1606460 (Refugee)

[2017] AATA 1831

1606460 (Refugee) [2017] AATA 1831 (9 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606460

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Amanda Paxton

DATE:9 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 09 October 2017 at 9:56am

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – Debtor to Ah Long – Credibility Issues

LEGISLATION

Migration Act 1958, ss 5H-LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Prasad v MIEA (1985) 6 FCR 155
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

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] April 2016 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, arrived in Australia [in] January 2016 and applied for the visa [in] March 2016. The delegate refused to grant the visa on the basis that she was not satisfied the applicant was a person to whom Australia owed protection.

3. The applicant appeared before the Tribunal on 12 September 2017 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

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 issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Credibility

11. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility[1].  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482

12. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant[2].  For the reasons set out below, the Tribunal has formed the view that some parts of the applicant’s evidence should not be accepted.

    Country of nationality

    [2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

13. The applicant claims to be a citizen of Malaysia, and provided a copy of his Malaysian passport to the Department, and brought his passport to the Tribunal hearing. The Tribunal is satisfied on the basis of this evidence that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is the country of reference for the purposes of assessing the applicant’s claims under ss. 36(2)(a) and (aa).

    Third country protection

14. On the evidence before it, the Tribunal is also satisfied that, for the purposes of s.36(3) of the Act, the applicant does not have a right to enter and reside in a third country.

    The applicant’s personal background

15. The Tribunal accepts the evidence of the applicant at hearing and consistent with his written application that he was [born] in Kelantan, Malaysia, is of Malay ethnicity and Muslim. The Tribunal accepts the applicant’s father has passed away, that he supports his mother in Malaysia who is no longer able to work because she had a [medical condition] and that he has [a] sister.

16. The Tribunal accepts the applicant’s oral evidence that he completed [school] in Kelantan, before undertaking [a course], and working [in] Kelantan. The Tribunal accepts the applicant’s oral evidence that he moved to Kuala Lumpur to work [in] 2015 before coming to Australia where he has been working part time in [other work].

    Claims made in the protection visa application

17. In his protection visa application, the applicant claims his income in Malaysia was not promising and for this reason he sought work in Australia; that an agent promised him work in Australia and a visa to enable him to work legally. He states he will be mistreated in Malaysia because he borrowed cash from a money launderer in Malaysia and he is unable to repay the money.

    Claims and evidence at hearing

18. The applicant told the Tribunal that he completed the visa application himself using a translation application and that his written statement of claims is correct.

19. The applicant told the Tribunal he came to Australia to obtain a job with better pay to enable him to better support his family. He said that he was promised a high paying job in Australia with a good salary, transport, a place to stay and a working visa. He stated that he believed the agent because he did not know otherwise, and has been disappointed because he spent RM[amount] in order to come to Australia, money that otherwise would have been used to take care of his family and especially his mother. He wishes to remain in Australia to provide for his family.

20. At hearing, the applicant further claimed that before his mother’s [medical condition] he had taken out a loan of RM [amount] from a money lender, Ah Long, to renovate the family home which was dilapidated, but when his mother fell ill the family had hospital bills to pay and they were not able to make loan repayments. He claimed that, as a consequence, the Ah Long rang the applicant and threatened him, saying that he was looking for him and will kill him. He claimed he moved from one state to another to evade the Ah Long. The applicant claimed the Ah Long will keep looking for him and he will not be safe and will not be able to look after his mother.

    Assessment of claims

    Employment and economic issues

21. The Tribunal has considered the applicant's claim that he came to Australia to work to obtain a better income to support his family. The Tribunal accepts the applicant wants to work in Australia to support his family, especially his sick mother. In considering whether the applicant will experience economic hardship on return to Malaysia, the Tribunal has taken account of the following country information, discussed with the applicant, from the Department of Foreign Affairs and Trade (DFAT) relevant to the economic environment in Malaysia:

    ·Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy. In 2015 its GDP growth was five per cent and per capita GDP was over USD11, 000. Since independence, Malaysia has 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 76 per cent of Malaysia's exports in 2012. Malaysia is ASEAN's largest energy exporter and the government's largest revenue source comes from the state-owned oil company Petronas. The 2015-2016 drop in oil price has negatively affected government revenues. Economic growth in 2016 is predicted to be 4 to 5 per cent.

    ·Malaysia's economic growth has led to a significant reduction in poverty with the share of households living below the national poverty line (USD8.50 per day in 2012) falling from over 50 per cent in the 1960s to 0.28 per cent in 2016.

    ·In December 2015, the Malaysian Department of Statistics reported a labour force participation rate of 67.8 per cent and an unemployment rate of 3.3 per cent. The most recent national survey (2014) reported that the male labour force participation rate was 80.4 per cent and the female participation rate was 53.6 per cent. Malaysia's female participation rate was the lowest in Southeast Asia. Urban-based females in Malaysia had a higher rate of participation (48.5 per cent), compared to their counterparts in the rural areas (41.2 per cent). In early 2014, the Government introduced policies to ensure equal pay for equal work and programs to promote full and equal participation by women. 58 per cent of the Malaysian labour force has secondary level education, 13.2 per cent has primary level education and 2.6 per cent have no formal education, based on the most recent available statistics published in 2010.[3]

    [3] Department of Foreign Affairs and Trade, Country Information Report, Malaysia, 19 June 2016

22. As discussed with the applicant, the country information cited above indicates that the Malaysian economy is growing at between 4-5 per cent per annum and the unemployment rate is 3.3 per cent. In considering the applicant’s claims, the Tribunal notes the circumstances of the applicant accepted above, that he held employment in casual [jobs]. The Tribunal acknowledges that the applicant may be disappointed that he cannot remain in Australia given he invested funds in order to do so. The Tribunal accepts the applicant may not be able to earn as much in Malaysia as Australia and acknowledges that economic and employment conditions do not offer the opportunities that they do in Australia. However, noting the relevant country information regarding Malaysia's generally positive economic performance, and the applicant's past employment history, the Tribunal is satisfied the applicant will be able to obtain employment and support himself at a basic level in Malaysia. In addition, the Tribunal has had regard to s.5J of the Act and found that the applicant’s fear is not for one or more of the five reasons set out in s.5J(1) of the Act.

23. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution arising from his economic and employment circumstances. Further, for the same reasons as set out above, the Tribunal finds there are not 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 he will suffer significant harm on this basis. 

    Harm from Ah Long

24. In considering the applicant’s claim to face a reach chance of serious harm or a real risk of significant harm from an Ah Long on return to Malaysia, the Tribunal has taken into account the applicant’s claim to have taken out a cash loan of RM [amount] (approximately $[amount]) to renovate his family house but was unable to repay the debt because he had to pay medical expenses for his mother. The Tribunal is not satisfied the applicant’s evidence in connection with this claim is credible for the following reasons.

25. The applicant was vague, limited and shifting in the information he provided about matters relating to the loan.

    ·     The applicant stated at hearing that he did not know the name or the Ah Long from whom he borrowed or to have any details about him. He gave evidence that the Ah Long refused to reveal his identity; that he obtained the contact details of the Ah Long from an advertisement, called him and they met at [a] restaurant. The Tribunal notes the applicant claims to have borrowed RM [amount] to conduct renovations on his house and that he received this money in cash. The Tribunal considers RM[amount] represents a large amount of money for the applicant and given the size of the loan allegedly taken and the significance of the loan and the Ah Long to his claims, the Tribunal would expect the applicant to be able to provide a higher level of detail about the Ah Long. In addition, the Tribunal finds it far-fetched that the applicant would not obtain minimal details about the source of the loan given the amount involved.

    ·     The applicant was vague and limited in the information he provided about the process of obtaining the loan, initially saying that the Ah Long gave him the money without any discussion about the process or terms of the loan. When the Tribunal expressed surprise that the Ah Long required no documentation from the applicant, the applicant revised his account stating that the Ah Long just took a photocopy of his ID before giving him the money in cash. The lack of detail and spontaneity in the applicants’ response to these enquiries led the Tribunal to the view that he was not recounting events within his own experience. The Tribunal holds serious doubts about the credibility of the applicant’s claims for this reason.   

    ·     In response to the Tribunal’s enquiries about the terms of the loan, the applicant stated that he was not sure how much he was required to repay or when, that “it depends”. Following further enquiry from the Tribunal, the applicant stated that he agreed to make repayments to the Ah Long every three months, the amount depending on what he could afford to repay at the time, he thought around RM [amount] to RM [amount]. As discussed with the applicant, the Tribunal considers it far-fetched that an Ah Long, who would want to ensure that he received regular repayments to cover a long of this size would consider receipt of a repayment of so little money on such a vague basis as every few months, or depending on the applicant’s circumstances. The Tribunal far-fetched nature of the applicant’s responses to these enquiries led the Tribunal to have serious doubts about the credibility of the applicant’s evidence.

    In his response to these enquiries, the applicant stated the Ah Long would call the applicant and they would meet by the roadside and the applicant paid the Ah Long in cash. When the Tribunal suggested that this appeared to be unusual practice, the applicant changed his account, saying that the Ah Long did take his bank card, and that he would transfer money into the account, advise the Ah Long and the Ah Long would withdraw funds. The Tribunal shifting nature of the applicant’s responses to these enquiries led the Tribunal to have serious doubts about the credibility of the applicant’s evidence.

