1704089 (Refugee)

[2018] AATA 3218

1704089 (Refugee) [2018] AATA 3218 (6 July 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704089

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rosa Gagliardi

DATE OF DECISION:  6 July 2018

DATE CORRIGENDUM

SIGNED:16 August 2018

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. The words ‘The delegate refused to grant the visa on the basis that.’ at paragraph 2 should be replaced with the words ‘The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for the grant of a Protection Visa.’

   Rosa Gagliardi
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   CASE NUMBER:  1704089

   COUNTRY OF REFERENCE:                  Malaysia

   MEMBER:Rosa Gagliardi

   DATE:6 July 2018

   PLACE OF DECISION:  Melbourne

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

   Statement made on 06 July 2018 at 12:04pm

   CATCHWORDS

   Refugee – Protection Visa – Malaysia – Fear of severe economic hardship – Whether the applicant will be unable to subsist – Where applicant fears being ‘blacklisted’ for not repaying loan – Country information does not support applicant’s claims – Refinancing options available to the applicant – Harm feared does not constitute serious or significant harm – Decision affirmed

   LEGISLATION

   Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
   Migration Regulations 1994 (Cth), Schedule 2

   Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant who claims to be a citizen of Malaysia applied for the visa on 5 July 2016. The delegate refused to grant the visa on the basis that .

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

    Country of reference - nationality

11. The applicant claims to be a citizen of Malaysia and has provided a copy of her passport to the department with her application. The Tribunal finds the applicant is a citizen of Malaysia which is also her receiving country for the purposes of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest the applicant has the right to enter and reside in any third country for the purposes of section 36(3) of the Act.

    Claims at the time of application

12. The applicant wrote in her application that she left Malaysia as the political and economic status of the country continues to worsen.  The currency has decreased dramatically and the prices are higher and not parallel to the basic salary.  It has become unaffordable and she is poor.

    The hearing

13. The applicant was born in Sabah and then moved to Kuala Lumpur.  She had [a] brother.  He went to live with his father and the applicant lives with her mother.  She studied as [Occupation 1] on leaving school.  The applicant financed her studies by taking out a study loan.  Her mother also helped out and she worked a bit also.  She had worked [in various occupations], part-time.  Her mother worked [as a particular occupation] at [a particular business].  She also worked in her field as [Occupation 1] with several companies.  She quit one company because they had not paid her for three months.  She worked for one company for two years and then she came to Australia. 

14. The applicant stated that the money she earned as a [Occupation 1] was enough for her expenses, but not to purchase a property.  Eventually she did buy a [property] in her name and that of her mother.  The house cost [a particular amount],  including a [deposit]. Relevant evidence has been submitted.  She has been paying the loan a little at a time.  She is working in Australia in [a particular industry].  The applicant’s mother currently was not making repayments because she had been laid off work, after the applicant’s arrival in Australia. 

15. The Tribunal asked the applicant what serious harm she feared in Malaysia.  The applicant responded that she feared that if she was unable to pay the property she owned it would be repossessed and she would be “blacklisted”.  She had been renting the [property] above with her mother previously.  She thought that given she never missed a payment when she was renting, she thought she could meet her commitments without difficulty if she purchased her own home.  The applicant stated that when she was working for one of the [companies] her mother was paying for the instalments on the property, and the applicant was looking after all their expenses, including going to and from work because she did not have a car. 

16. The Tribunal asked the applicant to advise what being blacklisted meant exactly.  She responded that if you were blacklisted due to study loans you could not travel abroad, and if you were blacklisted by the banks then you could not take out any other loans and the property would be repossessed.

17. The Tribunal noted that prior to the applicant coming to Australia she and her mother were both working and managing their expenses so why had she had travelled to Australia.  The applicant stated that the economy was so bad at that time and she barely had enough to support her herself and her mother. 

18. The Tribunal noted that the loan was taken out by the applicant just prior to her coming to Australia. The loan documentation submitted pointed to her having been approved for the loan around [March] 2016.  As the applicant had arrived in Australia [in] April 2016, the Tribunal had concerns that the applicant purchased the property thinking that she would come here to make money and then repay it completely.  The applicant responded that she needed to save money generally, not just to pay the home loan.  The Tribunal noted that when the applicant purchased her [property] she would have known that she was coming to Australia, and asked why she found it necessary to come to Australia given the significant investment she had made.  The Tribunal noted that it appeared that the property was purchased on a speculative basis. 

19. The applicant stated that when she came to Australia the [property] had not yet been handed over to her.  They had to wait a year for confirmation.  It was difficult to obtain low cost housing.  The Tribunal asked the applicant what her intention in coming to Australia had been.  She responded that she followed her friend to come here and it was true she came to Australia to make money, in order to cover her expenses. 

20. The Tribunal also put to the applicant country information about the economy and that this information would assist the Tribunal make an assessment about whether the applicant could subsist in Malaysia and whether there was a real chance she would suffer some other form of serious harm on return. 

21. The Tribunal also highlighted that it was open to the applicant if she was struggling to make repayments, to sell her property to try and recover some funds.  The applicant stated that she had a hard life since she was small and the fact she had managed to purchase a property was significant – she was attached to it.  It was special to her.  The Tribunal observed that if she could not make her repayments it would be better if she parted with the property on her own terms, rather than be blacklisted.  The applicant asked why she should sell the property when if she had to pay rent it would equate to the same amount.

22. The Tribunal noted that in the context of the country information it may have difficulty accepting that the applicant would not be able to find work to subsist.  The applicant agreed that the Malaysian economy was stable.  In view of the upcoming election (which has now occurred) they were giving money to people for the purposes of courting their votes.  The applicant stated that in regards to Malaysia’s rapidly developing economy, this was because they took money from people through the GST which was set at a very high rate.  She was being truthful in stating that with the pay she was getting, she could only cover her expenses for the first two weeks of each month.  The applicant stated that the government had targeted the poor by giving out cash but it was only about RM550 per year to cover the cost of the GST imposed on all goods and services.  Her mother had received it, but the applicant had not.

23. The applicant stated that if she returned to Malaysia she might be black listed due to her loans. It could also affect her children’s credit standing, although currently she did not have children.

    Country information

24. In its 2018 Country Information Report – Malaysia, the Department of Foreign Affairs and Trade (‘DFAT’) provided an overview of the economy and employment in Malaysia:
    
    

    ECONOMIC OVERVIEW

    The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2017 its real GDP growth was 5.4 per cent and per capita GDP was USD9,660. Since independence, Malaysia has transformed from a commodity-based economy, focused predominantly on rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. It is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 82.2 per cent of Malaysia’s exports in 2016. Malaysia is ASEAN’s largest energy exporter and income from oil and gas provides the government’s largest single revenue source. The drop in oil price in 2015 and 2016 negatively affected government revenues, but the rebound in oil process in 2017 has seen revenues pick up again. The World Bank forecasts economic growth of 5.2 per cent for 2018.

    Malaysia’s economic performance over many decades 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 less than 1 per cent in 2017. According to Malaysian government estimates, poverty rates were 0.5 per cent for ethnic Malay, 0.1 per cent for Chinese Malaysians and 0.1 per cent for ethnic Indians. The rural poverty rate of 1 per cent in 2016 was higher than that of urban areas (0.2 per cent in 2016). The UNDP’s Human Development Index ranked Malaysia 59 out of 188 countries in 2015, placing it in the ‘high human development’ category.

    Notwithstanding the introduction of a number of reforms aimed at liberalising the economy, particularly in the services sector, the government continues to prioritise the economic advancement of the bumiputera.

    National Transformation 2050 is Malaysia’s plan for the period of 2020 to 2050. The plan aims to transform Malaysia into one of the top countries in the world in economic development, citizen well-being and innovation.

    Transparency International’s 2017 Corruption Perceptions Index ranks Malaysia 62 out of 180 countries and territories. In 2015, the government investment fund, 1 Malaysia Development Berhad (1MDB), was at the centre of claims that Prime Minister Najib Razak, also Chairman of the 1MDB Advisory Board, had misappropriated significant funds through complex financial transactions involving 1MDB and its subsidiaries. In July 2015, the Prime Minister removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB. Malaysia’s current Attorney-General cleared Najib of any criminal liability but international investigations into the corruption claims are still underway.
    
    

    Employment

    In July 2017, the Malaysian Department of Statistics reported a labour force participation rate of 67.7 per cent and an unemployment rate of 3.5 per cent. In 2016, the male labour force participation rate was 80.2 per cent and the female participation rate was 54.3 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. Fifty- eight per cent of the Malaysian labour force has secondary level education, 13.2 per cent has primary level education and 2.6 per cent has no formal education.[1]

    [1] DFAT Country Report, Malaysia 19 April 2018.

25. The World Bank has provided its latest overview on Malaysia:

    From an economy dominated by the production of raw natural resource materials, such as tin and rubber, even as recently as the 1970s, Malaysia today has a diversified economy and has become a leading exporter of electrical appliances, electronic parts and components and natural gas. After the Asian financial crisis of 1997-1998, Malaysia continued to post solid growth rates, averaging 5.5 percent per year from 2000-2008. Malaysia was hit by the Global Financial Crisis in 2009 but recovered rapidly, posting growth rates averaging 5.7 percent since 2010.

    Less than 1 percent of Malaysian households live in extreme poverty, and the government’s focus has shifted toward addressing the well-being of the poorest 40 percent of the population (“the bottom 40”). This low-income group remains particularly vulnerable to economic shocks as well as increases in the cost of living and mounting financial obligations. Income inequality in Malaysia remains high relative to other East Asian countries, but is gradually declining. For example, from 2009 to 2014 the real average household incomes of the bottom 40 grew at 11.9 percent per year, compared to 7.9 percent for the total population of Malaysia, thus narrowing income disparities. Following the removal of broad-based subsidies, the government has gradually moved toward more targeted measures to support the poor and vulnerable, mainly in the form of cash transfers to low-income households.
    Malaysia’s near-term economic outlook remains favorable, reflecting a well-diversified and open economy that has successfully weathered the impact of external shocks. Domestic demand is expected to continue to anchor economic growth, supported by continued income growth and a stable labor market, while an improving external environment would contribute positively to demand for Malaysia’s tradable goods and services. Accelerating structural reforms to enhance public sector performance and boost the productivity of public spending will be vital to sustain robust growth in a challenging external environment.[2]

    The applicant’s financial difficulties in Malaysia and fear of losing her property

    [2] World Bank Malaysia Overview, September 2017, accessed on 5 July 2018.

26. The applicant has provided evidence of her debts to a financial institution to the value of [a particular amount] as at [a particular date in] March 2016.  While the applicant was not clear at hearing about the extent of the debt now, given some two years have elapsed since [March] 2016 (the purchase of the property), and given the applicant is working in [a business] in Australia, the Tribunal would expect that the applicant has made some progress in decreasing the loan.  Nonetheless, the Tribunal accepted her evidence as generally truthful. From the outset of her explanation to the Tribunal of the extent of her financial problems in Malaysia, the Tribunal understood that the applicant was struggling to provide for herself a sustainable living as well as to make periodic payments towards the reduction of her existing debts. This situation was exacerbated because when the applicant came to Australia her mother lost her job and she could no longer rely on her mother’s income to help make repayments.

27. The Tribunal also understands that the applicant has a study loan.

28. The Tribunal was told that the applicant was fearful that if she returned to Malaysia she would be ‘blacklisted’ by her financiers and prevented from securing any home or car loans in the future on account of not being able to repay her mortgage. The applicant on being asked on several occasions what serious harm she feared in Malaysia, stated that although she could find work in Malaysia, her employment did not provide her with sufficient income to both live and repay her debts.  That is why she had come to Australia.

29. The Tribunal noted the country information described Malaysia as a functioning economy which sustained a very active and changing national workforce, though the Tribunal does not minimise that there are also difficulties for those who may be uneducated and unable to adapt to a modernising economy. The applicant did not provide the Tribunal with any evidence to show that she has been prevented for any Convention reason from freely participating in that national economy.  This is particularly so as the applicant has been able to turn her hand to various forms of work in a variety of sectors while in Malaysia and she has a qualification in [a particular field].  Furthermore, in Australia she has shown herself to be resourceful and capable of attaining work and participating in a foreign economy.

1. Further, the applicant has now gained work experience at an international level, making it likely she will be more marketable in Malaysia.

2. The Tribunal appreciates that the applicant fears she may lose her property because it will be repossessed if she is unable to make her repayments and that she was very reluctant to part with her first property.  However, it is not unreasonable that applicants rearrange their financial circumstances in a way that would ensure they are not overburdened.  Even were the applicant to sell the property, the outcome, whilst not desirable, is that the applicant and her mother will continue to live in a rental property as they have done previously, while managing their finances, albeit carefully.  It is also open to the applicant’s mother to find some other form of [work] in Malaysia so that they both continue to contribute to the mortgage to continue to keep the [property].

3. The Tribunal also appreciates that the applicant does not wish to have her financial reputation tarnished by being blacklisted given the financial consequences.  Nonetheless, if the applicant returned to Malaysia now or in the reasonably foreseeable future and attained work, along with her mother, the Tribunal considers that the chance that she would face being blacklisted would be diminished.  This is particularly so, were the applicant able to negotiate with the banking institution to pay smaller periodic amounts, which might lengthen the term of the loan, but would at least mean that she and her mother could continue to reside in the property.

4. The Tribunal accepts that the applicant may face hardship and disappointment in having to refocus her financial future. However, the Tribunal has little evidence that the applicant will face serious harm by way of there being a threat to her life or liberty; that she would experience significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens the applicant’s capacity to subsist, or that she would be denied access to basic services, where the denial threatens her capacity to subsist. The Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J (a), (b) or (c) of the Act. The Tribunal has also considered examples of serious harm that go beyond those set out under s.5(J) as these are not exhaustive.

5. For all 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).

6. 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).

7. The Tribunal considers that the applicant’s financial aspirations are entirely reasonable but if she does not fulfil these, the Tribunal has little evidence before it that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk of significant harm if she does manage to hold onto her property and has to delay repaying other debts.

8. Furthermore, the Tribunal finds there is no intention on the part of the Malaysian Government in its role of managing the economy in combination of market forces to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference. The Tribunal, accordingly, does not have substantial reasons for believing the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, based on the applicant’s economic circumstances, including that she will be subjected to cruel or inhuman treatment or punishment or will be subjected to degrading treatment or punishment.

9. Accordingly the Tribunal finds that there is no real risk of the applicant being significantly harmed upon her being returned to Malaysia and the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   CONCLUSION

10. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that she does not satisfy the criteria for a protection visa.

11. 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

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

    Rosa Gagliardi
    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.

    …