2013546 (Refugee)

2013546 (Refugee) [2024] AATA 4407 (9 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2013546

COUNTRY OF REFERENCE: Malaysia
MEMBER:Sophie Manera
DATE:9 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 September 2024 at 2:10pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – mixed religious relationship – threats from loan shark – criminal gang – physical assault – delay in applying for protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 412, 423, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is [an age]-year-old man and a Malaysian national.
[In] April 2015 the applicant arrived in Australia on a valid electronic travel authority visa.
On 3 February 2020 the applicant applied for a protection visa. In his protection visa application form the applicant claimed as follows:
·He has a Malay girlfriend, whom he married. They had been in love for 2 years;
·Her family opposed the relationship because they have different religions. Her father and brother pushed the applicant and beat him;
·Her family took his car keys and all his money;
·Her brother called friends and gang members. The applicant couldn’t leave;
·The applicant’s friend took him to other states and territories. They still found him and taught his friend a lesson;
·The gangsters constantly hit the applicant;
·The local police do not get involved in religious issues.
The applicant was not invited to attend an interview with an officer of the Department of Home Affairs.
On 24 August 2020 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
This is an application to the Administrative Appeals Tribunal (Tribunal) for review of that decision. The applicant made an application for review on 3 September 2020. The Tribunal finds that the applicant has made a valid application for review under s 412 of the Act. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 3 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Nationality
In his application for a protection visa, the applicant claims to be a citizen of Malaysia, born in Kuala Lumpur.
The applicant provided a scanned colour copy of his passport biodata page in support of his protection visa application. This document states the issuing office is Kuala Lumpur.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Malaysia, and as such his protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.
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 as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Analysis, findings and reasons
In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to applicants who are generally credible but unable to substantiate all of their claims. The Tribunal is also aware that if it makes an adverse finding in relation to a material claim made by an 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.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Furthermore, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant is not made out.[2] The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well-founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
During the hearing, the applicant stated that he had previously been married and he has an adult daughter. She studies at university in Malaysia and he pays for her studies. He divorced from his wife in 2010. He has not been in a relationship since 2010. The applicant stated that in Malaysia he had completed a diploma as a [specified role]. In Malaysia he worked as a salesperson in various industries. From approximately 2012 until he came to Australia, the applicant looked after his father, who was unwell with [a medical condition] and eventually passed away.
The Tribunal has significant concerns with the credibility of the applicant’s evidence. In reaching this view it has had regard to internal inconsistencies within the applicant’s written and oral evidence, vagueness and lack of detail in the applicant’s oral evidence, as well as other reasons detailed below.
At the start of the hearing, the Tribunal asked the applicant whether the contents of his protection visa application form were correct. The applicant stated that he filled in the form himself as he has some knowledge of English. He stated that he could not specifically remember what was in the form, but the main purpose of completing the form was that he needed a work visa during the COVID-19 pandemic.
When asked about the circumstances surrounding his decision to come to Australia, the applicant said that he had been taking care of his father in Malaysia in the 2½ years prior to his arrival in Australia. His father had been unwell with [a medical condition] and had eventually passed away. The applicant decided to come to Australia after his father had passed. The applicant borrowed money from friends to pay for his father’s treatment. His friends were chasing him to repay the debts.
The applicant said that after arriving in Australia he started working on a farm. It was difficult to find an employer who paid him properly. He repaid a small portion of his debts. When asked about his plan regarding the debts, the applicant stated that he wished to have a stable job in Australia so that he could repay his friends in instalments. He said that his friends in Malaysia have told him they have acquaintances in Malaysian airports and if he appeared at an airport, they would catch him.
The Tribunal notes that the claims contained in the applicant’s protection visa application form are entirely different to the claims raised at the hearing. During the hearing, the applicant did not state that he had been married to a Malay woman. He did not state that he feared harm because of an interfaith marriage. He did not state that he feared harm from his wife’s family members or from gangsters acting on their instructions.
The Tribunal put to the applicant that the claims he had made during the hearing were new and had not previously been presented to the Department. Furthermore, he had provided false claims to the Department. The Tribunal informed the applicant that in his protection visa application form he claimed to fear harm due to an interfaith marriage. The Tribunal said it was concerned by the applicant’s decision to provide false claims to the Department. The applicant responded that he had been married and divorced in Malaysia. He stated that he needs to work in Australia so he can repay his debts in full. He also stated that an agent gave him some material to add to his protection visa application form as his English was limited. The Tribunal informed the applicant this was different to what he had said earlier in the hearing, namely that he had completed the form himself and understood its contents. The applicant’s response did not assuage the Tribunal’s concern as to why his written claims for protection were entirely different from his oral claims. He did not satisfactorily explain why 2 completely different claim sets were raised. The Tribunal is concerned by the fact that the applicant has raised 2 entirely different claim sets, and finds this raises doubts about the credibility of the applicant’s evidence as a whole.
The Tribunal explained to the applicant the effect of s 423A of the Act, namely that the Tribunal is required to draw an unfavourable inference as to the credibility of a claim raised or evidence presented after the delegate’s decision was made if it is satisfied the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made. The applicant responded that the agent who helped him make his protection visa application did not ask him to provide so much detail. The Tribunal does not consider this explanation to be reasonable because it does not address why, if the applicant claims to fear harm as a result of being a debtor, he did not raise this claim sooner. The Tribunal accepts the applicant had assistance in preparing his protection visa application form from somebody who speaks Mandarin. However, the Tribunal considers it reasonable for the applicant to have raised his fears of persecution due to his status as a debtor with the agent who assisted him, rather than simply inserting erroneous claims provided by the agent into his protection visa application form. As the Tribunal is not satisfied the applicant has a reasonable explanation why the claim was not raised before the delegate’s decision was made, the Tribunal draws a negative inference in relation to the credibility of the applicant’s debtor claim.
The Tribunal also put to the applicant that it appeared his narrative had changed at various points throughout the hearing. For example, when initially asked about why he travelled to Australia, the applicant said that he had borrowed money from friends and his friends were chasing him for the debts. He said that he hoped to be able to work to repay his friends. Later in the hearing, the applicant said that the people from whom he had borrowed money were not 100% his friends; they were from a different social background to him and they were like a gang. The applicant then said that at first he had borrowed money from friends, and then his friend introduced him to a loan shark. The Tribunal put to the applicant that his story had changed; he had not previously mentioned owing money to a loan shark. The applicant responded that he did not want to disclose this earlier as he felt ashamed for having borrowed money from a loan shark. When the Tribunal pointed out he had not written this claim on his protection visa application form, the applicant said that he did not know how to resolve the matter at that time.
The Tribunal is concerned by the changing nature of the applicant’s narrative during the hearing. The Tribunal does not accept the applicant’s claim that he did not want to mention the loan shark earlier as he felt ashamed. This is because he did not provide further details as to why he felt ashamed, and because the applicant’s narrative during the hearing changed significantly within a very short period. He stated that he owed money to friends, and then approximately 10 minutes later, he mentioned the loan shark. The Tribunal notes the applicant only mentioned the loan shark after it put concerns to him as to whether the friends to whom he owed money would really take steps to physically hurt him to recover the debt. The Tribunal finds the applicant’s answers in relation to this changed depending on what he thought would be beneficial to his matter. The Tribunal finds the applicant’s changing narrative, with no reasonable explanation, casts further doubt on the credibility of the applicant’s evidence.
The Tribunal asked the applicant to explain the circumstances of how he came to borrow money from a loan shark, providing as much detail as possible. The applicant said that at the start he borrowed money from several friends. One of his friends referred him to a loan shark. The money he owed to his friends was transferred to the loan shark. The loan shark added interest to his debt. The total amount owing was more than he could repay. When pressed for further details, the applicant said the main reason to borrow money was to cover his father’s medical treatment, purchase medication, and pay for their living expenses.
The Tribunal put to the applicant that aspects of his oral evidence were vague and repetitive and lacking in the type of detail expected from someone speaking from personal experience. For example, the applicant did not provide substantial detail of how he came to borrow the money; from who, specifically, he borrowed the money; what the terms of the loan were; and what happened after he borrowed the money. When this issue was put to the applicant, he responded that he could add more detail. The applicant then said that he initially borrowed MYR5,000 from a friend, and he repaid part of that loan. He then needed to borrow more money but his friend could not assist him. His friend introduced him to a loan shark. The applicant borrowed money from the loan shark again and again and the amount accumulated. This is the reason why his wife divorced him. The Tribunal has considered the applicant’s response but notes that it does not substantially add to the evidence provided earlier during the hearing, which the Tribunal finds was lacking in detail. Despite being asked what was involved in the process of borrowing the money, the applicant repeated that his friend introduced him to a loan shark. He did not provide specific details as to when he approached the loan shark, what the process was for borrowing money, how he was able to borrow again and again, and what happened after he borrowed the money that led to his decision to come to Australia. The applicant did not claim, and the Tribunal does not find, that the gaps in the applicant’s evidence can be explained by his level of education or memory. Considering the detailed oral evidence the applicant provided regarding his father’s illness, death, and the execution of his will, the Tribunal considers it reasonable for the applicant to have provided further details regarding the circumstances as to how he came to borrow money from a loan shark, and what happened afterwards that led to his decision to come to Australia.
Claimed past harm
The Tribunal also put to the applicant that he had provided inconsistent evidence regarding past harm suffered in Malaysia. Initially when asked, the applicant said he had not suffered any incidents of harm or harassment in Malaysia. The Tribunal then asked the applicant whether any of his family members had suffered harm or harassment, to which the applicant responded that some people had thrown red paint in front of his home. When pressed for further details, the applicant said that people had come to his home and thrown red paint on the car and front door. He said he did not have anything further to add. The Tribunal put to the applicant that he had not provided any specific details about this incident, such as when it happened, who was home and whether it had been reported to the police. The Tribunal put to the applicant that it appeared strange that this incident had occurred to his family when he had not suffered any harassment himself. The applicant responded that loan sharks always start with threats, and it was his ex-wife’s car onto which red paint had been poured.

Later, when the Tribunal put to the applicant that he had not provided any documentary evidence to support his claims for protection, for example photos of the red paint poured on the front door and car, the applicant responded that he had no time to take photos of the front door and car as he was scared and had to call the police. He then said that he and his family just wanted to remove the red paint as soon as possible as they did not want the neighbours to see. The Tribunal pointed out to the applicant that this was different to what he had said earlier; that he had not suffered any harm or harassment in Malaysia. The applicant replied that he was home when this incident occurred. It happened overnight, and when he woke up he saw that red paint had been poured on the house and car. He did not explain why he failed to include this as an incident of harm or harassment to him, considering it took place whilst he was home, and considering he saw it as an instance of harassment to his family members. He also did not explain why, when pressed for further details earlier in the hearing, he failed to mention that he had been home when the incident occurred and that he had called the police.
The Tribunal pressed the applicant on the timing of the red paint incident. The applicant said that it was during the period in which he borrowed the money from the loan shark. When asked who was living in his house at the time, the applicant responded that he, his wife and his parents were living there. He was still married at the time. The Tribunal put to the applicant that, considering he was still married, this incident must have taken place before he divorced in 2010. However, he claims to have borrowed money from the loan shark in the 2 ½ years prior to his arrival in Australia, which, on the applicant’s evidence, was between approximately 2012 and 2014 or 2015. The applicant responded that he may have been divorced from his wife, but she was still living in the house. The Tribunal does not accept this answer. This is because when asked by the Tribunal at the start of the hearing, the applicant said that prior to coming to Australia he lived only with his parents, until his father’s death. He stated that his daughter lived with her mother (his ex-wife) in Kuala Lumpur. While it is plausible that the applicant’s wife may have lived in the applicant’s family home for some period after the couple divorced, the Tribunal finds that important aspects of the applicant’s narrative do not add up. The applicant claimed that he borrowed money in the 2 ½ years prior to his arrival in Australia which, the Tribunal notes from the Department’s decision record, was in April 2015. This means that, on the applicant’s evidence, he started borrowing money in approximately 2012. This is inconsistent with his earlier assertion that his wife divorced him in 2010 because of his debts. It is inconsistent with his earlier assertion that he lived only with his parents until his father’s death. The Tribunal cannot reconcile these variations in the applicant’s accounts. The Tribunal finds the inconsistent evidence regarding the claimed incident of past harm adversely affects the credibility of the applicant’s evidence.
As discussed with the applicant during the hearing, his oral evidence was vague, undetailed and inconsistent. While the Tribunal understands that a substantial amount of time has passed since these alleged events occurred, the Tribunal does not accept that the passage of time would prohibit the applicant from providing some level of consistent evidence over time.
Delay
The Tribunal’s credibility concerns are compounded by the applicant’s delay in lodging a protection visa application. The applicant arrived in Australia [in] April 2015. He did not lodge a protection visa application until 3 February 2020. His protection visa application was made nearly 58 months after he entered Australia. The Tribunal asked the applicant why, if he feared harm upon return to Malaysia, he did not apply for protection sooner. The applicant responded that he asked his friends how to obtain a legitimate Australian visa, but no one was able to help him. The Tribunal put to him that considering he feared for his safety, it would have expected him to make enquiries into how to seek protection in Australia. The applicant said that he was working on a farm and, while he wanted to apply for a visa, he had no access to correct information. The Tribunal accepts the applicant would have had limited English upon arrival in Australia and, while working at a regional farm, he may not have had the ability to make enquiries into how to remain in Australia. However, the Tribunal also notes the applicant claims in his protection visa application form to have lived in a suburb of Sydney since arriving in Australia. Furthermore, the applicant said during the hearing that he ceased working on farms as he was not paid properly and moved to Sydney to do [other specified] work. Considering, on the evidence, the applicant appears to have spent a substantial period of time living in Sydney prior to applying for protection, the Tribunal finds it reasonable for the applicant to have made enquiries into a way to seek protection in Australia at a sooner occasion in the years since he left the farms. The nearly 5-year delay in applying for protection, with no reasonable excuse for such a lengthy delay, is concerning to the Tribunal.
Furthermore, the Tribunal has also considered the applicant’s oral evidence that the main purpose of applying for protection was that he needed a work visa during the COVID-19 pandemic. He further added at the end of the hearing that his biggest hope is to obtain a legitimate Australian work visa so that he can support his mother financially. While the Tribunal accepts this aspiration is not necessarily inconsistent with a person fearing harm in their receiving country, the applicant’s repeatedly stated desire to obtain an Australian work visa leads the Tribunal to find that his only motivation for applying for a protection visa was to obtain permission to work in Australia rather than to genuinely seek protection from harm.
Considering the inconsistencies, gaps, vagueness and lack of detail in the applicant’s evidence, the delay in raising his claims and the lack of corroborative evidence, the Tribunal finds that his claim of fearing harm from loan sharks or as a debtor is not credible. The applicant did not claim, and the Tribunal does not accept, that these issues can be explained by his education level or the use of the interpreter during the hearing.
The Tribunal finds that in relation to the applicant’s claim that he borrowed money from friends and then a loan shark, his evidence is not credible. The Tribunal finds there is no persuasive evidence to support the applicant’s claims. As such, the Tribunal does not accept the applicant ever borrowed money from a loan shark. It does not accept the applicant has outstanding debts in Malaysia. It does not accept the applicant and his family members have ever been threatened, harmed or harassed by a loan shark, gangsters or anyone else. It does not accept the applicant has ever been threatened, harmed or harassed by his friends. It does not accept that his reputation with his friends has been damaged. It does not accept the applicant’s friends have connections to the airport.
Due to his lack of credibility, the Tribunal also does not accept the applicant has ever been in an interfaith marriage nor that he has ever come to the adverse attention of anyone in Malaysia for reason of being in an interfaith marriage.
The Tribunal finds the applicant does not face a real chance of serious harm in Malaysia for reasons of being a debtor, or for reasons of being in an interfaith marriage, or for any other reason.
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).
Complementary protection
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). 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. On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicant faces a real risk of significant harm from a loan shark, gangsters, friends, or his ex-wife’s family members. He did not claim harm for any other reason. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophie Manera
Member

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

[2024] AATA 4407

9 September 2024

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