2203228 (Refugee)
[2024] ARTA 623
•31 October 2024
2203228 (Refugee) [2024] ARTA 623 (31 October 2024)
Decision and
Reasons for Decision
Respondent:
Minister for Home Affairs
Tribunal Number:
2203228
Tribunal:
General Member A Stratigos
Date:
31 October 2024
Place:
Brisbane
Decision:
The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)the second named applicant meets s 36(2)(a) of the Migration Act.
I, General Member A. Stratigos, certify this is the Tribunal's statement of decision and reasons.
Statement made on 31 October 2024 at 12:37pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – lesbian – divorced woman – religion – Muslim – physical assault – Syariah law – sexual violence – fear of detention – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Any 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
APPLICATION FOR REVIEW
This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 23 February 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Malaysia, applied for the visas on 20 April 2018. The delegate refused to grant the visas having found that the applicants did not face a real chance of serious harm or real risk of significant harm if returned to Malaysia.
The Tribunal has had access to a recording of an interview that the Department of Home Affairs (the Department) conducted with the applicants on 16 November 2021. The Tribunal has been able to proceed without holding a hearing on the basis of the material provided by the applicants to the Department and the interview conducted by the Department.
BACKGROUND
This application involves two applicants, a lesbian[1] couple from Malaysia. The applicants’ claims for protection predominantly centre around their sexuality and relationship. Both applicants are also Malay Muslims.
[1] The applicants have used she/her pronouns in documents provided to the Department and the
Tribunal and referred to themselves as “lesbian”, “LGB” (lesbian, gay and bi-sexual) or “LGBT” (lesbian, gay, bi-sexual and transgender). In this decision the Tribunal has used the terms “lesbian” and “LGBTIQ+” (lesbian, gay, bi-sexual, transgender, intersex, queer and others) interchangeably, including in reference to various independent country of origin information which may use alternate terminology.
The applicants travelled together to Australia in early March 2018 and lodged their application for protection on 20 April 20218. They claim that this travel to Australia was for the purpose of seeking protection.
CLAIMS AND EVIDENCE
The applicants provided the following evidence to the Department:
• Protection visa application;
• Supporting documents, which most relevantly includes; statements of claim, business records and photographs; and
• Evidence provided at interview on 16 November 2021.
The applicants gave evidence, separately, in the interview with the Department with the assistance of an interpreter in the Malay and English languages, the applicants also communicated at various points during the interview in the English language.
The Tribunal also has available the delegate’s decision, and the Tribunal notes that the delegate accepted that the applicants are Malay Muslim lesbian woman from Malaysia who are in a relationship together.
The applicants’ claims and evidence were consistently provided in writing and orally, and are as follows:
Claims and Evidence of Applicant 1
Applicant 1 (the first named Applicant) identifies as a lesbian woman. She claims that, from an early age, she preferred to adopt a more masculine dress style, describing that when she was young she dressed as a “tomboy”, and she recognised that she was attracted to women from around age 14. Her feelings towards women made her feel confused.
She described how she was bullied from a young age due to how she presented, she claims that since she was a child community attitudes towards her made her feel unsafe, scared and insecure.
Applicant 1 states that now as an adult she continues to adopt a more masculine style of dress and prefers to keep her hair short. She provided photographs which confirmed this preferred appearance. Applicant 1 is Muslim however she does not wear a hijab. Applicant 1 claims that from a young age she has been scared to be herself. In the Departmental interview she stated that she has felt compelled at times to grow her hair long to pretend she is a “normal human”.
Applicant 1 gave evidence as to the development of her relationship with Applicant 2 (the second named Applicant) and their life together in Malaysia. They met at a work function in October 2011 and declared their love for each other in November 2011. They lived in separate parts of the country and Applicant 2 relocated to be with Applicant 1 in March 2012. The couple have run both [two businesses] together. They initially lived with Applicant 1’s parents, they told her parents that they were best friends. They eventually bought a house together.
Applicant 1 gave evidence that she feels fearful to be herself in Malaysia and claims that she has not been and cannot be open about her sexuality in Malaysia. Although Applicant 1 had not openly disclosed her sexuality to anyone other than close friend who is also in the LGBTIQ+ community, she claims that due to her dress and time spent with Applicant 2 she often faced negative community attitudes.
Applicant 1 claims that she faced harm including being spat at, and threats of physical/sexual violence.
Applicant 1 fears that she will not be able to be open about her sexuality and her relationship with Applicant 2. She fears that she could be at risk of harm from authorities due to laws against engaging in same-sex relationships. She also fears harm as a result of syariah laws that she would be subject to as a Muslim woman.
Applicant 1 described a close relationship with her parents, however she claims that their attitude towards her would change if she were to openly disclose her sexuality to her as her family are very traditional and conservative. She fears her father may even subject her to physical harm. When her parents questioned her in the past her sexuality and asked her to get married, she had had informed them that she was electing to focus on her career.
Applicant 1 felt that the circumstances for LGBTIQ+ people has become worse in more recent years which is how she explained the reason for the delay in leaving Malaysia to seek protection.
Claims and Evidence of Applicant 2
Applicant 2 claims to be a lesbian woman. She is in a same-sex relationship with Applicant
1. Applicant 2 felt that her sexuality was not as obvious as that of Applicant 1 due to Applicant 1’s preferred dress, however she still feels isolated and despised, and claims that life is very difficult in Malaysia as a result of her sexuality. Applicant 2 gave evidence that she loves woman and wants to continue to be in a relationship with Applicant 1.
Applicant 2 claims that she is a practicing Muslim however she does not wear the hijab.
Applicant 2 was married to a man in 2003 and divorced in 2007. She has two children of the relationship. She claims that when in that relationship she was subject to violence including mental abuse and physical abuse including sexual violence.
Applicant 2 gave a consistent account to Applicant 1 as to how they met and the development of their relationship. Applicant 2 also gave evidence in relation to her children.
She described how the children had come to live with the applicants from 2014. In 2016 Applicant 2’s daughter had been bullied by other children at school who had seen the applicants walking together in a shopping mall. Applicant 2 claims that after this event her daughter was feeling depressed so the decision was made for the children to relocate back to Kuala Lumpur to reside with Applicant 2’s sister.
Applicant 2 claims she has not disclosed her sexuality or relationship status to anyone other than a close friend who is also in the LGBTIQ+ community. Applicant 2 would inform family and community that her and Applicant 1 were nothing more than very best friends and business partners. Applicant 2 claims that family were not suspicious of the relationship as they were aware of the business partnership. The couple avoided showing affection to one another in front of anyone, including Applicant 2’s children. Applicant 2 claims that she didn’t disclose her sexuality and avoided showing affecting in public so as to avoid attracting negative attention from if the community and authorities.
Applicant 2 claims that the community became jealous of the business relationship between her and Applicant 1 and their business success and tried to put black magic on them to prevent their success.
Applicant 2 claims that she felt threatened due to her and Applicant 1’s sexuality, and that on one occasion they were spat on at a shopping mall when they were holding hands.
Applicant 2 was not part of any LGBTIQ+ advocacy or groups in Malaysia, she indicated that she was of the belief that no such groups could exist in Malaysia as people are not allowed engage in LGBTIQ+ behaviours.
Applicant 2 has travelled outside of Malaysia previously, including to Australia with Applicant 1 in 2013. When travelling to Australia in 2013 Applicant 2 claims that this was for the sole purpose of a holiday and she had not given thought to remaining in Australia at that time.
CONSIDERATION OF CLAIMS AND EVIDENCE 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.
REASONS AND FINDINGS
The primary issue in this case is whether Applicant 1 and/or Applicant 2 would face a real chance of serious harm on the basis of their sexuality or a real risk of significant harm. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Background and Identity
On the basis of the applicants’ passports and the evidence provided in their application and in the interview with the Department the Tribunal is satisfied that applicants are nationals of Malaysia, as claimed, and satisfied that their identity is that which is contained in their passports. The Tribunal is satisfied that the country of reference is Malaysia.
The applicants have both travelled outside of Malaysia prior to their arrival in Australia in 2018, however, there is nothing before the Tribunal which suggest that the applicants have a right to enter and reside in any country other than Malaysia, accordingly, the Tribunal is satisfied that s36(3) does not apply.
Assessment of claims
The applicants claim that they fear returning to Malaysia as they are members of the LGBTIQ+ community, specifically the applicants identify as lesbian. The applicants also claim that their religion, as Muslim, exacerbate their fears of return. Both applicants claim that they practice their religion however they do not wear the hijab.
Applicant 1 raised further fears of returning due to her preference for wearing masculine clothing. Applicant 2 also expressed fears on behalf of Applicant 1 in relation to Applicant 1’s preference for wearing more masculine dress.
Applicant 2 identified that she was previously married to a man and is now divorced, she also identified that she was the victim of domestic violence, including sexual violence, at the hands of her ex-husband. Applicant 2 also gave evidence as to bullying and harassment that her daughter had faced as a result of the relationship between Applicant 1 and 2. However, no claims were specifically raised as to fears that Applicant 2 had of returning to Malaysia due to her prior relationship status or the harassment her daughter had faced.
On the evidence provided the Tribunal accepts that the applicants are lesbian woman and that they are in a long term committed relationship. The Tribunal also accepts that the applicants are Malay Muslims. Additionally, while Applicant 1 has not expressly raised claims regarding gender identity the Tribunal accepts that Applicant 1 has expressed that she prefers to adopt non-gender conforming dress and accepts that this is an expression of her sexuality.
The Australian Department of Foreign Affairs country information from June 2024 reports on the circumstances for LGBTIQ+ people in Malaysia. The material states that Malaysia is a conservative Islamic nation and generally intolerant of LGBTIQ+ people and behaviours.[2]
[2] DFAT, Country Information Report, Malaysia, June 2024,The country information describes the legal system and outlines the punishments that people engaging in LGBTIQ+ behaviours can be subject to. Penalties exist under criminal laws including in the Penal Code and under syariah laws which applies to Muslims. Punishments including being arrested, fined and/or subject to corporal punishment.[3]
[3] Ibid
The UK Home Office report on Sexual orientation and gender identity or expression, provides a list of officially reported prosecutions of charges for LGBTIQ+ based offending. However, the report also suggests that overall prosecutions of LGBTIQ+ people for
LGBTIQ+ related charges are rare when considered in the context of the overall population.[4] The report also indicates that certain LGBTIQ+ people, including Muslims, are at greater risk of prosecution.
[4] UK Home Office, Country Policy and Information Note, Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024,
ntation+and+gender+identity+or+expression.pdf
The Tribunal accepts that officially recorded prosecutions may be rare, however the applicants are in a committed same-sex relationship and Applicant 1 prefers to adopt a more masculine style of dress which could increase their overall visibility as members of the LGBTIQ+ community. The Tribunal also notes that both applicants are Malay Muslim and therefore at risk of facing penalties under both federal and syariah based laws, noting that DFAT reports punishments under syariah laws to be more common.[5]
[5] DFAT, Country Information Report, Malaysia, June 2024,DFAT reports on an event in 2018 where “a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010.”[6][7] Human Rights Watch reported that an official from Terengganu said that the caning was caried out in public to “serve as a lesson to society”.7
[6] DFAT, Country Information Report, Malaysia, June 2024, 7 “I Don’t Want to Change Myself”: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia | HRW, 10 August 2022, 8 Ibid
DFAT also reports that: “in-country sources reported there were four arrests of Muslim women for syariah offences over two months alone in early 2022.”8 The report also states that Malaysian Prime Ministers, including in 2023, have made anti-LGBTIQ+ statements and that there has not been any improvement for LGBTIQ+ people under the current government.
The Tribunal accepts on available country information that the rates of officially recorded prosecutions are not decreasing and finds that such punishments likely to continue for the reasonably foreseeable future based on official government statements. The Tribunal also finds that that punishments have been applied to serve as a deterrent and that due to the applicants being in a committed same-sex relationship they may be more likely to face charges as a deterrent to others.
Both the UK Home Office and the US Department of State reports that LGBTIQ+ people in Malaysia commonly faced violence, and that police on occasions had both committed and condoned attacks.9 The UK Home Office reports that state authorities, including police, have been responsible for harassment, discrimination and violence, including sexual and physical violence, towards LGBTIQ+ people. The applicants both described circumstances where, despite their overall discretion so as to avoid harm, they had faced negative community attitudes when seen in public together. The Tribunal accepts that the applicants were spat at on an occasion where they were holding hands and that Applicant 1 had faced threats because of her appearance, including threats of physical/sexual violence.
The Tribunal accepts that the applicants by and large avoided harm as they had kept their sexuality and relationship status private. The Tribunal accepts that the decision to keep their sexuality and relationship status private was a decision based on fears, and the Tribunal notes that since their arrival in Australia they claim to have been more open about their sexuality. Applicant 1 stated that since being in Australia she feels more “human”, and Applicant 2 stated that she feels “respected” and “free”, and she enjoys the company of LGBTIQ+ friends.
The Tribunal notes that the applicants had previously travelled outside of Malaysia, including to Australia, on one prior occasion, and that the Tribunal could draw an inference that such conduct may suggest that the applicants’ do not hold genuine fears of returning. However, the Tribunal accepts the Applicant 1’s claim that the circumstances for LGBITQ+ people have deteriorated in more recent years, noting that the DFAT report from 2024 indicates that people from the LGBTIQ+ community face a high risk of official discrimination[8], however the 2016 report indicated that the risk was moderate11. The Tribunal also notes that Applicant 2 has two children that remain in Malaysia. Accordingly, the Tribunal places little weight on any delay in seeking protection.
[8] DFAT, Country Information Report, Malaysia, June 2024, 11 DFAT, Country Information Report, Malaysia, July 2016.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. On the basis of the evidence and country information before the Tribunal, the Tribunal is satisfied that the applicants would face a real chance of harm if returned to Malaysia.
The Tribunal finds that the harm that the applicants are at risk of includes risk of arrest, detention and physical ill-treatment, including by the state and community, which constitutes serious harm for the purposes of s5J(5). The essential and significant reason for the harm is owing to their membership to the particular social group of Muslim LGBTIQ+ people in Malaysia. The Tribunal also accepts that the harm involves systematic and discriminatory conduct.
The Tribunal accepts that in some urban areas such as Kuala Lumpur, the community may be more tolerant of the LGBTIQ+ community, however the Tribunal finds that the aforementioned country information supports a finding that negative official and community attitudes towards LGBTIQ+ people are prevalent across all of Malaysia and LGBTIQ+ behaviours are criminalised, under both federal and syariah laws, nationwide. The Tribunal also finds that as Malay Muslim lesbian woman in a committed same-sex relationship, their profile makes them more susceptible to harm; as a result of this they cannot relocate to avoid harm and they face a real chance of persecution throughout Malaysia.
Given that the Tribunal has found that the risk of harm that the applicants are at risk of includes harm perpetrated by the state, the Tribunal finds that there is no effective protection available to them. The Tribunal also again notes the country information which suggests that law enforcement have condoned violence directed at and perpetrated violence towards LGBTIQ+ people, and that it would be unreasonable to expect LGBTIQ+ people to seek protection from authorities.[9]
[9] UK Home Office
The Tribunal cannot require the applicants to alter or conceal their sexual orientation or religious beliefs/practices. Accordingly, the Tribunal finds that there are no reasonable steps that the applicants could take to modify their behaviour to avoid persecution.
For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, both Applicant 1 and Applicant 2 satisfy the criterion set out in s 36(2)(a). As previously identified the Tribunal is satisfied that s 36(3) does not apply to the applicants.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that:
•(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
•(ii) the second named applicant meets s 36(2)(a) of the Migration Act.
Representative for the Applicants: Simone Cameron
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.
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.
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.
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.
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.
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
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.
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.
…
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.
…
[7] Country Reports on Human Rights Practices: Malaysia, United States Department of State,
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