1719174 (Refugee)
[2022] AATA 4574
•31 October 2022
1719174 (Refugee) [2022] AATA 4574 (31 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1719174
COUNTRY OF REFERENCE: Malaysia
MEMBER:Brendan Darcy
DATE:31 October 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 31 October 2022 at 3:40pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – business debts – fear of physical assault – debts substantially paid down – legal penalties – bankruptcy arrangements – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2CASES
Applicant A v MIEA (1997) 190 CLR 225
MIAC v SZQRB [2013] FCAFC 33
MZZIA v MIBP [2014] FCCA 717Any 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
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Federal of Malaysia (Malaysia), applied for the visa on 29 May 2017. The delegate refused to grant the visa on the basis that the available country information indicated that the applicant would have sufficient protection from illicit money lenders in returning to his country of nationality and reference.
The applicant appeared before the Tribunal on 28 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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.
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).
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.
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
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.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born on [date] in the state of Kedah, within the Federation of Malaysia.
On Departmental file ([number]) is a copy of the biodata page of the applicant’s Malaysian passport and a copy of the applicant’s National Identification Card (MyCard).
The applicant arrived in Australia [in] March 2017 while holding a Class UD Subclass 601 (Electronic Travel Authority) visitor visa.
On 29 May 2017, the applicant lodged an application for a Class XA Subclass 866 Protection visa and was granted an associated bridging visa.
The applicant’s claims for protection were contained in his submitted 866C Form and attachments. The applicant, in summary, claimed the following:
· The applicant had acquired debt to upgrade his [product] business, but unfortunately the plans did not work out due to price fluctuations;
· The applicant sought help from his relations and friends, but none helped him;
· The applicant decided to borrow money ‘from outside with interest’ and he was unable to repay the interest as the business income was insufficient enough for daily living;
· Debt collectors were coming to his house seeking payments and were threatening the family via phone calls;
· The applicant communicated with friends in Australia and decided to leave Malaysia to work in Australia and to settle his debts;
· The applicant’s persecutors humiliated the applicant by raising their hands on him and his family members;
· If the applicant returned to his country, the money lenders will hold him to ransom, demand more money from the borrowed amount, and there would not be a guarantee to protect his life and because they were threatening his family; and
· The applicant also feared, as it has happened to others, he will be beaten, locked up, sold off to another person and enslave him and caused damages to the assets of family members.
The applicant indicated that he was married and had [number] children; that he was Tamil or Indian by ethnicity; and Hindu by religion.
A delegate acting on behalf of the Minister refused to grant the applicant a protection visa on 7 August 2017.
On 24 August 2017, the applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal. A copy of the decision record was attached.
At the end of the hearing, no post hearing submissions were required.
There are no non-disclosure certificates on the applicant’s departmental and Tribunal files.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference
The applicant has provided copies of his Malaysian passport biodata pages and national identity care. On these bases, and with no information to the contrary, the Tribunal accepts the applicant is a national of the Federation of Malaysia. It has assessed the applicant’s claims that he is owed Australia’s protection obligations against Malaysia as his country of nationality and reference.
Credibility assessment and accepted personal circumstances.
Overall, the Tribunal found the applicant to have provided frank and credible oral testimony when he was provided to elaborate on his otherwise vaguely written claims for protection.
Based on the applicant’s credible oral evidence, the Tribunal accepts following about the applicant’s personal circumstances:
· The applicant is [an age]-year-old man from Kedah who is Tamil by ethnicity and Hindu by religion. The applicant was raised in Kedah and lived and worked most of his life in that Malaysian state before coming to Australia;
· The applicant can speak read and write in the Tamil, Bahasa Malaysian and English languages, and he completed the equivalent of [grade] in the Australian school system, and undertook basic training as [an occupation 1];
· Before his departure from Malaysia, the applicant has worked variously in running his own [service] business and his own [product] business in Malaysia, and had worked in [Country 1] in a [business] as [an occupation 2];
· Since travelling to Australia in 2017, he has worked in low skills jobs at farms, factories and for [a named] company;
· The applicant has been in a long-term marriage with his wife with whom he had [specified children]. His wife, who currently resides in Kedah, has a medical condition which prevents her from working;
· The applicant’s [child] is completing training in [Country 1] after finishing his [specified] studies; while his [other children] are studying full time in Malaysia and are [doing specified studies] respectively; and
· The applicant has been remitting about the equivalent of 5000 Malaysian ringgit (or about 1600 Australian dollars) to his family in Malaysia since working in Australia
Real chance of serious harm or a real risk of significant harm arising from ah long loan sharks
The applicant claimed that he had been a successful businessperson who had employed as many as [number] employees. However, he had difficulties with the business in or around 2013 and borrowed money from as many as three illicit money lenders or ah longs (the common Chinese Malaysian word for loan shark) to expand his business. However, he continued to have financial difficulties. The applicant said that when he departed Malaysia for Australia, he owed cumulatively [amount] Malaysian ringgits to these ah longs.
Loan shark activities have been a persistent and deep-rooted feature of Malaysian society for several decades.[1] Illegal money lending attracts borrowers rejected by formal financial institutions, who do not meet the minimum income requirements for legal loans or who have too many unpaid outstanding loans to qualify for additional borrowing. Similar levels of loan shark lending are observed in neighbouring countries, with transnational syndicates operating to fund lenders and encourage similar behaviour and techniques in East Asia.[2] The percentage of Malaysia’s population of 31 million that engage with loan sharks is unknown. The nature of the activities is informal, and loan size and loan terms are determined through private agreements between borrowers and lenders.
[1] Y. G. Guan, ‘The Long and Short of the "Along" Problem’, May 2003, The Malaysian Bar[2] Y. G. Guan, ‘The Long and Short of the "Along" Problem’, May 2003, The Malaysian BarThe Tribunal enquired whether he had been paying down those debts and to the extent of the applicant’s outstanding debts to the ah longs. The applicant said he had been paying the debts down by instalments since working in Australia, and that he currently owes [amount] Malaysian ringgits to the ah longs. The Tribunal asked whether that amount was owed to each of the three ah longs. The applicant responded that it was not; it was a cumulative amount owing.
The Tribunal asked whether the applicant would be able to find the [remaining amount] ringgits owing, given it was equivalent of [amount] Australian dollars – a relatively small amount of money. The applicant responded that it was.
The Tribunal accepts that the applicant, at the time he departed for Australia and at the time he lodged an application for a protection visa, held a genuine fear of being physically ill-treated by ah longs and their debt recovery practices because he has difficulties earning sufficient income for his overall outstanding debts. It accepts that illicit money lenders did convey threats to him, and he had personally held fears of beatings, extortive abduction, debt bondage and vandalised property, as outlined in the written claims.
However, at the time of decision, the applicant claimed only to owe a small of amount of money to ah longs and that he had the capacity to repay them completely, should he return to Malaysian in the reasonably foreseeable future. The Tribunal accepts this.
At no stage did the applicant claim that he was unable to repay these debts or that he would be targeted by the criminal activities of ill-money lenders for any reasons based on his race, religion, nationality, membership of a particular social group or his political opinion.
Given these accepted circumstances, the Tribunal finds that while the applicant has a chance of serious harm, namely through significant physical ill-treatments, arising from these outstanding debts to illicit money lenders, the Tribunal finds the chances of such serious harm to be remote and far-fetched. The chances of such harm do not amount to being a real chance of serious harm for any of the five reasons mentioned under s 5J(1)(a), should he return to Malaysia.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test for complementary protection imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugee Convention definition. It follows that the Tribunal is not satisfied 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 the applicant will suffer significant harm
Having considered the applicant’s claims about outstanding debts to illicit money lenders, it follows that the applcaint does not meet the criteria as required by s 36(2)(a) and s 36(2)(aa) in this regard.
Real chance of serious harm or a real risk of significant harm as a bankrupt
The applicant claimed that one of the reasons he departed Malaysia in early 2017 was because he was unable to repay his bank loans, and that the bank had moved to repossess his vehicles for which he had two loans and to sell his house in Kedah. The applicant claimed he feared that if he did not leave for Australia, there would be an exit ban on him departing internationally once formalised legal proceedings commenced against him.
In this regard, the applicant claimed he had borrowed [amount] Malaysian ringgits for two vehicles related to his business and acquired [an amount] Malaysian ringgit mortgage for his home. He also said that he had a credit card debt amounting to [amount] Malaysian ringgits. The applicant further stated that after he departed Malaysia, he was aware there was a consolidation of his lawfully acquired debts and estimated that he owed at least [amount] Malaysia ringgits. He was not sure of the precise amount but was confident that because he had not engaged any court proceedings for the last five years in relation to this debt, the amount owing was subject to penalties.
Given the Tribunal considers the applicant to be a credible and reliable person, the Tribunal accepts this account.
In Malaysia, there are bankruptcy laws and practices as well as a Department of Insolvency and Credit Counselling and Debt Management Agency to avoid the prolonging of debt issues faced. It is estimated that there 294,000 bankrupts in Malaysia with about 5000 new bankrupts declared annually.[3] The Official Portal of the Malaysia Departments of Insolvency indicates that bankruptcy does not prevent a person from working, except in some limited areas. Bankruptcy can include limited used of an existing credit card and requires bankrupts not to travel overseas without a court order. Case administrations of bankrupts are automatically charged after 5 years or aged over 70 or conditionally on poor health grounds.[4]
[3] 294,000 Malaysians bankrupt, says insolvency dept chief, FreeMalaysiaToday onlie, 18 September 2017, >
Given the general vagueness about the amount the applicant owes to a licensed financial institution, the Tribunal assesses that the applicant owes around [amount] Malaysian ringgits (or about [amount] Australian dollars) to his creditors and that it would have to paid down over time in instalments, if the applicant were to return to Malaysia. The Tribunal reasonably characterises this debt to be sizable and onerous, but not crippling.
The Tribunal accepts that the applicant, should he return to Malaysia, has a real chance or a real risk of not being shielded against lawful litigation, including bankruptcy proceedings. The Tribunal further accepts that bankruptcy on the applicant will negatively impact on his ability to generate income, and meet the cost of living for himself, his wife and his children. The applicant, furthermore, will have a real chance or a real risk of not being allowed to travel without the permission of a court order until the bankruptcy is discharged.
However, the applicant will be able to return to their usual residence in Kedah with his wife and he will be able to find work, given he is highly motivated with a strong work ethic. While the applicant has a real chance of harm arising from debt collection and even bankruptcy, in so much as he will face challenges and difficulties in both repaying creditors and providing for himself and his family, the harm does not amount to serious harm, including significant economic hardship. In making this finding, the Tribunal acknowledges the he applicant is working in Australia to support his adult children achieve their tertiary educational goals. However, in returning to Malaysia, the applicant is not required to continue that financial support. It is open to his adult children to find part-time or full-time work and support themselves while he is working, supporting his disabled spouse and paying down debts in instalments, even if this adversely impacts on their studies.
The applicant’s accepted personal circumstances strongly indicate to the Tribunal that the applicant will not suffer significant economic hardship or any denial of economic rights or capacity to earn a livelihood or any other harm non-exhaustively listed in s.5J(5) or any harm that would satisfy s.5J(4)(b).
The Tribunal notes the applicant conceded that he did not hold a well-founded fear of persecution because he would not be harmed for any of the reasons based on his race, religion, nationality, membership of a particular social group or political opinion, if he returned to Malaysia.
The Tribunal accordingly finds that it does not accept that the applicant faces a well-founded fear of persecution for reasons mentioned in s.5J(1)(a) in this regard as it does not accept persons facing insolvency or bankruptcy arrangements in Malaysia belong to membership of a particular social group. The Tribunal further finds that there is no persecution in this case that involves both systematic and discriminatory conduct, as the claimed persecution is not distinguished from fleeing from prosecution or punishment of a law of general application, and cannot stamp the applicants with the mark of “refugee”.[5] As the real chance of anticipated and prospective harm arising from bankruptcy is not systematic or discriminatory, the Tribunal finds that the applicant does not satisfy any of the elements of subsections.5J (4)(a),(b) or (c).
[5] Applicant A v MIEA (1997) 190 CLR 225, at 233
In assessing this claim regarding fears of harm arising from bankruptcy, the Tribunal accordingly finds that the applicant does not have any well-founded fear of persecution for any reasons mentioned in s.5J(1)(a), in returning to either his home state of Kedah or anywhere else within Malaysia, either now or into the foreseeable future, as required by s.36(2)(a).
In considering the alternative complementary protection provisions, the Tribunal is satisfied the applicant, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, will suffer a real risk of harm, but not significant harm arising from lawful debt recovery, insolvency or bankruptcy proceedings. Significant harm is different from the concept of serious harm as required by 91R(1)(b)/s.5J(4)(b) in the context of s.36(2)(a).[6] The Tribunal has already made a finding that the applicant has the capacity and inclination to find work anywhere in Malaysia, including Kedah. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support he and his wife, if removed from Australia, it does not accept the applicant will not be able to access paid employment anywhere in Malaysia and meet his lawful debt recovery or bankruptcy obligations, including further legal proceedings, as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s36(2A). Furthermore, the Tribunal finds there is no intention in Malaysian laws that enable the recoverees of a licensed financial institution’s debt, or in its insolvency and bankruptcy laws or practices, to inflict significant harm on the applicant. 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 for Malaysia, will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subject to degrading treatment or punishment, arising from his accepted claims about bankruptcy claims.
[6] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].
Having considered the applicant’s claims about outstanding debts to licensed financial institutions and the operation of laws to recover such debts in Malaysia, it follows that the applicant does not meet the criteria as required by s 36(2)(a) and s 36(2)(aa) in this regard.
Cumulative findings
At no stage did the applicant advance or contend that he faces a real chance of serious harm, or a real risk of significant harm based on his race, his nationality, his religion, his membership of a particular social group or his political opinion, imputed or otherwise, or any other reason including on health and socio-economic grounds.
There are no more residual claims to examine in this application for review.
Having considered the applicant’s claims, both individually and cumulatively, the Tribunal accepts that the applicant faces more than a remote or far-fetched chance of harm arising from debts owing to any illicit money lenders and to licensed financial institutions who will undertake lawful proceedings against the applicant. However, any real chance of harm of these combined circumstances do not amount to serious harm for any reasons outlined in s.5J(1) of the Act, in returning to Malaysia in the reasonably foreseeable future.
The Tribunal accordingly finds that the applicant does not have a well-founded fear of persecution that satisfies 5J(1)(a),(b) or (c) and that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or within the meaning of refugee as required by s.5H(1).
Having considered all the applicant’s accepted claims and circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Federation of Malaysia, there is a real risk of the applicant will suffer harm. However, it is not satisfied that the applcaint’s cumulatively considered circumstances amounts to him suffering a real risk of significant harm by way of him being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).
Conclusion
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
MemberAttachment - 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.
…
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.
…
Association website
Association website; K. Lang, et al, ‘Lending to the Unbanked: Relational Contracting with Loan
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