2007811 (Refugee)

2007811 (Refugee) [2021] AATA 1356 (2 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007811
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Noonan
DATE:2 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 2 March 2021 at 09:35am

CATCHWORDS
REFUGEE – protection visa – Malaysia – threats of harm from loan shark – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 28 April 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 8 November 2019. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection.
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 (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is, whether she is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant provided the Department with a copy of her Malaysian passport, which satisfied the delegate as to her identity and Malaysian citizenship.
On the basis of such, and in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Malaysia and that her identity is as she claims it to be. The Tribunal accepts that Malaysia is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Migration history and identity
The applicant first arrived in Australia [in] October 2019 as the holder of an electronic travel authority. On 8 November 2019, she applied for protection and was granted a bridging visa in connection with this application.
In her written application to the Department, the applicant stated she was born in Cheras, Kuala Lumpur Province, Malaysia, in [year], and that her ethnicity is Malay and religion is Islam. The applicant declared she can speak, read and write in Malay and English. She also indicated she has never been married.
The applicant stated she completed middle school education in [year] in Malaysia and that she has never been employed. She recorded no details of overseas travel in the last 30 years and noted she lived at a single address in Malaysia until her departure for Australia in October 2019.
Claims for protection
With respect to her written claims for protection, lodged with the Department on 8 November 2019, the applicant stated, in summary, that she left Malaysia as she and her family have been through a difficult life and are facing poverty and money problems. She stated Malaysia has economic problems and high government taxes. Despite searching for work, she stated all her applications are being rejected because she is not a smart student and has bad middle school results. She decided to stay in Australia as she wants to find any opportunities and beautiful life here (sic).
She stated she did not experience harm or try to relocate in Malaysia, stating her family do not have enough money to move. She declared that if she returns, she will not be harmed or mistreated, but nor will the authorities protect her, as the government thinks her family and her problems are minor to them, as she is the lowest status in her country. She stated she would not be able to relocate internally upon return, as no one will help or support her and her family.
The applicant was not offered a protection visa interview by the Department. The Department’s delegate found that the applicant is not a refugee as she is not at risk of harm for one of the reasons set out in s.5J(1)(a); and that she is not owed complementary protection as they were not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk she will suffer significant harm as set out in s.36(2)(aa). A copy of the delegate’s decision was provided by the applicant to the Tribunal. The applicant also supplied a copy of a notice for an appointment with a debt collection agency dated 23 August 2020, a notice of appointment dated 15 October 2020 and some text messages in Malay.
On 3 November 2020, the applicant submitted documents to the Tribunal, being a letter of demand to settle an outstanding bank card or personal finance debt from [Bank 1], dated 15 October 2020; a screenshot of WhatsApp messages between two unknown persons in Malay, undated and untranslated; and a notice of appointment of debt collection agency for an outstanding debt of RM [amount] from [Bank 2], dated 23 August 2020.
The Tribunal hearing was conducted on 19 November 2020 by conference telephone. The Tribunal was assisted during the hearing by a Malay interpreter. The applicant was not represented at the hearing and gave evidence on affirmation. The applicant stated to the Tribunal that she was in a private place for the purposes of the hearing, where she could not be overheard. The Tribunal was satisfied throughout the hearing that the applicant could hear and understand the Tribunal’s questions and no issues arose with respect to the manner in which the hearing was being conducted or with respect to interpretation concerns.
In summary the Tribunal discussed the following with the applicant:
·The applicant stated that she left Malaysia because she has not been able to succeed in her work endeavours. In Australia she is applying to become [occupation]. She also works part time on a farm. In Malaysia she was working [but] her income was insufficient to meet her debt repayment requirements.
·The Tribunal noted that her recently submitted evidence indicates that the applicant owes money to [Bank 2] and to [Bank 1]. The applicant estimated that she currently owes [Bank 2] [amount] Ringgit and [Bank 1] [amount] Ringgit. She took these loans out when she lost her job and was doing business sometime in 2017. She fell behind in her repayments in 2017. When she fell behind in her repayments, she became stressed and decided to come to Australia. She stated that, if she were to return to Malaysia, she fears that she cannot live there anymore. This is because she would not have work there.
·The applicant also stated that she has received a letter, which contains a kind of a threat that she would be harmed if she does not pay a loan shark back their money. The Tribunal noted that this is the first time she has claimed she owes money to a loan shark. She does not know the name of the loan shark. The applicant submitted that, due to her lack of IT knowledge she somehow omitted making this claim prior. The applicant then submitted that she had submitted this written threat made to her to the Tribunal. The Tribunal noted that the applicant made submissions and submitted evidence about owing money to banks and noted there are no threats of harm contained within these letters, only legal demands for repayment of monies owed, and these are the only letters submitted by the applicant. The Tribunal noted that it may not consider as credible the applicant’s new claim to have received a written threat of harm but not have submitted that threat to the Tribunal or made the Tribunal aware of any such threat or a loan with a loan shark prior to now. The applicant then noted the text messages she had sent through. The Tribunal noted the text or WhatsApp messages are not translated and that she would need to get these translated with a certified translator for the Tribunal to consider them. The applicant stated she would do this. The applicant then stated that the messages contain threats from the loan shark. They have said that if she doesn’t pay she will have to face some unexpected things. She noted that she first started receiving threats from the loan shark sometime in 2019. She first took the loan out in late 2018. When asked why she did not mention this in her written application the applicant stated she did not mention this because of her poor English. The Tribunal noted that it may expect that if she had debt problems and associated threats that she would put this down as a reason for fearing harm. The Tribunal also noted that she stated that she speaks, reads and writes English in her application. The applicant agreed that is true but then claimed that she did not explain herself in detail because her Grandma was not very good.
·The applicant stated that prior to leaving Malaysia she had been threatened by the loan shark and had also received calls from the Bank telling her she could be bankrupted. When asked if she had taken any action to resolve her debt with the loan shark the applicant stated she did not because the police will not take any action.
·The applicant confirmed that she previously lived in Kula Lumpur, prior to coming to Australia, and is originally from Sabah.
·The Tribunal noted that country information indicates that Muslim consumer associations may assist Muslim people with loan shark problems to consolidate their debts.[1] The applicant stated that these agencies will not help her. When asked if she is repaying her debts while in Australia the applicant stated that she has been repaying her loans. She then stated she has not been repaying the loans as she has insufficient money.
·The Tribunal also notes, as discussed at hearing, that Malaysia’s economic situation appears reasonable. The DFAT report states that:
othe World Bank classifies Malaysia as an upper middle-income, export-oriented economy; in 2018, its real GDP growth was 4.7 per cent, while per capita GDP was USD10,942 (AUD14,630); and Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (USD 8.50 (AUD 12.26) per day in 2012) falling from over 50 per cent in the 1960s to less than 1 per cent today. DFAT also report that in October 2019 the government launched a new plan for sustainable and equitable economic growth, focused on providing a decent standard of living for all Malaysians, and narrowing the wealth gap and the urban-rural divide by 2030.[2] Further that the Malaysian Department of Statistics reported an overall unemployment rate of 3.3 percent in February 2019.[3]
oFurther that Malaysians frequently relocate internally for employment reasons particularly to Peninsula Malaysia.[4]
·The Tribunal noted that country information, when seen in conjunction with the applicant’s employment history both in Malaysia and Australia, may suggest that her employment prospects would be reasonable should she return to Kuala Lumpur where she previously resided. The applicant agreed that this could be true for educated people and people with connections. However, while she is a hard-working person she was not getting anywhere in Malaysia. When asked if there is any reason she would be denied employment in Malaysia, the applicant stated it is just generally difficult to get a job in Malaysia.
[1] Department of Foreign Affairs and Trade, Country Information Report, 13 December 2019, p.40
[2] Department of Foreign Affairs and Trade, Country Information Report, 13 December 2019, p.10
[3] Department of Foreign Affairs and Trade, Country Information Report, 13 December 2019, p.11
[4] Department of Foreign Affairs and Trade, Country Information Report, 13 December 2019, p.58
THE TRIBUNAL’S FINDINGS
Loan shark claim
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that 'if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers.
The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
For the reasons set out below the Tribunal finds that the applicant is not a credible witness with respect to her claim to owe money to a Malaysian loan shark. Accordingly, the Tribunal does not accept that the applicant has been harassed or threatened or harmed in any way from a loan shark. The Tribunal has reached this conclusion for the following reasons, considered cumulatively.
Firstly, the applicant’s claim with respect to the loan shark was highly inconsistent and her explanations for this inconsistency were implausible. The applicant only introduced this claim at the hearing. Prior to the hearing she submitted to the Tribunal evidence of owing money to registered financial institutions in Malaysia and some untranslated text or WhatsApp messages which she claimed contained threats of harm from a loan shark. The Tribunal made it clear to the applicant during the hearing that she would need to have these text messages translated by a certified translator for them to be considered. The Tribunal afforded the applicant 14 days to do so however the applicant did not subsequently provide any such translation and the Tribunal cannot afford any weight to this evidence. When questioned as to the timing of her loan, and threats first made to her by the loan shark, the applicant stated she had started receiving threats prior to leaving for Australia and this had, in part, prompted her to leave for Australia. As she lodged her claim for protection in late 2019, once in Australia, the Tribunal expects that she would have included a fear of harm for this reason. The Tribunal simply does not accept the applicant’s submissions that she was variously having trouble with her English, or her extremely vague claims that her Grandma was having trouble, or that she was not proficient in IT, as plausible reasons for such a significant omission. This is because the applicant gave evidence that she can read, write and speak English and there is no logical reason why her Grandma’s condition would result in her having omitted such a significant claim and she has managed to submit her forms and other evidence with no evident IT difficulties. The Tribunal considers that an applicant who truly fears harm for a particular reason would reasonably be expected to disclose those reasons in a consistent manner. The Tribunal finds the applicant’s reasons for not doing so to be not credible for these reasons.

Secondly the applicant gave very vague evidence with respect to the claimed loan shark. When asked for the name or identity of the loan shark she did not know who they were. The Tribunal considers it highly implausible that the applicant would not be able to provide any identifying details of a loan shark she claims has been actively pursuing her both in Malaysia and in Australia. She also gave very vague evidence that the loan shark had written her a threatening letter of demand. However, when the Tribunal pointed out that she had not submitted any such letter and only letters of demand from her Bank creditors, she then simply referred the Tribunal to the untranslated text messages. Again, if the applicant had arranged finance with a loan shark and had been receiving correspondence as claimed from the loan shark it is highly implausible that she would not know the identity of the loan shark or the loan shark’s firm.
Thirdly the Tribunal also notes that s.423A requires the Tribunal to draw an adverse inference where an applicant raised a claim or presents evidence that was not put forward before the primary decision maker. The Tribunal is satisfied that the applicant does not have a reasonable explanation as to why this claim was not raised or evidence not presented before the primary decision maker as the Tribunal has already found. In such circumstances the Tribunal is required to draw an inference unfavourable to the credibility of the claim and does so.
For these reasons the Tribunal finds that the applicant’s claim to fear harm due to owing money to a loan shark is not credible. The Tribunal rejects the applicant’s claim that she owes money to a loan shark in Malaysia or that she has received past threats of harm from a loan shark in Malaysia as not credible. The Tribunal therefore finds that there is no real chance that the applicant will suffer serious harm should she return to Malaysia for this reason either now or in the reasonably foreseeable future.
Bank Loans
The Tribunal accepts that the applicant has borrowed money from [Bank 2] and [Bank 1] and that she still owes money with respect to these borrowings. The applicant raised a claim that she may be legally bankrupted if she were not to pay these debts. The Tribunal considers on the applicant’s overall evidence that she came to Australia because she wished to escape these financial problems and not because she feared serious harm from these banks. These banks have simply issued legal notices for her to repay her debts which the Tribunal does not consider constitute threats of serious harm. There is nothing within the evidence before the Tribunal such that it could be satisfied that there is a real chance she will suffer serious harm should she return to Malaysia for this reason (being required to confront and manage her financial affairs, however parlous) either now or in the reasonably foreseeable future and the Tribunal rejects her claim.
The Malaysian economy
The Tribunal accepts the applicant’s evidence about her background and work history in Malaysia and Australia. The Tribunal accepts that she was motivated to come to Australia to work and save money for herself. The Tribunal accepts that she is concerned about the economic situation in Malaysia. The Tribunal accepts that the applicant wishes to remain in Australia because she can earn significantly more in Australia than she can in Malaysia (where the monthly minimum wage in urban areas is RM1,200). As put to the applicant there is nothing before the Tribunal to indicate or suggest that she would be denied the opportunity to work in Malaysia. While the Tribunal accepts the applicant may have less disposable income available to her if she returned to Malaysia, the Tribunal does not accept that she faces a real chance of suffering persecution involving serious harm for one or more of the five reasons mentioned in s.5J(1)(a) of the Act if she returned to Malaysia.
The Tribunal also set out at hearing country information which reflects that the economic situation in Malaysia, especially in Peninsula Malaysia, where the applicant was previously residing, is reasonable. The Tribunal notes the DFAT report was published pre-COVID-19 (and before the related restrictions on economic activity) which has affected Malaysia's economic environment and altered GDP growth forecasts accordingly, subject to post pandemic global economic recovery and other domestic factors. However, in general the country information reflects that Malaysia is a an ‘upper middle-income, export orientated country’ with a long history of economic growth. Further the applicant is relatively young and has a history of being able to find some gainful work in Malaysia [and] in Australia as a farm worker. Overall, the Tribunal is satisfied that she would be able to subsist on return to Malaysia and the Tribunal rejects the applicant’s claim that she will suffer serious harm due to the poor economy in Malaysia.
Given these above considerations the Tribunal finds that there is no real chance the applicant would suffer significant economic hardship that threatens her capacity to subsist; and/or would be denied access to basic services, where the denial threatens her capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)–(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act, should she return to Malaysia. She therefore does not have a well-founded fear of persecution due to the state of the Malaysian economy.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has also considered the alternative criterion in s.36(2)(aa).
For the reasons set out above, the Tribunal has not accepted there to be a real chance that if she returns to Malaysia the applicant will be targeted for harm due to her claim to owe money to a loan shark or two Malaysian Banks or the claimed poor state of the Malaysian economy now or in the foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[5] For the same reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis.
[5] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]
The Tribunal accepts that the applicant may face demands for repayment of monies owed upon return to Malaysia and this may cause some stress. However, the Tribunal does not accept that the applicant has established that there are any grounds for believing that there is a real risk that she will suffer significant harm from her creditors.
Based on the evidence and information before the Tribunal as a whole, it does not accept that on her return there is a real risk that the applicant will be arbitrarily deprived of her life, that she will be subjected to the death penalty, to torture, to cruel or inhuman treatment or punishment or to degrading treatment or punishment. The Tribunal does not accept that the applicant has established that there are any grounds for believing that there is a real risk that she will suffer significant harm from her creditors or because of the 'poor economy' or for any other reason as a necessary and foreseeable consequence of her being returned to Malaysia. The Tribunal concludes that she does not meet the criterion in s.36(2)(aa) of the Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
Member

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

[2021] AATA 1356

2 March 2021

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Immigration

Statutory Interpretation

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