2212462 (Refugee)

2212462 (Refugee) [2023] AATA 1035 (27 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Abu Siddique
CASE NUMBER:  2212462
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Rodger Shanahan
DATE:27 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 January 2023 at 11:58am
CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – fear of harm from bullies, drug gangs and police – late claims of being pressured into drug dealing, and arranged marriage – mental health – credibility – delay in applying for protection – inconsistent claims and evidence – ongoing work despite claim of isolating to avoid harm – no mental health treatment sought and minimal medical evidence provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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 Immigration and Border Protection on 11 July 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 2 June 2016.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 17 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay 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.
Claims and evidence
Protection Visa Application
As part of his protection visa application the applicant made the following claim:
The reason why I leave my country because I was a bully victim. I always get bullied since I was in high school. By the time I am 22 I get depression and always want to suicide. The second reason why I leave my country is because I feel so insecure because when I want to go outside my house I feel so afraid that I will get hit by people who always beat me since high school. And because of that I cannot go to work. And stay at home alone in my room locked. I feel so scared and feel like dying.
If I go back to Malaysia all the people that beat me will beat me again until death. If I back to Malaysia I will not recover my depression and will get myself killed. They broked my [Body part] and the scar still there. I feel so embarrassed to tell they always touched my penis. They also snap pictures of my penis…they blackmailed me if I tell about it. They will post it in [Social media] and go viral and my sickness get more worse.
AAT Hearing
The applicant stated that he knew everything in his protection visa, that it was true and correct and that he had filled it out himself. He had been asked to provide medical evidence about his mental health treatment to support his claim about suffering from depression and feeling suicidal prior to leaving Malaysia. He stated that he hadn’t sought any treatment since being in Australia.
He claimed that he saw a doctor recently and tried to have a healthy lifestyle. He saw a doctor in the last few weeks and had forwarded a letter from a doctor. The adviser said he had been provided a letter by the applicant and the applicant said when asked, that he sent the letter to the lawyer because he didn’t know how to send it to the Tribunal.
The adviser was asked when the latter was written and what it said. He advised the letter was dated 9 January 2023 (the applicant agreed it was dated two days after he had been asked by the Tribunal to provide medical evidence). It said that the applicant said the applicant stated he had been suffering from a major depressive disorder but he had been suffering in silence for two years but had been treating it by researching it online and with the help of his friends.
It was put to him that the timing of this letter was suspicious given he had been asked to provide evidence of his mental health treatment for the last six years in Australia and after being asked he went to a GP and received a letter saying the applicant self-reported suffering a major depressive disorder. The GP was not aware the applicant was applying for a protection visa at the time he presented. The applicant had not told the GP why he was requesting the letter and the doctor simply repeated what the applicant told him so it was unlikely the Tribunal could give it any weight. He claimed that he told the doctor he needed the letter for immigration purposes and the applicant said that he tried to avoid doctors by living a healthy lifestyle. He was asked of there were any medical reasons why he couldn’t attend today and he said that there wasn’t.
He had worked since being in Australia as [an Occupation 1] and now as [an Occupation 2] and was going to TAFE. His alleged mental health condition had not stopped him from working. He claimed that if he returned to Malaysia he had been involved in bullying. Asked to be clearer about his claim, he said that he was involved in the drug scheme and he would be bullied by the police. Asked about his involvement in drugs, he claimed that in Malaysia he was involved in drugs and the police had threatened him with prison unless he gave them a bribe.
Asked about what harm would happen to him on return to Malaysia, he said he would be bullied and assaulted. Asked what he meant by bullying, he said that the gangs were big and strong and the police were involved in the gangs. Asked what would happen to him, he claimed that he may be assaulted or killed by the gang members as he had tried to tell the police about their activities. The police may assault him.
The gang may assault or kill him because he was no longer interested in being involved with the gang activities and no longer wanted to give money to the police to release him if he had done anything wrong (with the gangs).
Asked about his involvement with the gangs and the police, he claimed that he was pushed to be a drug dealer by the gang. This was in [Year 3] until [Year 5]. He sold drugs for the gang because they threatened him with harm if he didn’t. He was arrested by the police once over drugs in early [Year 5] – he had brought the drugs to a place and was caught. The police told him to pay them money or they would take him to court. He then told the police the truth about what happened – that he wasn’t involved in drugs but had been pushed by the gang to do so.
After he paid the police, the police caught one gang member. The gang then tried to find him but he ran away. Asked what he meant, he said he ran away in case the gang thought he had told the police. He ran from his home town to the city. He moved to Kuala Lumpur (KL) from Malacca. This was in [Year 5], about a month after he could no longer hide in Malacca. Asked when this was, he said it was March [Year 5]. KL is about two hours from his home.
Asked if anything happened before he left Malaysia, he said that he felt unsafe and in KL he lived in a very bad environment. Asked if he lived in KL until he came to Australia, he said that he did. Asked why he came to Australia, he said he tried to find a better, new life. He worked as [an Occupation 3] in KL. It was put to him that he said he worked in Malacca as [an Occupation 3] but not KL. He said that he hadn’t mentioned the KL work in his protection visa application.
Asked if he had mentioned any of the claim he made today in his protection visa application, he said that he hadn’t. It was put to him that he had made this claim today involving a drug gang but had never mentioned this previously. He said that he didn’t mention it previously because he didn’t want to give his country a bad name by saying it was a bad place. It was put to him that he was claiming protection from his own country authorities. He said at the time he couldn’t think about these things.
Asked if he mentioned previously that he had lived in KL from March [Year 5] until he left, he said he couldn’t remember clearly as it was a long time ago. It was put to him that he hadn’t mentioned this previously and he had been asked at the start of the hearing whether he knew everything his application and it was true and correct and he said he agreed. He said that what he said now was true and correct.
It was put to him that he had said that his written application he had claimed was true and correct. He said that he wanted to tell the truth now. It was put to him that he was expected to tell the truth all the time. He said he understood. It was put to him that he had said that in his application that he was so afraid to go outside that he could not work. He said this was true. It was put to him that he had said he had previously claimed that he had worked as [an Occupation 4] and then [an Occupation 3] from [Year 4] to 2016 which would indicate he did work. He agreed.
It was put to him that he claimed to be locked in his room unable to work, but also that he worked and that he was also a drug pusher. This all seemed inconsistent with each other. He claimed that he isolated himself in his room when he believed he had done something wrong and tried to avoid bad people. It was put to him that this didn’t make sense. The story about being locked in his room was inconsistent with his claims to be working (written claim) and a drug pusher (oral claim). He said when he was sick he didn’t go to work – it was put to him that he said he stayed inside in a locked room and was asked how long this lasted. He said this lasted a few months. Asked when this was, he said that he couldn’t remember as he tried to forget bad things.
He was also asked about another claim in which he stated that people would post pictures of his penis on [Social media] and he would get sicker as a result. He was asked if this had happened. He said the gang had taken these photos. Asked what the gang was blackmailing him about and whether it had occurred, he claimed that he had told the police about their activities. He was asked if the gang had carried out their threat given he claimed that he had told the police about their activities, he said he was unsure if they had done it. It was put to him that he claimed it would go viral and he would be sick because of it. He said that he didn’t know but it may not be on line. He knew it wasn’t viral.
Asked when he arrived in Australia and applied for protection, he said he arrived in 2016 but couldn’t remember the month. It was put to him that he arrived in March 2016 and applied in June and was asked why it took him so long given he had to flee to KL and the police were after him. This delay raised concerns in the Tribunal’s mind. He said he wasn’t aware of protection in Australia – asked why he came to Australia rather than some other country, he claimed that he talked to someone about the visa when he came to Australia. He wanted to study here. Asked why he didn’t apply for a student visa, he claimed that someone suggested this visa to him.
Asked if he wanted to raise any other issues, he claimed that he had something that was personal and didn’t know if it would help. He said his family was asking to arrange a marriage for him and he had refused so they didn’t want him in the family any more. Asked if there was serious harm involved he said there wasn’t. Asked if he was making a claim for protection based on this, he said that this was all and that he was not making a claim regarding this issue.
He was advised the Tribunal had major concerns regarding his truthfulness given the disparity between his written and oral claims. His residential history was also different as were his claims surrounding his ability to work, the sexual assault and pictures of his penis. There no evidence this had occurred, let alone that the pictures had gone viral. He said that he had also made serious claims regarding his mental health difficulties since 2016 and when asked for evidence of any treatment in Australia, it was only then that he went to a GP about a history of mental health problems without presenting evidence of this. This raised serious concerns that the only reason he went to the GP was because he had been asked for evidence and had not told the doctor the truth. He said that he was telling the truth. It was put to him that his claim about being forced into marriage also relied solely on his oral claim and his credibility was already an issue to the Tribunal.
CONSIDERATION OF Claims and evidence
The applicant arrived in Australia on a visitor’s visa [in] March 2016. He applied for a protection visa on 2 June 2016. The Tribunal sighted his Malaysian passport as proof of his identity and his claim will be assessed accordingly.
The applicant is a [Age] year-old Malaysian. He claimed that if he returned to Malaysia that people would bully and beat him as they had done since high school, perhaps to death, and that he may be killed by drug gangs he had worked for because he had told the police about them, or by the police themselves.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
In his written claim the applicant stated that he was depressed since the age of [Age] (2016) and always wanted to suicide. This is a serious medical claim and the Tribunal wrote to him asking that prior to the hearing he make available his medical records in Australia so the Tribunal could better understand his mental health condition. No evidence was provided prior to the hearing, however at hearing his adviser read out a letter from a GP that said the applicant self-reported conditions that the GP said were symptoms of a Major Depressive Disorder, that the applicant had ‘suffered in silence’ for two years and had coped through online research and with the help of friends.
The letter was written three days after the evidence of his mental health treatment had been requested by the Tribunal. The applicant has worked since being in Australia, is currently attending TAFE and has never presented for any mental health treatment in the six and a half years since being in Australia until he was requested to provide proof of his claim to have suffered from depression in Malaysia so severe that he couldn’t leave his room.
The Tribunal has concerns that the applicant suffers from no mental health ailment and simply reported symptoms to a GP to get a letter when he realised he would have to provide some medical evidence. Regardless, the applicant was asked if he was able to attend the hearing and he said that he was. I am satisfied that there is no medical reason for the inconsistencies in his claim, and that given he has not required any mental health treatment in the six years since he arrived in Australia he would not require any on return to Malaysia.
Overall, I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness.
Credibility
There were several inconsistencies in the applicant’s claims that go to the issue of his credibility. At the start of the hearing the applicant was asked if he had filled the application out himself and whether he knew the information contained in it, and that it was all true and correct. He answered in the positive to all of these statements.
Some of the inconsistencies are as follows:
a.At hearing he claimed that he ran away to KL in March [Year 5] and worked there as [an Occupation 3] until he came to Australia. Yet in his written claim he never mentioned living or working in KL and stated that he lived in Malacca from January [Year 2] until March 2016, and that he worked as [an Occupation 3] in Malacca from April [Year 4] until March 2016. I do not accept that he was unable to remember because it was a long time ago, particularly given the fact that he was asked and replied that he knew everything in his written claim and that it was all true and correct;
b.This unbroken period of work (as well as a claim that he worked as [an Occupation 3] from November [Year 1] until April [Year 4]) is also inconsistent with his claim that his depression was so bad that couldn’t go to work and that he locked himself in his room for a few months but couldn’t remember when because he tried to block out bad things. The Tribunal does not accept that the applicant has any history of mental health issues and, given he also said that the written claim was true and correct, I am not satisfied that his claim to have failed to remember is true; and
c.At his hearing he introduced a claim to have been a drug pusher who paid bribes to the police not to go to jail, then told the police about the drug gang who then targeted him because of this. He had never made such a claim in his written application. I do not accept that he failed to do so because he didn’t want to bring his country into disrepute and that he was telling the truth at the hearing. He knew that he was expected to tell the truth in his original claim and yet failed to do so, so it is difficult to give him credit for deciding to do so later. It also makes no sense why he would decide that he needed to protect the reputation of Malaysia in a confidential claim for protection at least part of which involved Malaysian authorities persecuting him. Because I do not accept that he was ever involved with a drug gang and came to the attention of the police because of it, I also do not accept that he would be bullied or assaulted by the police;
Claims

I do not accept that the applicant was ever a member of a drug gang, that he was ever arrested by the police, paid them a bribe and then later told them about the gang. The claim relies entirely on his oral evidence which I have found lacks credibility, and the claim was made only at hearing and not in his original written claim. It is reasonable to believe that given the seriousness of such a claim that it would have been the first reason for his claim for protection in Australia. Because I do not accept that he was involved in drug gangs or with the police, I do not accept that the gangs or the police would assault or kill him.
I also do not accept that the applicant had naked photos taken of him that would be put on social media. He raised this in his initial written claim and in his oral claim he said that the gangs had taken them and were blackmailing him so he didn’t tell the police about them. Yet despite the fact that the applicant said he had told the police about them, there is no evidence that they have appeared on social media, let alone gone viral. In the absence of any evidence the claim relies entirely in his oral evidence which I have found lacks credibility.
I do not accept that the applicant has been bullied since high school and that the people who did this would continue to assault him and perhaps kill him, that he had suffered depression because of it and had to lock himself in his room as he was too afraid to go outside or work. I have already raised my concerns regarding his mental health claims previously, and his claim about being bullied was different to that he raised at hearing. Again, the claim relies on his oral evidence alone and accepting that he suffered depression because of it. The Tribunal has formed an adverse view of his credibility and he has offered no supporting evidence regarding his mental health issues – the claim is also inconsistent with his work record set out in his written application, which was noted previously.
For completeness’ sake I also do not accept that he has refused a marriage arranged by his family and that they have disowned him as a result. To begin with, he stated that he did not believe that it would result in serious harm and was not therefore a claim. Once again no evidence was provided in support of it and, given it relies entirely in his oral evidence the Tribunal once again does not accept it is truthful.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.
Complementary Protection
Because I do not accept that the applicant was ever a member of a drug gang, paid bribes to the police or was wanted by either the police or a drug gang, that he was ever bullied and beaten since high school, that he suffered depression in Malaysia because of it, or that he had refused a marriage arranged by his family, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims.
I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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.
…

[2023] AATA 1035

27 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction