1706800 (Refugee)

[2021] AATA 677

1706800 (Refugee) [2021] AATA 677 (27 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1706800

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Scott Clarey

DATE:27 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 27 February 2021 at 3:36pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – particular social group – victims of loan sharks – threats of forced prostitution – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
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
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 dependants.

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 and Border Protection on 7 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant ([named]), who is a citizen of Indonesia, applied for the visa on 23 November 2016. On 7 March 2017, a delegate of the Department of Immigration and Border Protection, now the Department of Home Affairs (the Department), refused to grant the on the basis that they were not satisfied the applicant was owed protection in Australia. On 1 April 2017, [the applicant] applied to the Tribunal for the review of this decision. She provided the Tribunal with a copy of the delegate’s decision record.

3. [The applicant] appeared before the Tribunal on 7 September 2020 to give evidence and present arguments.  The Tribunal was assisted by an interpreter in the Indonesian and English languages

4. At the hearing, [the applicant] confirmed that she is [an age]-year old woman born in Karawang, West Java, Indonesia on [date]. [The applicant] confirmed she is of Javanese ethnicity and a follower of the Islamic faith. She [has specified siblings]. Her mother lives in Indonesia (as do her [siblings]) and her father is recently deceased. [The applicant] finished [school] but has no further education. She has been a widow since 2008 when her husband passed away from [a medical condition]. She has one [child] who lives in Indonesia with relatives. [The applicant] stated that she previously worked as a shopkeeper in Indonesia. I accept these biographical details to be true.

5. [The applicant] first arrived in Australia [in] September 2016, having departed Indonesia legally, on 3-month [tourist] visa granted on 9 August 2016. On 23 November 2016, she lodged the protection visa application that is the subject of this review.

6. On the basis of the copy of [the applicant’s] Indonesian passport provided to the Department, I accept that she is a citizen of Indonesia and that her identity is as she claims it to be. I accept that Indonesia is [the applicant’s] country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.

7. The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to his receiving country of Indonesia, there is a real risk she will suffer significant harm.

8. For the following reasons, I have concluded that the decision under review should be affirmed.

   Claims and evidence

   Evidence before the Department

   9.    [The applicant] set out her claims for protection in her application form as follows:

   Q89:     Why did you leave the country(s)?

   A:I BEEN CHASED BY LOAN SHARK IN INDONESIA. MY HUSBAND PASSED AWAY IN 2008, BEFORE HE PASSED AWAY, HE [SUFFERED A MEDICAL CONDITION], AND WE DONT HAVE SAVING AS MY HUSBAND ONLY WORK AS FACTORY LABOURER, AND WE DON’T HAVE ANY HEALTH INSURANCE. WE HAVE NO CHOICE, WE LOAN A LOT OF MONEY TO LOAN SHARK, WITH 25% OF INTEREST PER YEAR. AFTER MY HUSBAND PASSED AWAY, I ENDED UP HAVING AN ENORMOUS AMOUNT OF DEBT. SINCE 2008 I WORK AT MY FRIEND SHOP, BUT I ONLY CAN PAY THE INTEREST ONLY. AND ON 2010, I WENT THERE ASKING FOR INTEREST REDUCTION, BUT THEY SEXUALLY HARASSED ME, AND THEY FORCED ME TO PAY MORE IF I DON’T WANT ENDED AS PROSTITUTE. I WAS SO SCARED, UNTIL 2016 MY FRIEND ADVICE ME TO RUN AWAY BECAUSE I CANT LIVE IN DEBT FOREVER.

   Q90:What do you think will happen to you if you return to that country(s)?

   A:THEY GONNA MAKE ME WORK FOREVER OR MAKE ME AS PROSTITUTE

   Q91:     Did you experience harm in that country(s)?

   A:THEY SEXUALY HARASSED ME AND THREATENED ME TO BECOME PROSTITUTE

   Q92:     Did you seek help within the country(s) after the harm?

   A:YES. I ASKING ADVICE FROM LOCAL LAWYER, BUT THEY CANT DO ANYTHING SINCE THE LOAN SHARK HAVE STRONG LEGAL ADVICE TEAM, AND I DONT HAVE MONEY LEFT

   Q93:Did you move, or try to move, to another part of that country(s) to seek safety?

   A:NO. THEY HAVE MY ID CARD, I CANT MOVE ANYWHERE

   Q94:     Do you think you will be harmed or mistreated if you return to that country(s)?