    ·     The applicant told the Tribunal that he does not know how much he now owes the Ah Long but he thinks it is around [amount] (approximately $[amount]); that he has not made any payments because he cannot afford it and he does not want to have anything to do with this person. The applicant gave evidence that he has not been in touch with the Ah Long since coming to Australia because he no longer has the number as he ran away.  He has not considered selling the house to cover the loan because then the family would have nowhere to live. Given the significance of the loan to the applicant’s claims, the Tribunal would expect the applicant to be aware of the amount now owing, maintained the means of communicating with the Ah Long and to have given thought to ways to meet his financial obligations, including the sale of family assets. These considerations led the Tribunal to have serious doubts about the credibility of the applicant’s evidence concerning dealings with an Ah Long.

    ·     At hearing, the Tribunal commented that the applicant did not refer to the Ah Long’s death threats in his written statement or mention that he had moved to different places to evade the Ah Long. In response, the applicant stated that he did not mention this because he had not worked in these locations. The Tribunal considers the omission of any details in his written application in respect of threats from the Ah Long and the applicant’s claimed efforts to evade the Ah Long to be significant given the relevance of these matters to his claims. These omissions have led the Tribunal to have further serious doubts about the credibility of the applicant’s evidence.

26. In considering the credibility of the applicant’s claims to fear harm from an Ah Long, the Tribunal took into account the applicant’s evidence that the Ah Long rang him and threatened to kill him but that the applicant did not report this incident to police because he feared the Ah Long would harm him if he did. In considering the credibility of the applicant’s claim to need protection from an Ah Long, the Tribunal takes into account of advice from DFAT, put to the applicant, indicating that, “credible local and international sources consider the Royal Malaysian Police (RMP) to be a professional and effective police force.”[4] The Tribunal acknowledged the existence of corruption in the police force and noted that the government has implemented reforms, including establishing compliance units within the RMP, to counter corruption.[5]  The Tribunal also takes into account country information, put to the applicant, indicating that the police are responsive to complaints about unlicensed money lenders and encourage people to come forward if they are experiencing difficulties with unlicensed money lenders.[6] The Tribunal suggested that in the event the Ah Long or anyone else threatened harm to the applicant, given the country information the Tribunal would expect that the applicant would approach police to seek assistance.

    [4] Department of Foreign Affairs and Trade, Country Information Report, Malaysia, 19 June 2016

    [5] Department of Foreign Affairs and Trade, Country Information Report, Malaysia, 19 June 2016

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

1. In response to this information, the applicant agreed that the police are generally professional but some of its members are corrupt and involved in politics, and for this reason he has no faith in them. He also said that he was afraid to express his fears to police. The Tribunal has taken account of the applicant’s response, but considers the DFAT advice and news reports referred to above are authoritative about the situation in Malaysia with respect to the police in general and in their response to money lenders specifically. The Tribunal is satisfied that while there is some corruption within the system, there is nothing before it to indicate that the State would be unable or unwilling to protect the applicant in his particular circumstances. On this basis, the Tribunal considers that had the applicant need of protection from the Ah Long group as claimed he would have sought protection from the police. Given the serious nature of the claimed threats, the applicant’s stated failure to seek the assistance of police leads the Tribunal to have further serious concerns about the applicant’s credibility.

2. For all the reasons given above, the Tribunal is not satisfied as to the credibility of the applicant’s claims in respect of dealings with an Ah Long. On this basis, the Tribunal does not accept the applicant had any dealings with an Ah Long. The Tribunal does not accept the applicant borrowed RM [amount] from an Ah Long for any reason or that he continues to owe an Ah Long the sum of RM [amount].  On the same basis, the Tribunal does not accept the applicant’s claim that he cannot repay the loan or that an Ah Long has threatened to kill the applicant for this reason; or that the Ah Long is still looking for the applicant.

3. Looking to the future, the Tribunal does not accept that the applicant has a real chance of serious harm from an Ah Long or anyone else. On all the evidence before it, the Tribunal does not accept the applicant has a well-founded fear of persecution for one or more of the five reasons set out in s.5J(1) of the Act now or in the foreseeable future on return to Malaysia.

4. For the same reasons as above, the Tribunal does not accept that the applicant had dealings with an Ah Long as claimed. The Tribunal finds there are not 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 he will suffer significant harm on this basis. 

5. For the reasons set out above, the Tribunal does not accept there are substantial grounds for believing there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Malaysia, there is a real risk that the applicant will suffer significant harm. 

   CONCLUSION

6. 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).

7. 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).

8. 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

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

   Amanda Paxton
   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.

   …