1513345 (Refugee)

[2016] AATA 3299

1513345 (Refugee) [2016] AATA 3299 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513345

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sophia Panagiotidis

DATE:8 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 February 2016 at 12:27pm

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] June 2015.

3. The applicant appeared before the Tribunal on 3 February 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. 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.

6. 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 themself 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).

7. 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.  

8. 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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

10. The applicant is [an age] year old woman who was born Kuala Lumpar. She is separated and does not have children. The applicant arrived in Australia [in] November 2014 on a validly issued Malaysian passport and the Tribunal accepts the applicant is a Malaysian national and that Malaysia is the receiving country.

11. The applicant's claims as outlined in her application for the protection visa are summarised as follows:

    ·She left Malaysia because she “met a critical problem which brings a very strong impact on me. I have been paying bank loans and when the time is bad, my source of income has drastically gone down and it effects me badly. I bear with this for very long and finally, I took my decision to get loans from loan sharks and to my horror, I have no capabilities to repay the loan and the loan sharks have been trying to locate and threaten me. I am afraid that they might beat me and my life will be dangerous.”

    ·She did not try to move to another part of the country because if she moves to relatives or friends’ house, they will try to kill them also.

    ·The authorities cannot protect her because the police cannot be involved in this case as it is personal.

    ·If she relocates the loan shark will continue to try and find her in Malaysia and her life will be in danger.

12. The applicant told the Tribunal she has no family left in Malaysia apart from her sister’s children with whom she is no longer in touch as they are “useless”. The background to her involvement with loan sharks was that her sister who was quite a lot older than her became very ill due to [medical conditions] and became quite disabled. Her sister’s husband had died and she had no income. She had been living with her [children]. The applicant said that her sister required a lot of medical assistance and treatment and had sold her house in order to pay for this and to live. The applicant said that her sister’s [medical condition] was what caused her to take out the loan as by that stage she was little money left and her sister required an electric wheelchair. The applicant has provided the Tribunal with a copy of a death certificate which was not translated, however it indicates that the person named in this certificate had [medical conditions]. The date of death is noted as [a date in] May 2014.

13. The applicant initially borrowed [first loan amount] MR from a bank. The applicant provided the Tribunal with a copy of a letter from [a] Bank dated [in] March 2014 showing that the applicant was approved for a “[loan product]” it the amount of [amount close to first loan] MR at an interest rate of [rate] per cent. The applicant was asked how she managed to get approval for the loan and what she had used as security. She told the Tribunal that at that time there were a lot of calls being made by banks and finance companies offering low interest loans and they did not seem to care whether people were able to repay these or whether they were working. She made the application and to her surprise she was approved. The terms of the loan were that she was to repay [monthly amount] MR per month. She took the loan even though her monthly salary was [half the monthly amount] per month plus commission and she knew she would have problems making the repayments but she was desperate. At that stage she had been employed for four months as a [Occupation 1] for a [company] in Selangor and her annual salary was [salary amount] MR plus commission. It had taken her a long time to get that job even though she was qualified and prior to that she had been working as [Occupation 2]. She soon found herself being able to meet the repayments to the bank and she then approached a loan shark. When asked how she located the loan shark, she said there were stickers on bus stops with contact numbers. She approached one and she borrowed [second loan amount] MR, she was given [a smaller second loan amount] MR, [the difference amount] MR being deducted as the first repayment. Her repayments were supposed to be [second monthly amount] MR per month. She repaid the bank but then found she was unable to keep up with the repayments to the loan shark. She told the Tribunal she had signed a document when she took out the loan from the loan shark. She does not have a copy of this. She provided her car registration certificate as security (she estimated this was worth around [amount] MR) and a copy of her ID. When she left Malaysia, she left her car behind along with a number of possessions. She thinks that some of these may have been repossessed by the loan shark including her car but she was not sure.

14. The applicant told the Tribunal that as she was unable to keep up with the repayments, the loan shark sent people to her workplace and they threw red pain on the door and threatened her. She did not report the incident to the police as she believes they would not have bothered to investigate. As a result of these people coming to her workplace and causing damage she lost her job. She last worked [in] September 2014. After she was fired these loan sharks would call her at all hours of the day and night demanding money non-stop. This went on for few months. She tried to find work but was unable to find work that paid very much. She had no-one to ask to help her to repay the loan. She decided she had to leave the country. She had [amount] AUD when she arrived in Australia. The air fare cost her about [fare amount] AUD as this was a special promotional price so she took advantage of it. She told the Tribunal she had tried to find work in another city but was unsuccessful. The applicant said that she knew no-one in Australia when she arrived and so she bought a newspaper and looked at advertisements for work and she found work [in] [a town]. She has been working since she arrived in Australia and is currently working as a [Occupation 2]. She has managed to save about [amount] AUD and she intends to use this to repay the loan shark.

15. The applicant was asked what she believed would happen to her if she were to return to Malaysia. She said the loan shark will find her immediately and ask for their money. They have gangs and connections and they will find her. She was asked how they would know she had returned to Malaysia and she replied that she did not know. The Tribunal referred to country information which indicates that the Malaysian authorities have been making a concerted effort to address the problem of loan sharks and asked for her comment. The applicant believes that the authorities will say anything officially to show they are doing something about the problem but they are corrupt. The media is used to show they are making an effort but in reality the authorities are being paid off.

16. The applicant confirmed she has no remaining family in Malaysia apart from her sister’s children who are useless. She has terminated her relationship with them and they refused to help her sister when she was ill.

17. The applicant was asked why she cannot return to another part of Malaysia and she replied that she is afraid that the loan sharks will eventually find her. In addition she was unable to find a decent job the last time to keep up with the repayments and since then the loan has accumulated interest and she would be unable to pay it back. She said that even though she has been a blue collar worker in Australia she has contributed while she has been here and would continue to do that. She finds people in Australia to be good and do not look to take advantage of people.

18. Illegal money lending or loan sharking, colloquially known as ‘Ah Long’ in Malaysia, is an offense under Section 5(2) of the Moneylenders Act 1951. If prosecuted, a fine of not less than 20,000RM and not exceeding 100,000RM or imprisonment of up to five years can apply.[1]

    [1] ‘KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February CXBD6A0DE1580

19. In October 2013, The Sundaily reported that figures supplied by the Malaysian Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, showed that ‘The loan shark menace is worsening with Malaysians expected to be in debt by more than 40 million RM this year – compared to last year’s 39.5 million’. Loan sharks reportedly lent 34,400,000MR to financially-strapped Malaysians up to September 2013, and at the time of the article, ‘426 people were in debt to loan sharks, with each person owing an average of RM80,751’. According to Chong, ‘people continued to borrow from loan sharks despite continuous reminders by the authorities of the repercussions of doing so’. He also said that ‘of the 426 cases, 80% were by gamblers while the rest were drug abusers, failed businessmen and those living beyond their means’. Seven per cent or 32 people were reported to be repeat borrowers, and Chong said that ‘most of the repeat borrowers were involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks’. Chong also said that the ‘police were powerless against loan sharks as the transactions were on a “willing seller willing buyer” basis’. Police, however, ‘can take action if loan sharks resort to violence or extortion to recover their money’.[2]

    [2] ‘Loan shark menace worsens in M’sia’ 2013, The Sundaily, 2 October CX320169

20. Various media reports indicate that the practice of illegal money lending is widespread in Malaysia and that police operations targeting Ah Long are not uncommon. According to a Daily Express 22 April 2014 report, ‘police are tracking down member of unlicensed moneylending syndicates … through contact numbers printed in their advertisements, including flyers, posters, banners and business cards...’ The article notes that one of the most significant barriers to prosecuting Ah Long syndicate members is the ‘lack of cooperation from the public, especially those who had fallen victims to the syndicate’ (emphasis added). This problem stems from threats by syndicate members. Police in Perak made 88 arrests during an eight month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.[3]

    [3] ‘Police cooperate with Council to wipe out loan sharks’ 2013, Daily Express, 28 December CX320164 

21. Police action against the Ah Long includes a police operation in Kuching, conducted from 23 May 2014 to 23 June 2014, which reportedly resulted in 1,051 illegal advertisements and posters for illegal loans being removed in the 135 police raids conducted.[4] In April 2014, the police and local authorities in Penang ‘pulled down 238 banners and streamers promoting illegal moneylending’.[5] The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials.[6] Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 ‘posters, banners and name cards of illegal money lenders’.[7] Reportedly, ‘City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture’.[8]

    [4] ‘57% drop in commercial crime losses, say cops’ 2014, The Star Online, 2 July CX1B9ECAB11425

    [5] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April CX1B9ECAB11426 

    [6] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April CX1B9ECAB11426

    [7] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May CXBD6A0DE13537; ‘2,700 Ah Long materials removed’ 2015, Daily Express, 28 May CXBD6A0DE7469

    [8] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May CXBD6A0DE13537

22. Numerous media reports were located regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes. Police in Sabah reported that ‘16 men believed to be Ah Long members were arrested in 2013 compared to 12 arrested in 2012’ during Operation Vulture.[9] In 2013, Malacca police investigated 29 Ah Long related cases and arrested 20 people. Thirteen cases involved preventative measures with cases being ‘investigated under Section 5(2) of the Money Lenders Act 1951 for operating without a licence’.[10] Additionally, ‘four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.’[11] The Malaysian Digest reported on 16 October 2014 that ‘police rescued a 21-year-old after he was abducted by three men, believed to be loan sharks … One day after the incident, police apprehended a 24-year-old man and a 29 year-old woman … believed to be involved in the incident’.[12] The Malaysian Star reported on 29 May 2015 that two loan sharks were arrested during a police surveillance operation when collecting money from a victim. The arrested persons were wanted by police ‘for suspected involvement in several other cases of illegal moneylending in the district.’[13]

    [9] ‘Sabah Police probe nine Ah Long cases in 2013’ 2014, The Malaysian Times, 3 January CX1B9ECAB11427

    [10] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December CXC28129414704

    [11] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December CXC28129414704

    [12] ‘Police Free Man Abducted By Loan Sharks’, 2014, Malaysian Digest, 16 October CX1B9ECAB11430

    [13] ‘Loan sharks caught red-handed’ 2015, The Star Malaysia, 29 May CXBD6A0DE13543

23. The DFAT 2014 Country Report– Malaysia notes that while the Royal Malaysian Police (RMP) are considered ‘a professional and effective police force’ by ‘local and international sources,’ the integrity of RMP responses are compromised by the ‘level of training, capacity or engagement in corruption’:

    5.4 As of 2011, the RMP employed approximately 102,000 officers and operated 837 police stations across Malaysia. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see ‘Police Integrity and Accountability’, below). The RMP is 80–85 per cent ethnic Malay. In 2014, the Government commenced a campaign to increase the number of women, ethnic Chinese and Indians in the RMP.[14]

    [14] Department of Foreign Affairs and Trade (DFAT) 2014, DFAT Country Report – Malaysia, 3 December, Section: State Protection, p. 20 CIS2F827D91671

1. According to DFAT’s 2014 Country Report– Malaysia, ‘Malaysia’s Constitution provides for freedom of internal movement,’ and that citizens freely locate to various parts of the country for economic reasons:

   5.20 DFAT assesses that Malaysians can and do freely relocate internally. Individuals likely to attract official attention under state sharia-based law, including transgender individuals, women escaping violent husbands or Muslims wishing to marry a non-Muslim, often move to large urban centres to avoid attention. People also move to different parts of Malaysia for economic reasons.[15]

   [15] Department of Foreign Affairs and Trade (DFAT) 2014, DFAT Country Report – Malaysia, 3 December, Section: Internal Relocation, p.22 CIS2F827D91671 

2. The US Department of State USSD Country Reports on Human Rights Practices for 2014 – Malaysia report acknowledges the constitution provides internal movement, ‘although there were some restrictions, particularly with respect to the eastern states of Sabah and Sarawak:’

   Consistent with the 1963 agreement that incorporated Sabah and Sarawak into the country, these eastern states controlled immigration into their areas and required citizens from peninsular Malaysia and foreigners to present passports or national identity cards for entry.[16]

   [16] US Department of State 2015, Country Reports on Human Rights Practices for 2014 – Malaysia, 25 June section: D, p.16 OG2B06FAF115 

3. Freedom House reported in their Freedom in the World 2015: Malaysia report that ‘Citizens are generally free to travel within and outside of Malaysia, as well as to be employed in fields of their choosing.’[17]

   [17] Freedom House 2015, Freedom in the World 2015: Malaysia, May, section: G, p.6 NG5A1E6BC218

   Findings and reasons

4. The issue in this review is whether there is a real chance that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia, there is a real risk that she will suffer significant harm as outlined in s.36(2)(aa) of the Act.  

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

6. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[18] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant.

   [18] MIMA v Rajalingam (1999) 93 FCR 220

7. After discussing the country information with the applicant and her particular circumstances, the Tribunal accepts that she took out a loan, originally with a bank, evidence of which has been provided to the Tribunal and that failing to keep up with the repayments, the applicant applied for a loan through a loan shark. She was unable to keep up with the repayments and the Tribunal accepts that she was harassed and threatened and as a result of the loan shark’s actions the applicant lost her job. The applicant told the Tribunal that she tried finding work both in Kuala Lumpar and in another city but was unable to find a job that paid well. The Tribunal accepts that the applicant attempted to find alternative work but was unable to find a job which paid her a salary which was sufficient for her to continue the repayments to the loan shark.

8. The Tribunal applicant has stated in her written claims that she did not try to move to another part of the country because if she moved to a relatives or friend’s house the loan sharks will try to kill them. However, the Tribunal notes that the applicant's evidence at the hearing was that she is effectively estranged from any remaining relatives in Malaysia and did not try to relocate to another area in Malaysia in an effort to escape the harassment and threats from the loan sharks. The applicant also told the Tribunal that she did not approach the police for assistance. The Tribunal notes that while country information refers to the Malaysian police as a professional and effective police force, their responses can vary depending on training, capacity and indeed corruption. However the country information also indicates that the Malaysian authorities have been making a concerted effort to address the issue of loan sharks and depend on individuals reporting individual problems. According to the applicant's evidence she has not attempted to avail herself of protection by the authorities. In addition, according to the applicant's evidence she has not attempted to relocate although had made enquiries about finding work in other cities. Additionally, the applicant also told the Tribunal she did not know how the loan shark would know she had returned to Malaysia or how they would be able to find her if she did return.

9. Based on the country information, the Tribunal does not accept that the Malaysian authorities will refuse to assist the applicant if she were to be further harassed or threatened by the loan sharks. The country information indicates that the police have taken considerable action to address this issue throughout Malaysia. In relation to the applicant's return to Malaysia, the Tribunal does not accept that the loan shark will be aware that she has returned or would be able to locate her given the passage of time since she departed Malaysia in November 2014. The Tribunal is not satisfied there is a real chance that she would be traced or found should she safely relocate within Malaysia.

10. In relation as to whether it would be reasonable to relocate, the Tribunal notes that the applicant's evidence is that she has no relatives apart from those from whom she is estranged in Kuala Lumpur. The Tribunal also notes she managed to travel to Australia without support and has found work throughout the period she has been here. The Tribunal is not satisfied that she could not reasonably do the same should she return to Malaysia.

11. The applicant has also claimed that she was unable to find a good job in Malaysia which is one of the main reasons she departed. However the Tribunal notes that DFAT advises:

    2.3 Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy, with real GDP growth in 2013 of 4.7 per cent, following growth in 2012 of 5.6 per cent. Since independence, Malaysia has been transformed from a commodity-based economy, focused on rubber and tin, to a leading producer of electronic parts and electrical products and exporter of palm oil, oil and gas. Manufactured goods made up 67 per cent of Malaysia’s exports in 2012.

12. The applicant has provided the Tribunal with copies of various certificates which show she has qualifications in [occupation] and [occupation] and has worked in [Occupation 1]. Based on the country information the Tribunal is satisfied that the applicant could seek work commensurate with her skills should she relocate to Malaysia.

13. For the above reasons the Tribunal is satisfied that the applicant may safely and reasonably relocate within Malaysia.

14. Overall, in considering the applicant's claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution as required by s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1) of the act. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm now or in the foreseeable future.

15. 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).

16. 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).

17. 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

18. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Sophia Panagiotidis
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …