2007270 (Refugee)
[2025] ARTA 1725
•23 June 2025
2007270 (Refugee) [2025] ARTA 1725 (23 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2007270
Tribunal:General Member K Defranciscis
Date:23 June 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 23 June 2025 at 2:01pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – criminal convictions – arrested and imprisoned – harassed and targeted by police – supervision order – discrimination due to past offences –failure to abide by punishments for crimes – fears harm of further imprisonment and/or being whipped/caned – undetailed and unsupported claims – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
McDonald v Director-General of Social Security (1984) 1 FCR 354
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Lay Lat (2006) 151 FCR 214
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437Any 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
BACKGROUND
This is an application for review of a decision made by a delegate of the Minister (the delegate) on 27 March 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 19 June 2019, the applicant, who is a citizen of Malaysia, was granted a Class UD Subclass 601 Electronic Travel Authority.
[In] July 2019, the applicant arrived in Australia.
On 17 October 2019, the applicant lodged an application for a protection visa. The applicant was concurrently granted a bridging visa.
On 27 March 2020, the delegate refused to grant the visa on the basis that applicant was not a person in respect of whom Australia had protection obligations as outlined in s 36(2) of the Act.
On 20 April 2020, the applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal.[1]
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
On 21 April 2020, the Tribunal acknowledged receipt of the application for review and noted inter alia, that if the applicant had any additional material that had not been provided to the Department of Home Affairs (the Department) and which he believed supported his application, he should provide it to the Tribunal as soon as possible. The letter to the applicant explained how he could provide further evidence or submissions.
On 12 December 2024, the Tribunal contacted the applicant and requested that he complete a pre-hearing information form.
On 14 December 2024, the applicant completed the pre-hearing information form in which he stated “Refer to my previous file” in respect of the question seeking more information about his claims for protection.
On 17 February 2025, the applicant was invited to attend a hearing on 6 March 2025 by videoconference.
On 21 February 2025, the applicant emailed a response to the hearing notice and attached “documents to be relied on at [the] hearing”. Attached to the email was a single PDF file which was five pages in length, with a header on each page which stated “Copy Of Previous Conviction Record”.
On 4 March 2025, the hearing scheduled for 6 March 2025 was vacated due to the impending arrival of Cyclone Alfred in Brisbane. The hearing was rescheduled and the applicant was notified by email of the new hearing date on 18 March 2025.
On 18 March 2025, the applicant appeared by videoconference before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. At the conclusion of the hearing, the applicant indicated that he wished to provide further documentary evidence about his claims and sought until the end of April 2025 to provide that further evidence.
The Tribunal advised the applicant that the hearing would be adjourned until 30 April 2025 so that he could provide further evidence. The Tribunal advised the applicant that any documents were written in a foreign language would need to be translated into English by a certified translator in accordance with Tribunal practice directions. The Tribunal advised the applicant that he would be provided with information about these requirements after the hearing.
On 20 March 2025, the Tribunal wrote to the applicant providing him with information regarding the provision of further evidence and the requirement for any documents or submissions to be in English or accompanied by a National Accreditation Authority for Translators and Interpreters (NAATI) certified translation into English. The Tribunal provided advice on where the applicant could obtain information on NAATI certified translators and interpreters.
On 23 March 2025, the applicant filed further written evidence in support of his application. In his cover email, the applicant stated that the documents had been translated by a qualified translator. The email contained five PDF attachments with different dates and reference numbers of “Police report[s]”.
On 4 April 2025, the applicant was given notice of the resumed hearing scheduled on 30 April 2025.
On 4 April 2025, the applicant responded to the notice and also attached the same evidence he had provided on 23 March 2025.
On 30 April 2025, the hearing resumed with the applicant attending by videoconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. During the hearing, the applicant emailed a further document – a screenshot of a bank transfer of $[amount] on 20 March 2025 from [a bank] account to “[Translation service 1]”.
Over the course of the hearings on 18 March 2025 and 30 April 2025, the applicant gave evidence about his claims for protection. The Tribunal asked many questions about the applicant’s claims and the documents he had provided. The Tribunal raised various concerns regarding the applicant’s claims and how he had obtained his documentary evidence and gave him the opportunity to respond. At the conclusion of the hearing the applicant confirmed that he did not wish to provide any further evidence to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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, 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.[2]
[2] DFAT, Country Information Report: Malaysia (24 June 2024) (DFAT Report)
EVIDENCE
Evidence before the Delegate
When the applicant first made his application for a protection visa on 17 October 2019, he provided no supporting evidence or explanation of his claims other than what was briefly written in his application form. The applicant stated in the application in response to the question about why he left Malaysia, that:
I have an order from [Malaysian Court 1] for 2 years from [July] 2019 to [July] 2021 on an offence under section 15(1) [Malaysian Act 1]. I was required to report every 2 years at nearby police station. This error was pointed out by a particular party because I did not want to cooperate to the authorities for any wrongdoing that I did not commit this conviction occurred to me a second time. I can no longer accept this decision and burden. This not by real fault. The parties could put the blame on me because they were in power can imprison me. For this reason I had to leave my country for protection and justice. I hope that through this decision I can lead a better and more comfortable life. I wish I could have been given the opportunity to settle in Australia. (sic)
In response to the question about what he thought would happen if he returned to Malaysia, he stated:
If I came back to my country of course I would be arrested by the authorities/Malaysian Police. I’ll be jailed and whipped.
In response to the question about what harm he experienced while in Malaysia, he stated:
“I do not want to be involved with anyone including the authorities who often harass me”
The applicant went on to state that he could not relocate within Malaysia because of the court order from Malaysian Police and could not seek protection from authorities in Malaysia given it was the authorities looking for him and they “could do anything without evidence” and were “full of corruption”.
The applicant stated in the application that he could not provide a court warrant for supervision, because the letter was in Malaysia.
The only other information available to the delegate prior to making a decision was a certified copy of the applicant’s passport, which was first issued [in] 2018 and valid until [2023]; and the biometrics assessment report dated [November] 2019.
Evidence before the Tribunal
The Tribunal had before it various pieces of evidence including the Department file, which included documents provided to it by the Department in respect of the application; movement records of the applicant; country information; additional submissions and evidence provided by the applicant; and the oral evidence of the applicant at the hearings. All of the available evidence was considered and a summary of the most relevant aspects of this evidence, other than the evidence discussed above, is set out below.
Documentary evidence
The applicant filed an application for review of the delegate’s decision with the Tribunal on 18 April 2020. In the application for review, the applicant gave reasons why he thought the delegate’s decision was wrong:
LIKE THIS FACT I HAVE ALREADY BEEN SENTENCED TO PRISON UNDER ACT 15(1). I HAVE AN ODER FROM MALAYSIAN COURT FOR 2 YERAS FROM [JULY] 2019 TO [JULY] 2021 ON AN OFFENSEN UNDER SECTION 15(1) DANGEROUS DRUG AC T 1952 I WAS REQUIRED TO REPORT EVERY 2 WEEK AT NEARBY POLICE STATION. I AM NO LONGER ABLE TO COMPLY WITH THE AUTHORITIE' WISHES. THEY MAY HAVE A SPECIFIC AGENDA FOR PUNISHING ME DESPITE NO SOLID EVIDENCE. I DO NOT HAVE ANY DOUCUMENTARY EVIDENCE TO REFER TO IMMIGRATION BUT THE RECORD OF THE OFFENSES AND PENALTIES I HAVE RECEIVED ARE CERTAINLY IN MALAYSIA. I'M UNABLE TO INCLUDE THE DOCUMENT BECAUSE IT WAS LOST IN MY STORAGE. I HOPE THAT I AM CONSIDERED AND GIVEN THE OPPORTUNITY TO LEAD A NEW LIFE IN AUSTRALIA WITHOUT INTERRUPTION AND THAT I WILL BE FULLY COMMITTED TO AUSTRALIAN GOVERNMENT. (sic)
As set out in the Background section above, the applicant did not provide any further evidence or explanation of his claims when invited to do so in the pre-hearing information form dated 14 December 2024.
However, after the hearing notice was sent to the applicant on 17 February 2025, almost five years after lodging his application for review with the Tribunal, he responded within five days with an email which included a five-page PDF document with a header on each page stating “Copy of Previous Conviction Record”. The document was purportedly issued by the Royal Malaysia Police and included a copy of the seal/logo of the Polis Diraja Malaysia. The document is in the English language, names the applicant as an offender, includes personal identifiers, and describes arrests on five different dates from [June] 2015 to [July] 2019. Each page of the document includes a footer “This is computer generated. No signature required.”
On 23 March 2025, five days after the initial hearing of the matter, the applicant filed five PDF documents which were purportedly police reports for four arrests and one arrest warrant with dates [June] 2015, [September] 2016, [June] 2018, and two [in] July 2019. Each PDF document contains a page which is written in a foreign language. The document appears to have been copied in some sort of screenshot fashion as it includes typical computer markers such as a “x” close document button and a scroll function on the right-hand side. Each document contains a watermark “[Untranslated details]” and includes a stamp “[Untranslated police details]”.
Each of the PDF documents contains a second page, which has the heading “[Translation service 1]” and contains business contact details. Each of the translated documents contains details about the applicant and an arrest. At the bottom of each of the translated documents is a typed note: “Translated by [Translator A], Professional Translator, [NAATI registration number]”. Alongside this is a stamp that is slightly faded but clearly notes “National Accreditation Authority for Translators and Interpreters” and “[NAATI registration number, Translator A] Translator Malaysian > English.[3]
[3] As discussed further below, the Tribunal notes that the accreditation number typed in the document does not match the number on the stamp.
The Tribunal accessed the NAATI website on 29 April 2025 and again on 1 May 2025 to search for the practitioner by name and registration number and was unable to locate any details of this translator using the search functions. On the NAATI Practitioner Identification page of the website, it notes that a practitioner may be NAATI “accredited” but are no longer certified and that “NAATI recommends that you seek to engage only NAATI-certified translators or interpreters so you can ensure they have current and up-to-date skills and experience.”[4]
[4] accessed on 29 April 2025 and 1 May 2025.
The Tribunal accessed the Australian Business Register website on 29 April 2025 and again on 1 May 2025 in order to search the ABN noted in the translated document for “[Translation service 1]. The ABN: [number] was noted to be a business for [Translator A] with a trading name “[Translation service 1]”. The ABN status was active and cancelled on numerous occasions, with a current status as “cancelled” since [March] 2023.[5]
[5] [ABN Lookup website] accessed on 29 April 2025 and 1 May 2025.
As set out in the background above, at the hearing on 30 April 2025, the applicant emailed a document which appears to be a screenshot of a bank transfer of $[amount] on 20 March 2025 from [a bank] account to “[Translation service 1]” noting that this was the applicant’s own description of the bank transfer.
The other written evidence before the Tribunal included the applicant’s movement records which shows that on 19 June 2019 he was granted a Class UD Subclass 601 Electronic Travel Authority and [in] July 2019 he arrived in Australia.
Oral evidence
The applicant gave oral evidence at the hearings on 18 March 2025 and 30 April 2025. The applicant’s oral evidence is summarised and has been set out below under the headings to which the evidence relates.
Background and personal circumstances
The applicant was asked questions about his schooling and work history, his family and how he came to Australia. Relevant aspects of this evidence includes:
·The applicant was born in Malaysia in [year] and is one of [a number of] siblings.
·The applicant was once married and divorced. He has one child from his first marriage. He has since remarried and has [a number of] children from his current marriage.[6]
·The applicant completed secondary schooling and then additional studies at an institution which provided him with a Diploma in [year].
·After completing his studies, he worked in various jobs including in [Workplace 1], in [Occupation 1], and [in Workplace 2] in Kuala Lumpur. He took care of [job task]. He then set up a business selling [goods] in his hometown of [Town 1], Kedah. He conducted this business for approximately three years before coming to Australia.
·[In] 2018, the applicant had his passport issued by the Malaysian government. He was asked why he had sought a passport around this time and stated that “The reason for me to make the passport is to come to Australia.”
·In approximately June 2019, the applicant sought assistance from a travel agency in Malaysia to get a tourist visa to travel to Australia.
·When the Tribunal raised that the applicant’s passport and visa applications pre-dated his arrests in July 2019, which indicated that he had been planning and considering travel to Australia before those claims crystallised, the applicant stated that: “The purpose of my application for the passport and visa that during that time is because I couldn't make decision either I want to come to Australia, Singapore, Thailand or anywhere that can accept me to work.”
·The applicant completed his protection visa application himself and but had assistance from his wife in Malaysia lodging it on his behalf.
·He has been working in Australia in various jobs such as [Occupation 2] and [in Industry 1]. He is currently working in [Industry 2] in [Suburb 1] where he [performs job tasks].
Claims for protection
[6] The applicant noted that he received a fine in Malaysia due to breaking the law when he remarried, but confirmed that this was not a reason for his claims for protection nor was it a reason that he could not return to Malaysia.
In the protection visa application, when asked why the applicant left Malaysia, he stated “Because I have a lot of crimes in the past, so there’s a lot of restrictions for me to go about my daily needs. It’s difficult for me to find a job, even as a delivery driver. The applicant went on to elaborate:
“There are several times that I was being arrested and imprisoned. There are three occasions which I was imprisoned. There is one occasion where I was put on to strict supervision in a particular place. So in the middle of 2019 , I receive a court order for me to attend court. The court order is to summon me to proceed to a nearby police station…This court order, the one that I received in the middle of 2019, the requirement is for me to report to nearby police station every month for about two years. And the order also states that I could not leave the area and I have to report to the police station every month for two years. And if I break any of the conditions stated in the order, I will be put behind bars for five years and I will get three strokes of the cane and without bail…I also provided the document of proof to state the crimes that I was being charged for.
The Tribunal clarified with the applicant that when he left Malaysia in 2019, he was not yet liable for further punishment such as imprisonment and that it was only by virtue of leaving the country that he may now incur that further punishment if he returns in the future. The applicant agreed with this, but reiterated that he thought he was being harassed and targeted by the police as well as not wanting to meet the requirements of the supervision order which was unfairly imposed on him.
The Tribunal put to the applicant that he was essentially stating that he left Malaysia, including his wife and child, because of he considered that he was being persecuted and being forced to follow a two-year supervision order which required him to report to a police station once per month. The applicant clarified that:
“What the main reason is, is difficult for me to get a proper job if I stay in Malaysia and if I were to go back, they will still have records of my past crimes and they will look for me and find ways and means to frame me up.”
When asked why the applicant feared returning to Malaysia, he stated:
“…possibly if I were to return back to Malaysia, I will be sentenced to the offence of the five years imprisonment and three caning because I have [flouted] one of the conditions and already break the rules set by the government.”
The applicant noted that there was a corrupt system in Malaysia and that as an ex-offender he will continue to be harassed.
The applicant explained that he was arrested in 2015 in relation to [Criminal offence 1]. He was fined and placed on a supervision order.
The applicant stated that he was arrested again in approximately 2016 in relation to [Criminal offence 1]. He said that the police [framed] him. He stated that he fought the case in court and eventually won after spending approximately six months in prison.
The applicant stated that he was arrested on a third occasion in approximately 2017 in relation to a dispute [that led to Criminal offence 2]. However, he said the complainant retracted their complaint to the police and he was released from jail approximately seven days later.
The applicant stated that he was arrested on a fourth occasion in mid-2019, but that it was related to the second set of offences regarding [Criminal offence 1]. The applicant was brought to the police station and ‘locked up’ for 14 days before he was brought before the court and ordered to pay [amount] Ringgit and serve a two-year close supervision order. The close supervision order requires him to report to a police station every month. He stated that this had been a part of the previous court order and because he had relocated back to his village at the time, he had not abided by that court order and it was this breach that he had been arrested for in 2019.
The applicant confirmed that he did not have any of the court orders or documents regarding his current or previous sentences, which he claims is some sort of two-year supervision order.
The applicant stated that because he had fled to Australia, he had not met the two-year supervision order and would therefore be subject to “section 39c”.
The Tribunal notes that the applicant appears to have been making a reference to section 39C of [Malaysian Act 1] which provides, in summary, that where a person has been convicted or admitted to a certain number of previous offences, they shall be punished with imprisonment of not less than five years and be subject to whipping of not more than three strokes.
As noted above, throughout the hearing the applicant also stated that his other reason for wanting to stay in Australia was because if he returned to Malaysia and were jailed, he would not be able to provide for his family. He stated that as a convicted criminal, there were limited employment options available to him which meant that he could not provide for his family.
Oral evidence about his documentary evidence
At the hearing on 18 March 2025, the applicant explained that the document he filed on 17 February 2025, which was purportedly a copy of his previous conviction record provided by the Royal Malaysia Police, was in fact a document he had authored himself after conducting his own translation of a document that was written in Malaysian language that had not been provided to the Tribunal.
The applicant stated that the document from which he had translated had been provided to him by a person in Malaysia named “[Mr A]”. He then gave a relatively convoluted explanation about how he had worked with [Mr A] when employed by [Workplace 2], but that his communications were not directly with [Mr A], but rather, [Mr A’s] wife.
The applicant was asked why he had not produced any of this evidence at an earlier date, rather than several days before the hearing. The applicant stated “Because I am not sure that I will need these evidences in order for me to show proof for me to apply for this protection visa.”
The Tribunal explained to the applicant that limited weight may be given to this document because it was not a copy of the original evidence, but rather, a document that he had created. The Tribunal advised the applicant that if he wished to provide supporting evidence which could potentially be given more weight, he should provide a copy of the original document with a translation conducted by a certified translator, if the original was not in English.
The applicant stated that “The documents are not the true copy because I've edited it, but the contents are correct…If I want to get the original copy, I will need to get [them] from the police officer in the police station…and I [would have] to pay about 4000 to get the original copy.”
As noted above, on 23 March 2025, the applicant emailed the Tribunal with five PDF attachments. At the hearing, the applicant described those documents as his “criminal record” in Malaysia. The applicant stated that on 18 March 2025, he asked his niece who is married to a police officer named [Mr A], to obtain the original copy of the arrest reports from a police station in Malaysia. The applicant stated that [Mr A] had asked a fellow police officer at the station to obtain the reports because he was not working in the station at the time and noting some issue regarding obtaining the documents while on night-shift. The applicant stated that he paid [Mr A] and this other police officer to obtain (print out) the police reports for him. The applicant was sent the police reports via ‘[Social media 1]’ on 20 March 2025.
On 20 March 2025, the applicant asked another friend in Australia to help him find a translator. The applicant was asked why he did not find a translator himself and responded that he was scared that he would be scammed, whereas, he trusted his friend to help him. The applicant stated that he never communicated directly with the translator, but sent the police reports via his friend and received the translated documents via his friend on 22 March 2025.
The applicant stated that he had an invoice from the translator, but was mistaken insofar as he produced the receipt of a bank transfer from his own account to what he described in the transfer as “[Translation service 1]” on 20 March 2025.
The applicant was given the opportunity to comment on the Tribunal’s concerns regarding the authenticity of the documents with issues such as the use of an uncertified translator who operates a deregistered business, and the irregular method and timeline that the applicant was able to obtain the documents from various ‘friends’ in Malaysia within two days of the initial hearing, despite not producing any of these documents in the previous five years since he had made his protection visa application. The Tribunal noted concern that the applicant had previously produced a document to Tribunal, which he conceded he had authored himself as an attempt at a translation of a Malaysia police record.
The applicant conveyed surprise and concern at the fact that his translated documents may not be credible due to concerns about the credibility of the interpreter , insisting that he had tried to meet the Tribunal’s direction of providing original copies which were translated by a certified NAATI translator.
The Tribunal noted concern that the applicant’s supporting evidence may show that he had been arrested in Malaysia, but not that he had been convicted or that he would face any harm or repercussions if he returns there in the future on account of those arrests.
The applicant did not respond to the concern directly, but reiterated that he would face a big problem if he returns to Malaysia and that this would mean going to jail for a longer time.
The Tribunal noted other concerns about the specific protection visa criteria in the Act, such as the refugee criteria, and the meaning of significant harm when considering the complementary protection criteria and that the applicant may not meet those particular provisions. The applicant did not comment on these concerns.
Country information
As will become clear in the below analysis, country information with respect to Malaysia’s legal and judicial system is relevant to the overall findings and so is set out below.
Sections 5.4 to 5.8 of the DFAT report provides that:
Royal Malaysia Police
The RMP is based on the British constabulary model, employs approximately 115,000 officers, and operates over 800 police stations across Malaysia. Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption.
RMP officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians, and Indian Malaysians.
According to Transparency International’s 2017 Global Corruption Barometer for the Asia-Pacific region (the latest available), Malaysians perceive the police as one of the most corrupt institutions in the country. External investigations into allegations of police misconduct were previously conducted by the Enforcement Agency Integrity Commission, which was not well-regarded by complainants. From July 2023, such investigations have been carried out by the Independent Police Conduct Commission (IPCC). The establishment of the IPCC was recommended by a Royal Commission in 2005. Due to the number of deaths in police custody and impunity in detention centres, the incoming government pledged to establish such an agency during the 2018 election campaign. In 2020, the then-government re-introduced what observers described as a ‘weakened’ bill, proposing the creation of the IPCC, which came into force in July 2023. SUARAM stated in April 2023 that the body has ‘too many restrictions which will hinder its investigations’ and that it is effectively ‘toothless’.
In-country sources reported in 2020 that the RMP had engaged in the practice of ‘chain of remand’ whereby police arrest someone, hold them until a court will not or cannot extend their remand, and release them only for police from a different police station to re-arrest that same person. Human rights observers reported that this practice occurred regularly.
In July 2014, the then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department within the RMP to enhance police integrity and image. SUHAKAM also receives complaints against the RMP and has investigated police behaviour. However, the government is not formally required to consider SUHAKAM’s reports or recommendations. SUHAKAM’s investigation into the disappearance of Pastor Raymond Koh concluded that RMP Special Branch was responsible for the disappearance, but no one was ever held accountable.
Sections 5.12 to 5.15 of the DFAT report provides that:
Legal System
The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level, and subordinate courts. Syariah courts operate at state level with jurisdiction over Muslims in personal matters. The subordinate civil courts hear the majority of Malaysia’s criminal, civil and family law matters for non-Muslims. A Judicial Appointments Commission makes judicial appointments, subject to the Prime Minister’s final approval. Seven of 11 members of the Federal Court are Malay Muslims, which is roughly equivalent to their proportion of the population.
In-country sources reported in 2018 that issues of judicial independence, arbitrary verdicts, selective prosecution, delays to court-ordered relief for civil plaintiffs, and preferential treatment of some litigants and lawyers persisted in Malaysia. The ability of individuals to seek legal redress through Malaysian courts is variable. In-county sources also told DFAT in 2018 that defendants generally had adequate time to prepare a defence, particularly those with the financial means to engage private counsel. Government legal aid is limited and generally of poor quality. Although strict rules of evidence apply in court, defence counsel may be impeded by limited pretrial discovery. According to a leading human rights NGO, a Court of Appeal judge reported that he had been reprimanded by a senior judge after writing a dissenting statement in 2018. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods: in mid-2018, 26.7 per cent of the total prison population comprised pre-trial detainees (see Detention and Prison).
State-level syariah courts apply syariah in accordance with their rules of procedure (see Religion). Native (Indigenous) courts operate in Sabah and Sarawak and are mechanisms for settling disputes regarding breaches of customary law. In accordance with the Constitution, native courts and the enforcement of native customary law are considered state matters, regulated by state legislation.
Mobile courts, which sit as the Magistrates and Sessions Courts and are empowered by roaming magistrates, operate in remote areas of Sabah and Sarawak. Mobile courts operate in an effort to register undocumented people, allowing the court magistrate to capture late birth registration with government officials from the National Registration Department present to process paperwork. Prior to presenting at a mobile court, applicants are required to register their applications online and provide available documentation (if any). Online checks are performed by the National Registration Department. When applicants present at the mobile court, they require a witness, often the midwife or the village head, to testify to the unregistered birth, and language checks will be performed. If an application is approved, a birth certificate can be issued on the spot while the applicant is at the mobile court. Single and unmarried mothers are permitted to register their children’s births at mobile courts in Sabah (see also Women; Children; Family Law).
Sections 5.16 to 5.19 of the DFAT report provides that:
Detention and Prison
Malaysia’s prisons are overcrowded, and in-country sources reported in 2018 that five-by-five metre prison cells contained an average of 20 people. According to World Prison Brief, in February 2023, the number of prisoners in Malaysia had reached over 72,400, despite Malaysian prisons only having capacity for a maximum of 65,700 prisoners. Authorities generally hold men, women and juveniles separately.
Prisons generally operate bucket toilets, suffer water shortages, and require prisoners to sleep on the floor with blankets. Newer prisons (Sungai Udang in Melaka, Sungai Buloh in Kuala Lumpur, and Puncak Alam in Selangor) have flushing toilets. Prison medical and psychosocial support services do not meet the accepted international minimum standards for the treatment of prisoners. The prison system has an arrangement with government hospitals to provide medical care; however, onsite medical supplies are insufficient to meet demand.
Death row prisoners are allowed to mix with other death row prisoners for one hour a day, allowed recreation activity over the weekend, and permitted to attend religious activities on Sundays. Death row prisoners are detained in a separate block from other prisoners, and held in their own cells, which have toilet facilities. Death row prisoners receive meals in their cells (see Death Penalty).
The International Committee of the Red Cross and SUHAKAM access prisons, detention centres and police lock ups on a regular basis. In 2019, SUHAKAM collaborated with the government to undertake a thorough review and reform of the prison management system, policies and practices, including compliance with minimum standards of detention following international standards, such as the Nelson Mandela Rules. According to the US Department of State, authorities do not generally permit NGOs or the media to monitor prison conditions.
Pertinent country information about the legal and justice system from other sources includes:
·Malaysian law prohibits arbitrary arrest and detention and provides for the right to challenge the lawfulness of an arrest or detention.[7]
·Malaysia’s Constitution provides for a fair and public trial and the judiciary generally enforces this right.[8]
·Defendants have the right to access an attorney of their choice or to have counsel appointed if facing charges that carry the death penalty.[9]
·Defendants also may apply for a public defender in certain other cases.[10]
·According to a Transparency International survey conducted during the latter part of 2020, public perceptions of corruption among judges and magistrates were relatively low.[11]
[7] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024, section 2d, pp 3-4.
[8] Ibid, section 1e, p 5.
[9] Ibid, section 1e, p 5.
[10] Ibid, section 2e, p 5.
[11] ‘Global Corruption Barometer - Asia’, Transparency International, 24 November 2020, p 44.
With respect to employment in Malaysia, the Tribunal notes the following at 2.10 of the DFAT report:
Employment
In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium and large enterprises are highly reliant on migrant labour.[12]
[12] DFAT report, at 2.10, p 9.
With respect to social welfare, the Tribunal notes the following country information:
·Broadly speaking, there are three categories of social welfare namely, social insurance and pensions, public assistance, and labour market programmes.[13]
·Various welfare assistance and support services are also administered by state governments, including the Zakat system that provides payments to needy and vulnerable persons.[14]
[13] 'BTI 2024 Country Report - Malaysia', Bertelsmann Stiftung, 19 March 2024, p.27; ‘Social Protection Programme in Malaysia, Do We Need Integration?’, Samad, S A and Shahid, M Md, International Journal for Studies on Children, Women, Elderly and Disabled, volume 5, October 2018, pp 72-73; ‘Social Security Programs Throughout the World: Asia and the Pacific, 2018: Malaysia’, Social Security Administration, March 2019; ‘Social Protection for all: The next step of the Malaysian welfare’, Koutronas, E, University of Virginia, 18 July 2020, chapter 2
[14] ‘A Decade of Social Protection Development in Selected Asian Countries’, OECD, 11 May 2017, p 60.
REASONS AND FINDINGS
Section 5AAA of the Act states that it is the responsibility of an applicant to specify all particulars of their claims. The Tribunal further notes that although the concept of onus of proof is not appropriate to administrative inquiries and decision-making[15], it is for the applicant to provide evidence and argument sufficient to satisfy the decision maker of the relevant facts.[16] A decision-maker is not required to make the applicant's case for him/her.[17] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[18]
Claims of harm associated with the applicant’s arrests in Malaysia
[15] McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; and Nagalingam v MILGEA (1992) 38 FCR 191
[16] MIMA v Lay Lat (2006) 151 FCR 214 at [76].
[17] Prasad v MIEA (1985) 6 FCR 155 at [33].
[18] Randhawa v MILGEA (1994) 52 FCR 437 at 451.
The Tribunal notes the importance of its findings with respect to the applicant’s documents. This is because other than the applicant’s own oral evidence and these documents, there is no other evidence to corroborate or support his claims. If the Tribunal accepts that the documents are genuine and authentic and therefore gives them substantial weight, they would substantially support key aspects of the applicant’s claims, such as the fact that he was once arrested in Malaysia. However, if the Tribunal is sufficiently concerned about the document’s authenticity and thus gives them limited weight, important aspects of the applicant’s claims would be entirely unsupported and less likely to be accepted.
The difficulty with accepting the documents as being genuine and authentic is that they are beset with problems which detract from their authenticity. Some of these problems were raised with the applicant for comment at the hearing and he did not have any particularly persuasive explanations, other than to convey his earnest attempts at getting documents which met the Tribunal’s guidelines and which supported his claims.
These problems are noted above, but are mostly related to the manner in which the applicant obtained the five police reports, as well as the translated copies. His story of corresponding through various family connections and former colleagues in Malaysia to obtain the five police reports via the bribe of a police officer within a police station, all within the space of only two days of the initial hearing, is somewhat extraordinary. He did not produce the correspondence he had with those parties in Malaysia, which would have corroborated his explanation.
However, the Tribunal notes the difficulty that the applicant faces in trying to obtain evidence while located in Australia. Therefore, despite the story of how the applicant came to be in possession of these police reports being quite incredible and uncorroborated, the Tribunal accepts the applicant’s explanation, which was consistent and detailed. Therefore, the Tribunal accepts that the five police reports produced are screenshots of the applicant’s police record obtained from a police station in Malaysia.
The remaining difficulty is that even though the Tribunal is prepared to accept the five police reports as being authentic copies of the applicant’s police record in Malaysia, there remains doubt about how much weight to give those documents in circumstances where there is some doubt about the credibility/reliability of the translated versions provided to the Tribunal.
As noted above, the translator conducts a business which has been deregistered, he is no longer NAATI certified and even made a typographical error in the use of his own accreditation on the translated documents (NAATI stamp accreditation number: [number] cf. typed number of [number]). Furthermore, the translation is undated – something the Tribunal finds troubling given it is purported to have been provided by a NAATI accredited translator.
These sorts of errors on top of the fact that the applicant could produce no evidence that he engaged this translator directly, rather than just paying a friend – who he did not call to give evidence – leads the Tribunal to have some serious reservations about the credibility of the translation.
However, once again, the Tribunal is mindful of the difficulty a self-represented applicant, whose first language is not English, must face in trying to meet the evidentiary standard required by the Tribunal. The Tribunal accepts the applicant’s evidence that he tried his best to meet those standards. He spoke earnestly about his attempts to use a NAATI translator, and in fact, it appears [Translator A] was at least NAATI accredited, albeit he is no longer certified.
Therefore, the Tribunal accepts that the applicant utilised a friend to obtain translation services and he transferred $[amount] to a business named [Translation service 1] on the understanding that this satisfied the Tribunal’s usual requirements for providing translated documents.
Although the Tribunal is in no place to conduct a translation itself, it is at least able to determine on the face of the documents, that there has been some consistency in the translation by comparing the use of dates, names and numbers across the documents – which are easily identifiable despite being in the Malaysian language. The documents being translated contain relatively basic identification information rather any long form of text. As such, the Tribunal is prepared to accept that the translated documents are an accurate presentation of the five police reports produced by the applicant.
The next step was for the Tribunal to consider how these five police reports support the applicant’s claims.
The five police reports support the applicant’s claims that he was arrested in Malaysia on at least five occasions between 2015 and 2019. They support his claims that he was arrested by the Malaysian State Police for [Criminal offence 1] in 2015 and 2016 and [Criminal offence 2] in 2018. They show where the applicant was living and what his occupation was each time he was arrested.
However, the police reports do not support that the applicant was ever convicted or sentenced in respect of the arrests. Even if the applicant was convicted, the arrest reports do not show what punishment he received in respect of the arrests. The applicant has conceded on numerous occasions throughout the hearing that he was not able to produce the documentation which showed what sentences he received by the courts. He stated that these “court documents” had been left in his home in Malaysia. He had earlier stated in the protection visa application that he cannot provide a “a court warrant for supervision” because the “letter is in Malaysia”. However, at best, these arrest reports show only that the applicant was arrested pursuant to the “ [Malaysian Act 1]”.
The applicant claims that the [July] 2019 arrests were in relation to his breach of conditions/punishment associated with his previous [Criminal offence 1], but the arrest reports show no more than that there was an arrest warrant issued at [time], with no details of any crime or drug screening included. The other [July] 2019 arrest report shows an arrest at [time] under the “ [Malaysian Act 1]. But again, there are no details about what offence or provision he was charged under or the outcome of the arrest. There is no [further investigation].
In fact, the only document which purports to show the outcome or “status” of his various arrests is the “Copy of Previous Conviction Record” which the applicant stated he wrote himself by translating an original document, which he has not provided to the Tribunal despite being offered the opportunity to do so. In short, the applicant has invented this document and until questioned about it at the hearing, had passed it off as a translated copy of his conviction record. Therefore, the Tribunal gives this document limited weight.
The Tribunal further notes that the applicant went to great lengths to obtain the five police reports through various connections and bribes, yet made no efforts to obtain these “court” documents despite them apparently being in his former residence in Malaysia. He gave no evidence about what attempts he made to obtain these documents other than to state that he did not think it was possible given the passage of time. He did not obtain any of the other court documents about his earlier convictions. The Tribunal is unconvinced by the applicant’s explanation about his efforts to obtain these documents and the reason for their absence.
The Tribunal notes that the applicant began taking steps to leave the country before he was even arrested [in] July 2019 – he accepted that he applied for a passport in 2018 as a means of leaving Malaysia in order to find work elsewhere. He was also granted an Electronic Travel Authority for entry into Australia two weeks before he was arrested in July 2019. The Tribunal infers that before the applicant was even arrested [in] July 2019, he had planned and taken steps to leave Malaysia. This is incongruent to his claims that he left based on his desire to avoid further punishment even though the arrests only incurred [in] July 2019.
The Tribunal further notes that despite being arrested [in] July 2019 and allegedly having outstanding charges/punishments, the applicant was able to depart Malaysia. He claimed that he was released from custody after being arrested [in] July 2019 because he paid a fine and was then told he must serve another two-year supervision order. There is no evidence to support this aspect of his claim.
Furthermore, the Tribunal considers the applicant’s oral evidence detailing what sentence/punishments he received and the legal proceedings and appeals he undertook through the courts in Malaysia to be brief and vague. He spoke only briefly about being falsely charged, spending months in prison, appealing through higher courts and eventually succeeding in those appeals. He spoke about being unfairly harassed in Malaysia. The Tribunal considers that if these claims were true, there would be some sort of documentation available to substantiate these legal processes were undertaken and witnesses that could corroborate the applicant’s history/claims.
100. The absence of a credible document demonstrating the conviction record or court orders (that is, something which shows the outcome of the arrests and/or the punishments associated with the arrests) in conjunction with the applicant’s poor attempt at inventing a document and/or obtaining the court documents from Malaysia, as well as his own vague evidence at the hearing, leads the Tribunal to seriously doubt his claims that he faces punishment in respect of these arrests if he returns to Malaysia.
101. Ultimately, the Tribunal does not accept the applicant’s undetailed and uncorroborated claims of potential punishment in Malaysia where he has done no more than prove he was arrested in the past. The Tribunal does not accept that the applicant will be unfairly imprisoned or whipped/caned upon return to Malaysia. The Tribunal does not accept that the applicant will be subject to s39C of [Malaysian Act 1] and that he will consequently be punished with five years imprisonment and whipping.
102. Furthermore, the Tribunal does not accept the applicant’s broad, undetailed and unsupported claims that he will be framed or harassed by police due to being a former criminal. The Tribunal relies on the country information about the Royal Malaysian Police set out above and notes there is no corroborative evidence that the applicant has been harassed or persecuted in the past due to his arrests or that this would occur on return to Malaysia.
Economic/employment evidence
103. The applicant claimed that as a convicted criminal he is unable to obtain suitable employment in Malaysia which would allow him to support his family. When the Tribunal put to the applicant that it had doubts about his claim that he left his wife and children in Malaysia simply to avoid the claimed probation/supervision order, he conceded that he had left for economic/employment reasons, chiefly, finding work to support his family. He repeated this claim on several occasions throughout the hearing – that he is unable to find adequate work in Malaysia due to his criminal history.
104. The Tribunal notes the applicant’s oral evidence about his education and employment history was thorough and detailed. He stated that he completed his secondary schooling and also obtained a diploma at a higher education institution. He was gainfully employed in various jobs including [in Workplace 1, Workplace 2, as Occupation 1] and in retail in his local town prior to his departure from Malaysia. The applicant has worked in [Industries 1 and 2] while in Australia.
105. The Tribunal notes the country information which sets out that Malaysia’s unemployment rate has decreased in recent years.
106. The Tribunal accepts that the applicant has a wife and [children] in Malaysia. The Tribunal accepts that his employment in Australia helps to financially support his family. As noted above, the Tribunal accepts that the applicant has been arrested on numerous occasions in the past, but does not accept that he has been convicted and sentenced in respect of those arrests. The Tribunal accepts the applicant’s oral evidence that relates specifically to his education and employment history, as set out above.
Receiving Country
107. The applicant provided a copy of his Malaysian passport and national identity card to the Department. The delegate determined that the applicant had provided sufficient evidence of his identity, which was consistent with a biometrics assessment. A further check of relevant systems revealed no information that raised concerns and so the delegate accepted the applicant’s identity as claimed.
108. There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he has any right to enter and reside in any third country. Therefore, based on the available evidence, the Tribunal is satisfied that the applicant is a citizen of Malaysia and Malaysia is the receiving country for the purposes of determining this application.
Does the applicant satisfy the refugee criterion for protection?
Claims of harm associated with the applicant’s arrests in Malaysia
109. The applicant claims that he will suffer harm by way of being imprisoned and/or whipped/caned due to his failure to abide by the punishments associated with the crimes for which he was allegedly convicted in Malaysia. The applicant conveyed his disagreement with the charges and suggested he was innocent.
110. As set out at length above, the Tribunal accepts that the applicant was arrested on various charges in 2015, 2016, 2018 and 2019, however, it does not accept that the applicant was convicted or sentenced in respect of the arrests or that there are outstanding punishments/sentences that he must serve if he returns to Malaysia. Therefore, the Tribunal is not satisfied that there is a real chance that the applicant faces imprisonment and/or caning/whipping in the reasonably foreseeable future.
111. The Tribunal notes the available country information about the Royal Malaysian Police and the legal system in Malaysia insofar as it indicates that Malaysian law prohibits arbitrary arrest and detention; provides for the right to challenge the lawfulness of an arrest or detention; provides for a fair and public trial; provides that defendant with the right to access an attorney of their choice or to have counsel appointed if facing charges that carry the death penalty; and that defendants may apply for a public defender in certain cases.
112. As such, even if the applicant has outstanding charges arising from those arrests for which he must eventually face a judicial process (which remains unclear on the available evidence), the country information supports that this will be a fair and just process and as such, there is not a real chance of serious harm in the reasonably foreseeable future.
113. It follows that the Tribunal does not accept that the applicant satisfies section 36(2)(a) of the Act with respect to his claims of harm associated with his historical arrests in Malaysia.
Claims of economic/employment harm associated with being a convicted criminal
114. As per the above findings, the Tribunal does not accept that there is a real chance of serious harm to the applicant, if he returns to Malaysia in the reasonably foreseeable future by virtue of his claimed harm associated with being a convicted criminal on the basis of its findings that it does not accept that the applicant has been convicted/punished in respect of his arrests.
115. The Tribunal notes that despite being arrested in 2015, 2016 and 2018, the applicant was able to find employment/earn an income during these years. The applicant’s evidence was that he completed his secondary schooling and also obtained a diploma at a higher education institution. He was gainfully employed in various jobs including [in Workplace 1, Workplace 2, as Occupation 1] and in retail in his local town prior to his departure from Malaysia. The Tribunal notes the country information which sets out that Malaysia’s unemployment rate has decreased in recent years. As such, the Tribunal considers that the applicant will be able to obtain employment in order to support himself if he returns to Malaysia in the reasonably foreseeable future.
116. Therefore, the Tribunal finds that there is not a real chance of serious harm in the reasonably foreseeable future on the basis that the applicant will be unable to find employment and/or earn enough money to support himself in Malaysia.
117. It follows that the Tribunal does not accept that the applicant satisfies s 36(2)(a) of the Act with respect to his claims of economic harm associated with inability to obtain employment in Malaysia.
Does the applicant satisfy the complementary protection criterion for protection?
118. 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).
119. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
‘Significant harm’ is exhaustively defined in s 36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
121. Consistent with the findings above, the Tribunal determines that there is not real risk of significant harm on the basis of the applicant’s claims that he will be harmed because of his alleged crimes committed in Malaysia.
122. Similarly, the Tribunal determines that there is not a real risk of significant harm on the basis of the applicant’s claims regarding his economic/employment prospects which are linked to his status as a former criminal. Even if the Tribunal accepted that there was a real risk that the applicant would face difficulties obtaining employment, it does not accept that the harm which follows would amount to significant harm, as it is defined section 36(2A)) of the Act.
123. Therefore, 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
125. The Tribunal affirms the decision not to grant the applicant a protection visa.
Dates of hearing: 18 March and 30 April 2025
Representative of applicant: self-represented
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
6
0