2217329 (Refugee)

2217329 (Refugee) [2024] AATA 1788 (20 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2217329
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Denny Hughes
DATE:20 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 March 2024 at 4:28pm

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – did not experience harm in his country – no fears or concerns in relation to his ex-wife – general economic conditions do not amount to persecution – economic disadvantage does not amount to serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 Home Affairs on 23 November 2022 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 1 August 2022. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for grant of a protection visa.
The applicant appeared before the Tribunal on 29 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CLAIMS AND EVIDENCE
In the visa application, the applicant made the following claims:
·He left Malaysia after quitting his job as a [occupation] due to the extremely high economic decline of his daily life. He could not afford to support his family’s daily life. He was determined to leave his country and find a better life outside to fix his poor financial management problems.
·He came to Australia because he believed there were jobs available here and it was worth the effort to improve his financial problems. He also believed it was a safe place to start a new life and have lots of job opportunities. He would be able to gradually recover from the poor financial management he is facing and also help to finance his family’s life as usual.
·If he returns to his home country, he will have difficulty finding job opportunities. He cannot afford do so this and it would re-establish the problems he had, and he will have multiple difficulties if he had to again hold the burdens he is responsible for.
·The authorities of his country will not be able to help people who have problems like his because this is a personal problem and protection is not provided.
·He would not have any problems if he gets a chance to stay here (in Australia), because it is a very safe and exciting place to start a new life.
The visa application form also included several yes/no questions. The applicant indicated the following answers to those questions:
·No, he did not experience harm in his country.
·No, he did not move, or try to move, to another part of that country to seek safety.
·No, he does not think he will be harmed or mistreated if he returns to that country.
·No, he does not think the authorities can and will protect him if he goes back.
·No, he would be able to relocate within the country to an area where he would not be harmed.
At the hearing, the Tribunal provided the following evidence about his identity and background:
·His family is all in Malaysia. His father is elderly and unwell. His wife has divorced him because he could not make enough money in Australia. His sister is looking after his father and his two daughters.
·He worked as a [occupation] in Malaysia for three years before coming to Australia. He did all types of manual work in Malaysia, including as [deleted].
·He had tried to live in other areas of Malaysia for work, but the living expenses were too high and he returned to live in his hometown.
·He has always been a person who supported his family. In Malaysia, he was under a lot of pressure. He was worried all the time that he had done something wrong. He was continuously fighting with his ex-wife. Every time he would fight with his wife, he would feel really stressful and anxious. And he had the idea of coming to Australia for work.
·At the time he left Malaysia his daughters were [age] years old. It was too expensive to buy them [a specified food], so he decided to come to Australia.
·He is working in Australia on a farm. He sends money back to his family, but sometimes he does not have work and is unable to send money back.
·He does not own his own property. It is under his father’s name. He sold all his other assets when his daughters were born.
·He knew other people that had come to Australia for work.
·His father and elder sister gathered money to support him to come to Australia.
·He was assisted in the preparation of his visa application, but he confirmed the details of that application.
The applicant provided the following information about his claims and fears on return to Malaysia:
·He was never harmed in Malaysia. He does not fear that he would be harmed if he returns to Malaysia. In terms of his ex-wife, he does not fear anything in relation to her either. They are divorced and now she has another family.
·If he returns to Malaysia, his daughters are in their teens. He would also have to support his elderly father. His sister works, but does not make much money. He is the breadwinner. If he returns to Malaysia, he will face financial hardship as he cannot support his family.
·He is getting old and no longer a young labourer. He said in Malaysia, no one will employ a person at his age of [age] years old. The bosses in Malaysia prefer to hire people who are young and strong physically. It is difficult because he is getting old and slow at doing everything.
·He had called his friends, and asked whether his old job is still available, but nowadays the roles are all filled with younger people. His friends at the same age in Malaysia find it difficult to get a job. They can only do simple jobs, such as picking up fruit from durian trees.
·He had spoken to his father recently who described the economic position in the country as terrible, and that the exchange rate with the US dollar was not good. He previously could buy a bag of rice for 30 RM, but now it costs around 45 RM.
At the conclusion of the hearing, the Tribunal indicated to the applicant that if he had any further information he wanted to provide to the Tribunal after the hearing, he could do so. As at the time of the decision, the applicant has not contacted the Tribunal or provided any further information.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant has provided a copy of his Malaysian passport and consistently claimed to be from Malaysia. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a national of Malaysia.
There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal finds that Malaysia is his receiving country and has assessed his claims against that country.
Claims related to Malaysia
In his protection visa application, the applicant detailed his claims, which related to his difficult economic situation in Malaysia. He claimed he was not able to support his family and his economic position was in decline. He considered it was better to leave the country and try to solve his financial problems in Australia. If he is returned home, he fears he will have difficulty finding work, supporting his family, and meeting his financial responsibilities and his difficulties will return. The applicant indicated in the visa application that he had not experienced harm in the past, and he did not fear harm on return to Malaysia. He indicated that the authorities would not help because his concerns are of a personal nature.
The applicant confirmed during the hearing that the protection visa application was prepared with the assistance of a friend, but the contents were correct. The Tribunal is satisfied the written application accurately reflects his claims.
In the course of the hearing, the applicant discussed his elderly and ailing father, who the applicant is responsible for. He claims that his ex-wife now has another family and he is responsible for his daughters. He confirmed he had no fears or concerns in relation to his ex-wife. His sister helps with his daughters and also works, but he claims she had been unable to earn enough on her own to provide for the family. The applicant indicated he worked in a range of manual roles in the past in Malaysia, most recently as a [occupation].