   A:YES. THEY WILL HARASSED ME MORE, AND FORCE ME TO BECOME PROSTITUTE

   Q95:Do you think the authorities of that country(s) can and will protect you if you go back?

   A:NO. INDONESIA POLICE IS KNOWN AS CORRUPT ORGANISATION, THEY WONT HELP COMMONER WITHOUT PAYING MONEY. I DONT HAVE MONEY LEFT TO FIGHT THEM. AND SINCE ME AND MY HUSBAND SIGNED THE DRAFT WITH AWARENESS, EVEN LOCAL LAWYER SAID ITS POINTLESS

   Q96:     Do you think you would be able to relocate within that country(s)?

   A:NO. I CAN’T MOVE ANYWHERE, THEY HAVE ALL MY ID

   Evidence before the Tribunal

9. At the hearing, when asked why had decided to depart Indonesia for Australia in 2016, [the applicant] gave a confused response, at first stating that she decided to leave Indonesia because she was in debt, was suffering from stress and a friend had told her to come to Australia. She then stated that she had decided to come to Australia for a holiday to visit her friend here, and intended when she departed Indonesia to return there. She stated that while she was in Australia, her friend told her that she can work in Australia and that she should not go back to Indonesia. Her friend told her that she could apply for protection so that she could work here. She said that she had applied for protection so that she could work in Australia (this issue is discussed further below).

10. I questioned [the applicant] about her claimed debts in Indonesia. I note that [the applicant’s] answers in response to straightforward questions about this issue were confused, evasive, vague, off-point and at times contradictory (discussed further below). When asked who she owed money to, [the applicant] gave a vague response, stating it was a moneylender that charged interest. When I asked for clarification on who she had borrowed money from, she stated it was an illegal moneylender and that she had not sought a loan from a legitimate financial institution because she had no collateral. When asked how much she had originally borrowed from the illegal money lender, [the applicant] gave a series of confused, contradictory and evasive answers. She initially stated that in 2004 she had been given gold and had initially borrowed [amount] rupiah and had then borrowed more funds that totalled to around [amount] rupiah. She said the purpose of the loan was to pay for her husband’s [medical] treatment. [The applicant] then appeared to state that she had taken out a second loan, for [amount] rupiah in 2006. She then appeared to change her answer and stated that she had not known about the initial loan, that her husband had borrowed these funds from the moneylender and she had not found out about the loan until she was contacted by the moneylender after her husband had died in 2008. She said that the moneylender had contacted her and told her that her husband had owed [amount] rupiah and she needed to pay it back.

11. When I clarified this with [the applicant] and asked if she had been aware of any debts prior to her husband passing away in 2008 she changed her answer again and stated that she had been aware of loans but did not know how much was owed. She said that she told the moneylender in 2008 that she did not have any money to pay him back and that she was verbally abused by him. When I asked [the applicant] if she had paid the moneylender back after 2008 she initially said that she was working in a shop and she could not afford to make any repayments. When I clarified with Ms Hernitiati if she had paid any money to the money lender between 2008 and 2016 (when she left for Australia), she gave a confused response, stating that she had repaid some instalments during this time. When I asked [the applicant]  why she had responded moments earlier that she had not paid any money back to the moneylender, she stated that what she had meant that she could not pay while working in the shop in Indonesia and that she could not afford to pay until she had begun working in Australia. When I again clarified if she had made any repayments between 2008 and 2016 in Indonesia, [the applicant] stated that she had not made any repayments for eight years because she could not afford it (discussed further below).

12. When I asked [the applicant] about the specific nature of the threats made by the moneylender, she stated that she was told that if she did not pay, she would have to become a prostitute or else go to jail. She said the threats were verbal in nature. I note there was some confusion around when the threats were made and what contact she’d had with the moneylender (discussed further below). [The applicant] said that she had not reported the threats to the police because she believed that she was at fault for owing the money and that without money the police would not help her anyway. She said that she had discussed the issue with a lawyer who could not help her.

13. When asked specifically about what she feared if she were to return to Indonesia in the foreseeable future, I note that [the applicant] initially gave a vague and off-point response, stating that she was the backbone of her family and that she could not go home until her debts were repaid. When I clarified what her fears were if she were to return, [the applicant] stated that she was worried she would go to prison because she had not repaid the money she claimed to owe. She said that she feared the moneylender would pursue her legally, and she would go to jail. The then said she feared threats of a sexual nature from the moneylender and that she may be forced into prostitution.

14. When asked if there was any other basis upon which she feared harm if she were to return to Indonesia in the foreseeable future, other than the claimed issues relating to the loan/debt, [the applicant] said there was not.

    Consideration of claims and evidence

    The relevant law

15. 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.

16. 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.

17. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

18. 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.

19. 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

20. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis of evidence and findings

    Credibility

21. I acknowledge 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. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2] 

    [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

    [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

22. I note that there were significant credibility issues arising from specific information provided by [the applicant]. As a result, I have serious concerns about the reliability of [the applicant’s] evidence about her claims relating to her fear of harm from a moneylender in Indonesia. I note that [the applicant] provided vague, confused, unspecific and at times contradictory and inconsistent evidence when questioned about specific details of her claims related to the claimed debt. Her responses were often off-point and evasive. This included evidence related to the general details of the claimed loan(s); who had taken out the loan and when; when [the applicant] had become aware of the claimed loan; the nature of the contact she’d had with the claimed moneylender; the reasons why [the applicant] had decided to come to Australia in 2016 and whether she had fled from the claimed threats while still in Indonesia. I also consider a number of aspects of her evidence to be internally inconsistent, including her evidence related to the specific threats she claimed to fear and how she was able to avoid making any repayments on the claimed debt for a period of eight years prior to her departure for Australia in 2016. At the hearing, I explained to [the applicant] that I had significant, specific concerns about her credibility and various aspects of her evidence and gave her an opportunity to respond (further detailed below).

23. For the following reasons, I do not accept [the applicant’s] claims to have borrowed money from a moneylender in Indonesia to be true. Firstly, I note that [the applicant] gave vague, inconsistent and/or contradictory evidence in relation to key (and often elementary) aspects of her claims. For example:

    ·When asked if she had made any repayments to the moneylender after she had found out about the claimed loan in 2008, [the applicant] stated that she had not made any repayments because she earned too little income from her job and could not afford to service the debt. When I clarified this point with [the applicant], she changed her answer and stated that she had made some repayments. When I asked her why she had told me moments earlier that she had not, she gave a confused and at times off-point response stating that she did not make repayments because she could not afford to but had made repayments after coming to Australia in 2016. I clarified this point again with [the applicant], she stated that she had not made any repayments to the moneylender for a period of eight years between 2008 (when she claimed to have found out about the loan) and 2016 (after she had arrived in Australia).

    ·At the hearing, when asked what contact she’d had with the moneylender who she claimed to have been threatened by, [the applicant] stated that she had never met the moneylender. When asked how she knew of the claimed threats, she said that the moneylender had threatened her via her family. She stated that was not present when these threats were made. When sought clarification of whether she had ever met the moneylender in person, [the applicant] changed her answer and stated that she had met the moneylender on several occasions. When I highlighted this inconsistency to [the applicant] at the hearing and asked why she had told me moments earlier that she had not met the moneylender, she gave a vague and confused response, stating that she had been hurt by his verbal abuse and had run away from him.

    ·In her protection visa application, [the applicant] stated that she would not be able to relocate within Indonesia to escape the claimed threats because ‘I cant move anywhere, they have all my ID’. At the hearing, [the applicant] claimed that she had fled to another part of Indonesia due to the claimed threats. At the hearing she stated that in 2010 she had fled to live with a friend ‘a long way’ from her village. When I discussed this inconsistency with [the applicant] at the hearing she gave a vague response stating that she had run off with a friend in 2010 and then had been told by a different friend to go to Australia so she could pay off her debts. 

    ·At the hearing, when asked why she had decided to come to Australia in 2016, [the applicant] initially stated that she was in debt, stressed and had been verbally abused in Indonesia. A friend had suggested she come to Australia. [The applicant] then stated that she had decided to come to Australia for a holiday in 2016 and when she left Indonesia, she intended to return to there. While in Australia she stated that a friend here had told her that she should apply for protection from the Australian government so that she could work here. I note that [the applicant’s] responses to straightforward questions relating to her motivations for coming to Australia in 2016 were confused, evasive and off-point. I outlined my concerns relating to this inconsistency at the hearing and provided [the applicant] with an opportunity to comment. [The applicant] gave a confused response relating to what her friend in Indonesia had told her and then stated that she had been told that if she did not put down ‘holiday’ as her stated reason for visiting Australia, she could not work here. When I noted to [the applicant] that she had earlier told the Tribunal at the hearing both of these apparently contradictory things, she gave a confused response and appeared to agree.

1. Secondly, I found several aspects of [the applicant’s] claims to be vague, internally inconsistent, and/or highly generalised in nature. For example:

   ·As outlined above, [the applicant’s] evidence relating to the particular threats she claimed to have received from the moneylender, and in particular the harm that she claimed to fear if she was to return to Indonesia in the future, was brief, highly generalised and, ultimately, unconvincing.

2. As noted above, I outlined each of these concerns to [the applicant] at the hearing and gave her an opportunity to comment. I have considered the explanations [the applicant] gave for these inconsistencies, discrepancies, generalities and/or concerns. I found [the applicant’s] explanations for them to be unconvincing and I do not accept them.

   Conclusion on the claimed fear of harm from a moneylender

3. As noted above, I have serious concerns about the credibility of [the applicant’s] evidence relating to her claimed fear of harm from a moneylender in Indonesia. I note that [the applicant] provided evidence that was at various times vague, confused, inconsistent, contradictory and/or highly generalised when questioned about specific details of her claims.

4. I am mindful that memories can be dimmed by the passage of time. I accept that it is not always possible or necessary for an applicant to remember specific details or dates. Even when making allowances for such factors, given the highly significant nature of the events being discussed and regarding the serious threats she claimed to have been subjected to, I have formed the view that it could be reasonably expected that [the applicant] would have had a more precise and coherent recollection of the specific terms and details relating to the claimed debts and her associated claimed fear of harm from a moneylender in Indonesia. 

5. Considering all of the evidence cumulatively, and having regard to [the applicant’s] personal circumstances and narrative as a whole, I do not find her to be credible. I find various aspects of [the applicant’s] evidence in relation to having been threatened by a moneylender in Indonesia to be vague, inconsistent, improbable and, ultimately, unpersuasive. I note that there is very little documentary evidence to corroborate any of [the applicant’s] claims. For the reasons outlined above, I do not accept [the applicant] took out loans from an illegal moneylender in the past, nor do I accept she was unable to repay those loans. I do not accept [the applicant] was threatened, harassed, targeted or otherwise pursued by an illegal moneylender or anybody else for reasons relating to a debt/loan or for any other reason. I do not accept [the applicant] left her home in Indonesia and travelled to Australia (or elsewhere in Indonesia) to escape the illegal moneylender. I do not accept that [the applicant] faces any risk related to potential criminal prosecution by the Indonesian government relating to unpaid debts because I do not accept that she took out a loan and/or accrued debts in the first instance. I find that [the applicant’s] fears of persecution on this basis are not well founded.

6. As [the applicant] has not claimed to fear harm for any other reason, I do not not accept that she has a well-founded fear of persecution if he returns to Indonesia, now or in the reasonably foreseeable future.

   Conclusion – refugee grounds

7. Having considered [the applicant’s] claims both individually and cumulatively, all of the available evidence and relevant country information, I find that [the applicant] does not face a real chance of persecution on return to Indonesia for any reason in the reasonably foreseeable future and that her fear of persecution is not well-founded.

8. For the reasons given above, I am 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).

   Complementary protection

9. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). 

10. In considering whether there is a real risk that the applicant would suffer significant harm if returned to Indonesia, I have noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[3]

    [3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]

11. [The applicant] has not advanced any claims indicating that she considers she would face a real risk of significant harm if returned to Indonesia other than for the reasons discussed above relating to her claims under the refugee criterion. Given I do not accept that [the applicant] faces a real chance of suffering persecution involving serious harm if she returns to Indonesia, I also find, having regard to the findings of fact set out above, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Indonesia, there is a real risk that she would: suffer significant harm in the form of being arbitrarily deprived of her life; have the death penalty carried out on her; be subjected to torture; be subjected to cruel and inhuman treatment and punishment; and/or be subjected to degrading treatment or punishment by an illegal moneylender and/or their agents, the Indonesian authorities or anyone else.

12. Consequently, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

13. 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 criteria in s.36(2).

    DECISION

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

    Scott Clarey
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or oMsion 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 oMsion could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or oMsion:

    (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 oMsion that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or oMsion:

    (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 oMsion 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 oMsion arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …