it’s a terrorist base.
The second applicant did not make any claims of their own and relies on the first applicant’s claims. The applicants were not invited to attend an interview by the Department.
Application to the Tribunal
On 18 March 2020, the applicants applied to the Tribunal for review of the delegate’s decision. The application stated that they were living at the same address and provided an email address (Email 1) as the preferred method of contact.
Procedural History
On 5 November 2020, the Tribunal received a request for information under the Freedom of Information Act (FOI). This purported to be from the first applicant but was sent from a different email address (Email 2) to that on file. The Tribunal responded to that email with a request to complete a change of contact details form (MR6). On 29 November 2020, the Tribunal received an email from Email 2 withdrawing the FOI request and asking the Tribunal to update contact details for the first applicant. That email did not attach the MR6 form. On 9 December 2020, the Tribunal sent a further MR6 form to Email 2 with instructions to complete this so that the change of contact could be actioned.
On 16 December 2020, the Tribunal received an email from Email 2 attaching a completed MR6 form and a photocopy of what appears to be the first applicant’s passport. However, this email was not sent from the nominated email address and was marked in the Tribunal system as an unauthenticated submission. On 19 March 2021, the Tribunal emailed the Email 2 address advising the sender to:
Please contact the Tribunal by:
1. Email from the nominated email already provided to the Tribunal to [email protected]; or
2. Telephone on the number listed below or via our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
If you do not contact us by one of the above methods no further action will be taken by the Tribunal.
The Tribunal did not receive any reply to that invitation and the change of details request was not actioned.
On 19 March 2021 the Tribunal also called the mobile telephone number listed in the application to the Tribunal. The Tribunal officer recorded that the person who answered said they had no applications before the Tribunal and had had that number for many years.
On 8 April 2021, the Tribunal emailed the applicants at Email 1 advising that it had received a request to change contact details and asking the applicants to contact the Tribunal. The Tribunal did not receive any reply to this invitation.
There is no record of any further contact by the applicants until 2023. On 6 November 2023, the Tribunal received an email from a third (unauthenticated) email address (Email 3), purporting to be the second applicant and attaching a MR6 form and identity documents for the second applicant. On 8 November 2023, the Tribunal emailed Email 1 advising:
We have received a submission from an unknown email requesting to update contact details. If this was from yourself, please update your details by completing the MR6 Change of Contact Form attached and please request the update of contact details again. Once received, we can update your details and action your request.
If you did not forward any submission, then please confirm your current details and we will not action the request.
If you know who sent the request and want to add them as a recipient or representative to your case, please also complete part B and/or C on the attached Change of contact details form and complete the attached Appointment of representative and/or authorised recipient.
The Tribunal did not receive any reply to that email and did not action the request.
On 15 November 2023, the Tribunal received an email from Email 3 enquiring whether the second applicant’s contact details had been updated. The Tribunal received further requests from Email 3 on 8 January 2024 and 28 February 2024. There is no record of any compliant MR6 being received.
On 6 May 2024, the Tribunal emailed the applicants at Email 1 advising that the matter was being constituted to a Member and requesting pre-hearing information. The applicants did not reply to that request.
On 27 May 2024, the Tribunal emailed the applicants at Email 1 advising that the matter had been listed for a hearing on 17 June 2024. On 29 May 2024, the Tribunal received an email from Email 3 asking whether the second applicant’s contact details had been updated.
On 6 June 2024, a Tribunal officer called the number provided by the holder of Email 3. The person who answered said they were the second applicant, but the Tribunal officer was not satisfied as to identity and advised that they would discuss the matter with the constituted Tribunal Member. The Tribunal considered the matter and was satisfied that Email 3 is not linked to the first (primary review) applicant. The Tribunal decided that as Email 3 was not authenticated or linked to the first applicant, it would proceed with the hearing as listed. The Tribunal decided to not send any further correspondence to Email 3 at this time.
The Tribunal then considered the unauthenticated email from Email 2 and noted that it purports to have been sent by the first applicant. The Tribunal decided to send a courtesy email to Email 2 and on 7 June 2024, the Tribunal sent a courtesy email to Email 2 advising of the date and time of the hearing.
The applicants did not attend the hearing on 17 June 2024 or contact the Tribunal in relation to that hearing. Following the non-appearance, the Tribunal conducted checks to confirm that both applicants remain onshore and sought advice from the Department as to contact details. The Department advised that the contact email on its file was Email 1.
Having considered the above, the Tribunal was not satisfied that the applicant had been properly invited to a hearing as required by the Act. The Tribunal decided to try and relist the hearing.
On 26 July 2024, the Tribunal sent separate emails to Email 2 and Email 3 asking the recipients to contact the Tribunal by telephone. On 30 July 2024, the second applicant contacted the Tribunal by telephone, confirmed his identity, and confirmed Email 2 as his contact email. The second applicant said that he did not have any contact details for the first applicant.
On 6 August 2024, the Tribunal invited the second applicant to attend a video hearing listed for 26 August 2024. On 12 August 2024, the second applicant provided a new email address (Email 4) and MR6. The second applicant also returned the hearing invitation having marked the box stating that he will not attend the hearing and consents to a decision being made on the papers.
On 15 August 2024, the Tribunal wrote to the second applicant at Email 4 to confirm that the hearing had been vacated and advising:
The decision will now be made based on the information and evidence currently before the Tribunal, and we may consider criteria or issues that were not previously considered by the primary decision maker. You should provide us with any additional information you would like us to consider in your case without further delay.
On 15 August 2024, the Tribunal invited the first applicant to attend a hearing listed for 9 September 2024. That hearing invitation was sent to Email 1 and a courtesy copy was sent to Email 2. The hearing invitation stated:
We have considered the material before us but we are unable to make a favourable decision on this information alone.
If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
The first applicant did not attend at the time and place listed for the hearing. The first applicant has not attempted to contact the Tribunal, update her contact details, provide further information or evidence, or explain her non-attendance at the hearing. The Tribunal is satisfied that the invitation was sent to the email address provided by the first applicant (Email 1) and to the other email address that may be associated with the first applicant (Email 2).
The Tribunal is satisfied that the first applicant was invited to attend a hearing in accordance with the Act. The Tribunal takes into account that she has not responded to the Tribunal or provided any information or clarification of intention. The Tribunal also takes into account the second applicant’s request for a decision on the papers, the apparent loss of contact between the applicants, and the confusion and delay surrounding this matter. The Tribunal is satisfied that it has made unsuccessful attempts to contact the first applicant via email addresses and telephone.
Consideration - Progress of the Application
Where an applicant fails to appear at a Tribunal hearing, the Tribunal may decide to adjourn the hearing and issue an invitation to another hearing (s 427(1)(b)). Alternatively, it may proceed to make a decision on the information before it, without giving the applicant further opportunity to provide information (s 426A(1A)(a), or it may dismiss the application for non-appearance without considering the application (s 426A(1A)(b)). If the Tribunal proceeds on the information before it, the effect of the ultimate decision is a final decision of the Tribunal. The applicant will have no further review right in the Tribunal and if they wish to challenge the decision, they will need to make an application in the Federal Circuit and Family Court of Australia to seek judicial review. If the Tribunal dismisses the application for non-appearance, the applicant has a 14-day period in which to seek reinstatement in the Tribunal. If the applicant does not seek reinstatement the Tribunal must confirm the dismissal, which has the effect of affirming the decision under review (s 426A(1E)).
Adjournment
The Tribunal adjourned the 17 June 2024 hearing, having reached the view that the applicants may not have been properly invited and that it was appropriate to undertake further checks. For the reasons set out above, the Tribunal is satisfied that the second applicant was properly invited to attend a hearing on 26 August 2024, and that the second applicant has advised that he does not wish to attend the hearing and consents to a decision being made on the information before the Tribunal. Section 425 of the Act provides that where an applicant consents to the Tribunal deciding the review without the applicant appearing before it, the applicant is no longer entitled to appear before the Tribunal. The Tribunal is satisfied that the second applicant has requested a decision be made without hearing. The Tribunal has decided to proceed without giving the second applicant further opportunity to appear before it.
The first applicant has had no contact with the Tribunal since an unauthenticated email was sent from Email 2 in December 2020. The first applicant has not updated her contact details with the Tribunal or with the Department. The second applicant has not been able to provide contact details for the first applicant. The Tribunal has attempted unsuccessfully to contact the first applicant at her nominated email address as well as the unauthenticated email address. There is no other contact information available to the Tribunal, nor is there any other apparent avenue of contacting the first applicant.
The Tribunal also takes into account that the first applicant has made no attempt to progress her application, make enquiries of its status, or have any other engagement in the process since November 2020.
Having considered all the circumstances set out above, the Tribunal has decided not to exercise its power to adjourn the hearing of the application.
Dismissal
The Tribunal has next considered whether to dismiss the application, noting that this will give the first applicant 14 days in which to seek reinstatement. The Tribunal acknowledges that this provides a second tier “safety net” for an applicant who has missed an opportunity to attend a hearing. In the present matter, however, the Tribunal gives weight to the attempts made to contact the first applicant, commencing in 2020 when the first unauthenticated email was received from Email 2. These attempts include recent courtesy correspondence sent to Email 2.
The Tribunal also notes section 2A of the Administrative Appeals Tribunal Act 1975(Cth), which provides that:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision - making of the Tribunal.
The Tribunal does not consider that further contact attempts will assist with the resolution of this matter. The Tribunal also takes into account the nature of the claims (considered further below) and acknowledges that while an application for a Protection visa is a serious and significant matter, an applicant has the responsibility to provide particulars of all claims and sufficient evidence (s 5AAA of the Act).
Having considered all the circumstances set out above, the Tribunal has decided not to exercise its power to dismiss the application under s 426A(1A)(b).
Decision on the Information

As set out above, there are two applicants in this matter. The second applicant has requested a decision be made on the information before the Tribunal. The first applicant has had no contact with the Tribunal since 2020. The Tribunal has decided that it is not appropriate to adjourn the hearing or to dismiss the application for non- appearance.
The Tribunal acknowledges that a decision under s 426(1A)(a) will finalise the application before the Tribunal. The Tribunal takes into account that judicial review is not the same as administrative review and that the first applicant will therefore lose her ability to administratively review the delegate’s decision. However, taking into account all of the circumstances set out above, the Tribunal considers that it is appropriate in the present matter to proceed to a decision on the information before it. The Tribunal has decided to proceed to a decision under s 426(1A)(a).
FINDINGS
Identity
The applicants claim to be citizens of Malaysia and have provided copies of Malaysian identity documents. There is no information before the Tribunal indicating that they have a right to return to or reside in any other country. The Tribunal finds that the applicants are Malaysian citizens, and that Malaysia is the receiving country and country of reference for the purposes of this review.
First Applicant 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 an 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The first applicant claims to fear harm in Malaysia, and specifically Sabah, because she is a Chinese Malaysian, a Christian, is in a relationship with a Muslim man, and because Sabah is not safe and is a “terrorist state”. She has not provided any elaboration of those claims or any supporting evidence or information.
The first applicant has provided very limited details about her past experiences, her relationship, and her fears of future harms. Apart from her assertions in the visa application, there is no evidence provided suggesting that the first applicant is involved presently in any sort of relationship with the second applicant. There are no documents corroborating the assertion and the Tribunal also notes the contact history set out above suggests that the first and second applicant are not living together or in contact. There is no evidence or information provided that explains in any detail what harm she may have faced in Malaysia. There is no evidence or information provided detailing harm she fears now or in the reasonably foreseeable future, who will inflict this harm, why she cannot obtain protection in Malaysia, or why this harm will occur throughout Malaysia.
There is insufficient evidence before the Tribunal to establish the relevant facts of the first applicant’s case. For these reasons, the Tribunal is not satisfied on the evidence provided that the first applicant will face any adverse interest from any person or groups, for any reason or reasons, should she return to Malaysia.
There is no other information before the Tribunal indicating that the first applicant will be otherwise targeted or harmed for one or more of the reasons in s 5J(1)(a). The Tribunal finds that the first applicant does not face a real chance of serious harm for any reason or reasons, now or in the reasonably foreseeable future, should she return to Malaysia, The Tribunal finds that the first applicant does not have a well-founded fear of persecution for any reason, should she return to Malaysia.
The Tribunal now turns to whether the first applicant satisfies the criterion in s 36(2)(aa) of the Act. A person will meet that criterion if there are ‘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’.
For the reasons set out above, the Tribunal has found there is not a real chance the first applicant will experience harm from any person or groups, for any reason or reasons, now or in the reasonably foreseeable future, if she returns to Malaysia. In MIAC v SZQRB,[2] 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 Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J.[3] It follows that the Tribunal is not satisfied that there is a real risk that the first applicant will face significant harm from any persons or groups, if returned to Malaysia.
[2] (2013) 210 FCR 505.
[3] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
The Tribunal finds that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Malaysia, there is a real risk that the first applicant will suffer significant harm. The Tribunal is not satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
Second Applicant
The second applicant has not made any claims of his own and relies only on the first applicant’s claims. The Tribunal has found above that the first applicant does not face a real chance or real risk of relevant harm for any reason or reasons in Malaysia now or in the reasonably foreseeable future. It follows that the second applicant does not face a real chance or real risk of relevant harm because of the first applicant’s claims. There is no information or evidence before the Tribunal suggesting that he may face a real chance or real risk of harm for any other reason or reasons, now or in the reasonably foreseeable future, should he return to Malaysia. The Tribunal is not satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
There is no information before the Tribunal suggesting that either of the applicants have other family members in Australia who hold protection visas. There is no information before the Tribunal that the first applicant and/or the second applicant satisfy 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 applicants do not satisfy the criterion in s 36(2).
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Michael Brereton
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4405

20 September 2024

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

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