1706386 (Refugee)

[2017] AATA 2155

1706386 (Refugee) [2017] AATA 2155 (15 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706386

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Gabrielle Cullen

DATE:15 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2017 at 10:39am

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – Fear of loan sharks – Alleged physical assault by loans sharks – Credibility Issues

LEGISLATION

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

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2017 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 departed Malaysia for Australia [in] November 2016 on a [visa]. He then applied for a protection visa [in] February 2017. He claims to fear return as he could not pay his loan and as a result the loan sharks threatened him and his family with harm and also beat him.

3. The applicant was not invited to attend an interview at the Department. The delegate refused to grant the visa [in] March 2017 on the basis that the delegate was satisfied that the Malaysian authorities would offer effective protection to the applicant.

4. The applicant appeared before the Tribunal on 9 August 2017 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The applicant was assisted with an interpreter in the Cantonese and English languages.

5. The issues to be considered in this case are as follows.

   ·Is the applicant credible as to his claims?

   ·Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?

   ·Does the applicant meet the protection obligations under the complementary protection provisions of the Migration Act?

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.  

10. 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

11. 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

12. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.

    ·The protection visa application of the applicant dated [in] November 2016 and identity documents.

    ·Oral evidence of the applicant provided at the Tribunal hearing on 9 August 2017.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

    ·DFAT DFAT Country Report Malaysia dated 19 July 2016.

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

    The Applicant’s Claims

14. The applicant claims in a statement attached to his protection visa application that he was [an occupation] and in 2015 got to know [Mr A] via a friend. He claims that in May 2016 he [did work] at [Mr A’s] place. He claims because they were acquaintances they made an oral agreement to which [Mr A] would pay him [amount] ringgit. He claims [Mr A] pre-paid [amount] ringgit and promised to pay the rest after the project was completed. He claims [Mr A] refused to pay the balance. He claims he tried to make [Mr A] pay but [Mr A] even threatened the applicant that if he kept harassing him he would call the police and have him arrested.

15. The applicant claims that in July 2016 he once again went to [Mr A’s] place for money and his excuse was he had no money so they had an altercation. He claims when the police arrived, [Mr A] told them that the applicant had threatened to hurt him. He claims he tried to defend himself but the police would not listen and warned him to leave immediately. He claims the police told him if he harassed [Mr A] again they would arrest him.

16. He claims he was very depressed at his bad luck that he had to pay others wages while he did not have money. He claims in August he went to an underground casino to try his luck under a friend’s persuasion. He claims he was very lucky that day and won [amount] ringgit but when he tried to leave, the casino stopped him and accused him of cheating. He claims they forced him to give [amount] ringgit. He claims he had to give the money as he knew these people had triad backgrounds. He claims he borrowed [amount] ringgit from relatives and friends and another [amount] ringgit from a usury to give to the casino. He claims he made an agreement with the finance company he would pay it off in two months.

17. He claims that during the next two months he did not receive any job even though he tried. He claims as a result he owed more and more and the loan shark often threatened him. He claims they stopped him on the road and beat him until he was black and blue. He claims he called the police for help but the police said it was a private matter and none of their business.

18. He claims he lived in fear of encountering the debt collectors. He claims that they managed to find his place and forced him to pay them back. He claims [in] October 2016 some people knocked on his door and it was the debt collectors. He claims they burst into the house and took away all the valuable home appliances and furniture. He claims he was beaten badly; he curled up in a corner and was unable to stop them. He claims he once again called the police but they did not care. He claims he was afraid that one day he would be beaten to death so he had to come to Australia.

19. At the hearing held on 9 August 2017 the applicant reiterated that he feared return from the debt collectors as a result of the non-payment of money he borrowed from the loan sharks. He added that his wife is [a Country 1] citizen and departed with their child to live with her mother, two weeks after he departed for Australia. He said he did not have a spouse or partner visa for [Country 1] and stated that he and his wife are near divorce.

20. As to his claim to fear return and the difficulties faced in Malaysia he indicated that he attended the casino in August 2015 and even though he won [amount] ringgit he was required to pay then [amount] ringgit so had to loan [amount] ringgit from the loan sharks and borrowed [amount] ringgit from friends. He said the interest on the loan was [amount] ringgit per week and he currently owed approximately [amount] ringgit. He said the difficulties from the debt collectors began soon after the loan was initiated when he could not pay the interest. He said in September 2015 when he was going for food he was stopped and beaten. He said he pleaded with them and they stopped when he gave them a little money. He said they came to his mother’s home with threats in October 2015 and in December 2015 they took the appliances and valuables and he was beaten. He said he went to the police but they said it was a private affair.  He said after that he did not return to his home and stayed with relatives and friends. He said they came and gave threats to his wife that if she did not tell them where the applicant was they will set the house on fire. He said that occurred in 2016. As to whether anything else happened after he moved away, he said apart from threatening his wife nothing else happened.

21. The Tribunal raised with him that it had concerns as to the credibility of his claims and where relevant these have been outlined below.

    Assessment of Claims

22. On the basis of the applicant’s passport and evidence provided at hearing the Tribunal accepts that the applicant is a national of Malaysia. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Malaysia is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Malaysia is the receiving country.

23. As to the applicant fearing return for the reasons he claims and having faced the difficulties he claims in Malaysia, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness. It finds the applicant never faced the difficulties he claims at the hands of the loan sharks for the reasons he claims. It finds the applicant’s testimony inconsistent as to core aspects of his claim. This leads the Tribunal to find that the applicant is not a witness of truth.

24. It is the applicant’s claim that that he departed Malaysia as he could not repay the loan sharks and they threatened him with harm. However he has provided the following inconsistent evidence as to central aspects of this claim which leads the Tribunal to find he is not credible as to ever having faced the difficulties he claims at the hands of the loan sharks and adds to the finding he is not a credible witness.

25. Firstly, his behavior in remaining living at his home up until the time of his departure and his inconsistent evidence as to whether he lived at home or was in hiding undermines his claim that he faced the difficulties which he claims led him to depart Malaysia and why he fears return. It adds to the finding he is not a credible witness as to these claims. In this regard, initially at the hearing held on 9 August 2017 the applicant indicated he remained living at his home, with his mother up until the time he departed Malaysia for Australia in November 2016. He indicated he travelled from that home to the airport to travel to Australia. However, later in the hearing the applicant claimed that from around December 2015 he did not go home and stayed with friends and relatives due to the threats and difficulties faced from the loan sharks until he departed in November 2016. He said he did not go back home rather met his mother elsewhere. When the Tribunal raised the inconsistency in his evidence, he responded that he said he travelled from the airport to his home and thought that’s what was being discussed. The Tribunal does not accept this explanation as the applicant also indicated he lived at home up until he departed not only that he travelled from his home to the airport.  The tribunal is of the view his claim to be in hiding living with friends and relatives from December 2015 is a fabrication, as if true it expects he would be consistent as to moving from his home or living elsewhere for nearly 11 months before his departure when asked. The Tribunal views this internal inconsistency and his behavior remaining living at his home up until his departure as undermining his claim to have been in fear for the reasons he claims and departed Malaysia for the reasons he claims. This adds to the finding he is not a credible witness.

26. Added to this is that there is no mention in his statement attached to his protection visa application of him leaving his home or staying with friends due to a fear of harm from approximately December 2015 until he departed in November 2016, rather he refers to an incident in October 2016 where he was beaten at home and the valuables stolen. When raised with the applicant why he had not mentioned going into hiding or living with friends and relatives to escape the debt collectors, he said that the statement was written with the help of a friend after he told him what happened. He said his friend wrote it and that he must have omitted it. While the Tribunal accepts he was assisted in writing the statement by a friend it does not accept his lack of mentioning the hiding was as a result of this, as it is further inconsistent with his claim he was at home when they came and robbed them in October 2016 and beat him. It is of the view if he went into hiding for this period of time it would be in the statement as other details of less significance are in the statement. It views the omission of not mentioning going into hiding or staying away from his home and not returning home as adding to the finding he did not go into hiding or leave his home to escape the threats and difficulties at all from the loan sharks. It adds to the finding he is not a credible witness.

27. The applicant has also provided inconsistent evidence as to when he took out the loan and when the threats and difficulties from the loan sharks occurred and whether or not he was working after he took out the loan as follows.

28. In his statement, he refers to attending the casino and taking out the loan in August, which is clearly August 2016 from the chronology of his events. He indicates that this followed his final encounter with [Mr A], which he states occurred in July 2016 who would not pay the balance on his [job] and left him depressed. He indicates that he initially took out the job with [Mr A] in May 2016 after getting to know him in 2015 and having difficulties with [Mr A] until July 2016. He claims after he took out the loan in August, in October 2016 the loan sharks came to his home, took away all the valuable home appliances and furniture and he refers to being beaten. He refers to being out of work the two months after he took out the loan In August 2016.

29. However, in contrast at hearing he stated and confirmed that he borrowed the money in August 2015 as he could not pay the casino [amount] ringgit as they demanded. He said the difficulties also began immediately as he could not pay the interest and loan. He referred to being beaten while going out for food in September 2015. He refers to them coming to his mother’s home in October 2015 and coming to take the valuables one to two months later in or around December 2015. He said he went to stay with friends and relatives in December 2015 for 11 months until his departure in November 2016. He said the only even that happened after he went to stay with friends and relatives to avoid the loan sharks was when they came and gave the warning to his wife that they would burn the house if she did not tell them where he was and he said that was in 2016. When the Tribunal asked him if anything else happened after he moved away in December 2015, he said nothing else happened apart from them threatening his wife.

30. When the inconsistencies in his evidence were raised he repeated that the loan was taken out in August 2015, he worked for a friend in May to August 2015 and he didn’t pay. In response he said the most severe times were in 2015 but he continued to be threatened in 2016 and referred to phone threats.

31. The Tribunal does not accept the applicant’s response as explaining the significant time discrepancy. It has considered his claim that his friend wrote it but he stated that he told him what to say. It does not accept such significant time inconsistencies could arise throughout the claims and events on this basis. As the events he claims which are the reasons he fears return only occurred 1 to 2 years ago, the Tribunal is of the view, if true, he would be consistent as to when they occurred. It views a year inconsistency when they only occurred 1 to 2 years ago to be significant. This adds to the finding the applicant is not a credible witness.

32. Also of concern is his claim in his statement attached to his protection visa applicant that he could not pay the loan back, taken out in August 2016 as could not get work in the following two months. However at hearing while stating the loan was taken out in August 2015 he indicated he worked until 6 months before his departure, being around May/June 2016, thereby working two months after the loan was taken out, in contrast to his statement. The Tribunal is of the view if he feared return because he could not pay back the loan he would be consistent as to whether he could obtain work after he took out the loan or not as this would be central to paying it back. This adds to the finding he is not a credible witness.

33. As raised with the applicant, the Tribunal also views as of concern that despite his wife being threatened that their home would be burned down if she did not disclose the applicant’s whereabouts, the loan sharks breaking in to their home and stealing the valuable appliances and beating the applicant there, she stayed living at their home throughout up until two weeks after his departure, together with their child. In response the applicant said if they see him they will beat me. The Tribunal does not accept his response as explaining why his wife would continue to live at their home when she had been threatened up until two weeks after the applicant’s departure if she had faced the difficulties the applicant claims. It adds to the finding he and his family did not face the difficulties he claims at the hands of the debt collectors. It adds to the finding he is not a credible witness.

    Credibility Summary

1. For all the above reasons, considered cumulatively the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome.  On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.

2. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked.  It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.

3. In making this finding the Tribunal accepts that some information has been consistent over time, that he fled because he feared loan sharks after he borrowed [amount] ringgit from them to pay to the casino, he was beaten and the loan sharks came to his home and took the valuable appliances and furniture and beat the applicant. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.

4. As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept that the applicant has been targeted by loan sharks, debtors, the triad gang or anyone else because of any loan of any amount he claims to have in Malaysia. It follows based on the applicant’s lack of credibility that it does not accept that the applicant had a loan with loan sharks or anyone else for any amount as he needed money to pay the casino in 2015 or 2016 or at all. It follows it does not accept he went to the casino as [Mr A] would not pay him the money from a past job in 2015 or 2016 or that he had any altercation with [Mr A] or the police or that he was threatened or harmed by him. It follows it does not accept as true that he was threatened though the phone or personally, that he was beaten, they came to his home and took valuable home appliances or furniture or threatened his wife if she did not turn him in. It follows it does not accept as true that he reported the matter to the police on any occasions and they said they could do nothing.

5. It follows it does not accept he went into hiding or stayed with friends and family as he was in fear at any time including from December 2015 until his departure in November 2016.

6. Based on the above the Tribunal therefore rejects the applicant’s claims in their entirety and does not accept that he departed Malaysia in November 2016 in fear for the reasons he claims. It follows it does not accept his wife departed Malaysia for [Country 1] two weeks after his departure in November 2016 due to any incident with loan sharks or any threats.

   Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?

7. Based on the findings above and the applicant’s lack of credibility, it follows the Tribunal does not accept the applicant or his family will be physically assaulted, robbed, killed, threatened, suffer injury, be beaten, abused, harmed or mistreated, be unable to earn a livelihood or face any difficulties he claims as he owes money to the loan sharks or because of any altercation or difficulty with [Mr A].

8. As a result the Tribunal does not accept that the applicant or his family face a real chance of persecution involving serious harm if he returns to Malaysia in the reasonably foreseeable future at the hands of the loan sharks, triad gangs, police, [Mr A] or for any of the reason he claims.

9. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Malaysia in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.

10. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Does the applicant meet the protection obligations under the complementary protection provisions of the Migration Act?

11. The Tribunal has also considered whether the applicant is eligible for complementary protection.

12. Based on the findings above as to the applicant’s lack of credibility, the Tribunal is therefore not satisfied on the basis of the evidence before me that there is a real risk that he or his family will suffer significant harm on his return to Malaysia at the hands of the loan sharks, triad ganga, police, [Mr A] or for any of the reason he claims.

13. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of him being subjected to significant harm on return to Malaysia. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in subsection 36(2A).

    CONCLUSION

14. 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).

15. 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).

16. 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

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

    Gabrielle Cullen
    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.

    …