The Tribunal found the applicant’s evidence to be plausible and credible. The Tribunal accepts that the applicant has been in a difficult position economically in Malaysia, and that he has a range of financial and other family responsibilities in the country.
Based on his evidence, the Tribunal accepts the applicant and his family are not in a strong position economically in Malaysia, however the Tribunal is also satisfied the applicant and his family were able to more than just subsist in the country. The applicant has been regularly employed in Malaysia, and he has been able to maintain a stable residence, and support his daughters and father. His sister provides additional support to the family, assisting with his daughters, and while her income is low it is also the case that she is employed. While the Tribunal accepts they have been in a difficult economic position, the Tribunal does not accept his claim that he could no longer afford to support his family.
The applicant was clear in his written and oral evidence that he has not experienced harm in Malaysia in the past, nor did he specifically fear harm in the future. The Tribunal has considered the situation for the applicant on return to Malaysia below, but for clarity the Tribunal is satisfied the applicant never experienced harm in the past in Malaysia, nor does he fear harm in the future. To the extent he has fears on return to Malaysia, they Tribunal finds his fears relate to his economic situation in Malaysia – i.e. finding employment, supporting his family and meeting his financial responsibilities. The Tribunal is satisfied that he has no other protection claims or fears on return to Malaysia.
Return to Malaysia
On return to Malaysia, the Tribunal accepts the applicant would again be the breadwinner for his family, that he would need to look after his elderly and ailing father and support his daughters. The Tribunal is satisfied from his evidence that he has a place to live with his family and finds that he would continue to have the mutual support of his sister, as he has in the past. Given their divorce, the Tribunal finds he would no longer have the pressure of fighting with his ex-wife.
In the course of the hearing, the Tribunal asked the applicant why he believed his economic position in Malaysia is so difficult. The applicant said he is getting old and he is no longer a young labourer. He said in Malaysia, no one will employ a person at his age of [age] years old.
The applicant had worked up until he left Malaysia as a [occupation]. At the hearing, the applicant said he had called to ask whether he could do this work again, but it was not available. He said employers in Malaysia would definitely hire someone who is younger and strong physically. He said it is difficult because he is getting old and slow at doing everything. And his friends at the same age in Malaysia find it difficult to get a job. They can only do simple jobs, such as picking up fruit from Durian trees.
The Tribunal accepts the applicant may face difficulty obtaining certain work in the future, but it does not consider his difficulty in accessing manual labour work at his age is necessarily discriminatory. Instead it may simply be an indication that he is less suitable for those roles as he gets older. Even if there is an element of discrimination, the Tribunal is not satisfied there is any intention to deny him work or an ability to make a living in a general sense, or that the discrimination is at a level where he would be unable to find work and make a living.
While the Tribunal accepts that his age may be a factor in terms of employment in manual labour, the Tribunal is not satisfied and does not accept this would prevent him from finding other work altogether, such as in [occupation] or other work, where his age and physicality would be less of an issue and may in fact be an asset. The Tribunal notes there is no contention he was fired from his previous role as a [occupation], instead he had elected to quit that work before he came to Australia. The country information discussed below indicates that the unemployment rate has continued to decrease in the post-endemic economic environment in Malaysia. While he is older and his past role may no longer be available to him, the Tribunal is not satisfied and does not accept he would be denied employment, or unable to find employment on return to Malaysia because of his age or any other related reasons.
The Tribunal has also had regard to country advice about support mechanisms in Malaysia. The country advice indicates the Malaysian Government provides some degree of financial support for the elderly (those above 60) and the economically disadvantaged. The report also indicates the potential introduction of employment benefits. In addition, the Malaysian Government offered various welfare payments during the pandemic.[1]
[1] DFAT, Country Information report – Malaysia, 29 June 2021.
At the hearing, the applicant expressed some scepticism as whether unemployment benefits are available in Malaysia, or whether he would be able to access any of the welfare support mechanisms available, and whether it would be adequate – he stated that it was very limited, only 200 RM per week, which he considered would not be enough.
The Tribunal acknowledges the applicant’s concerns about the availability and adequacy of these support mechanisms. Given the applicant is in his early [age], the Tribunal accepts he may not yet be eligible to access support payments based on his current age. However, the Tribunal is satisfied that there are support mechanisms available in Malaysia to assist people to live and subsist in the country. And that the applicant may be able to draw on these support mechanisms in the future when he gets older and is less able to work.
The Tribunal considers the applicant would be able to find work and would not need the assistance of government support mechanisms in the reasonably foreseeable future. However, the Tribunal does consider the welfare and other support mechanisms provided by the Malaysian Government to be a further indication that there is no intention to discriminate or deny the applicant an ability to work or subsist in the country because of his age, economic position or on any related basis, and that the government is in fact looking to support its aged and other vulnerable populations.
A further consideration raised by the applicant related to overall economy and the cost of living. He claimed that he had spoken to his father recently, who told him the economic situation in Malaysia is terrible. He said the exchange rate is 1 USD to 4.5 Malaysian Ringgit (MR). He claimed if he wanted to purchase a bag of rice it would cost him 30 MR, but now he would need 45 MR to purchase it. In the visa application, he also discussed concerns about the cost of baby formula.
The Tribunal discussed information about the economic situation with the applicant at the hearing. The country advice before the Tribunal indicates that Malaysia is a strong economy, albeit one that was impacted by the pandemic. One of those impacts was a rise in unemployment.[2] More recent advice indicates that the country has to some extent rebounded from the pandemic, and the unemployment rate in Malaysia has reduced, as have costs of living pressures. The World Bank indicates that overall labour market conditions in Malaysia continue to improve and are returning to pre-pandemic levels.[3]
[2] DFAT, Country Information report – Malaysia, 29 June 2021.
[3] World Bank, 'Raising the Tide, Lifting All Boats', Malaysian Economic Monitor, October 2023.

The Tribunal accepts there are inflationary and cost of living pressures in Malaysia, but it is not satisfied and does not accept that the cost of living pressures in Malaysia would constitute or give rise to harm of itself, or that it is at such a level that it would prevent the applicant and his family from subsisting. There is also nothing before the Tribunal to indicate that there is any discrimination or intention on the part of the Malaysian Government to make goods more expensive for the applicant compared against anyone else. When this was put to the applicant during the hearing, he agreed.
At the hearing, the Tribunal explained the protection visa criteria, including the concepts of serious harm and significant harm. The Tribunal indicated to the applicant that while it appeared his situation on return to Malaysia was a difficult one, it was concerned he may not satisfy the refugee or complementary protection criteria, in particular as it related to serious harm and significant harm.
The applicant indicated he understood the Tribunal’s concerns. He explained that he knows that he may not be protected in Australia, but reiterated his financial difficulties in returning to Malaysia. He asked for an opportunity to stay in Australia for another one or two years, so that he can make extra money and then return back to Malaysia.
The Tribunal explained to the applicant the consideration before it relates to the refugee and complementary protection criteria, and that the Tribunal did not have any discretion to enable him to remain in the country for one or two years in order to better his economic position. The applicant indicated he understood. Later in the hearing when discussing whether he met the criteria, he explained that for people like him, that come from Malaysia, they just want to work to earn some money to support their family.
Looking to all the circumstances, the Tribunal is again satisfied the applicant was not harmed in the past and does not fear harm on return to Malaysia. The Tribunal accepts that a future return to Malaysia would present challenges for the applicant, however it is satisfied the applicant would again be able to find work and earn a livelihood, and support himself and his family, as he has in the past.
As discussed above, the Tribunal has had regard to the economic situation in the country. While the Malaysian economy was impacted by the pandemic, the Tribunal finds that the country’s economy is recovering – unemployment is declining and other economic pressures are easing.
While the Tribunal accepts that certain types of work may no longer be available to him as he gets older, the Tribunal is not satisfied and does not accept that he would be unable to again find work in [Malaysia]. The Tribunal does not accept he would be denied access to work altogether or a means of making a living because of his age or for any other reason. The Tribunal is also satisfied the applicant will have access to accommodation and that as he is working, he will be able to access any services he and his family may require.
In all the circumstances, the Tribunal does not consider the applicant (or his family) would face economic hardship or be denied the capacity to subsist or earn a livelihood, or that the economic situation he and his family would experience would give rise to or constitute harm or serious harm in any sense. The Tribunal also considers the economic situation he may face on return to the country would not constitute or result in cruel or inhuman treatment or punishment, or degrading treatment or punishment, or otherwise constitute or give rise to significant harm as defined in the Act.
In view of everything before it, The Tribunal is satisfied there is no real chance of the applicant facing serious harm for any of the reasons claims, if he returned to Malaysia now or in the reasonably foreseeable future. The Tribunal is also satisfied there is not a real risk of the applicant facing significant harm, as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no claim or 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.
Denny Hughes
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 1788

20 March 2024

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