1802078 (Refugee)

[2024] AATA 1306

1802078 (Refugee) [2024] AATA 1306 (7 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802078

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Bryn Butler

DATE:7 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 07 March 2024 at 9:55am

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – an incident with a former co-worker – significant inconsistency – not satisfied the applicant has a real chance of suffering serious or significant harm – claims do not have a credible basis – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 48, 424, 499

Migration Regulations 1994, Schedule 2

CASES

SZBYR v MIAC (2007) 235 ALR 609

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

Background

1. The applicant is a [age]-year old man who is a citizen of Malaysia. This is a review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Protection visa application

2. The applicant last arrived in Australia on [date] July 2017 as the holder of an electronic travel authority. He applied for the protection visa on 3 October 2017. Prior to his last arrival in Australia, he was in Australia between [date] April 2017 and [date] June 2017, and for short periods in 2014 and in 2015.

3. In the visa application, the applicant set out his claims for protection, which are summarised as follows:

   ·The applicant stated that he murdered one of his customers on [date] August 2017 and the police were looking for him. He stated that the customer was mad with his staff as the staff had been rude to him, and he was fighting with his staff. He said that the customer broke glass and was uncontrollable, and so the applicant came from behind and choked the man with the intention of stopping the man from destroying everything. He said the way he choked the man was very hard and so the man stopped breathing. The applicant said he panicked and called an ambulance but when they arrived, they confirmed the man was already dead. The applicant said he ran away and hid at his mother’s house in [a city], then bought a plane ticket and flew to Australia.

   ·He said the police are looking for him, and that they came to his house and spoke to his wife. The police told his wife if the applicant returns to Malaysia, they will catch him and he will be sent to the gallows.

4. The delegate refused to grant the visa on 8 January 2018 on the basis that they were not satisfied that the applicant was owed protection by Australia.

   Application for review

5. The applicant applied to the Tribunal on 26 January 2018 for review of the delegate’s decision.

6. The Tribunal invited the applicant to submit a pre-hearing information form, which gave the applicant an opportunity to update his contact details and provide further details on his claims for protection. In the form, which was submitted to the Tribunal on 13 October 2023 the applicant said he would like to change the reason he needs to stay in Australia. His statement is summarised as follows:

   ·The real reason is he had been blackmailed by a guy who he hurt (who is not dead as was stated in the visa application). He would like to change the reason in the protection visa application. He said he has proof and a strong reason.

   ·He stated that in July 2017, he pushed a guy into a drain after an argument and the guy was injured. The day after this happened, he was so scared and start planning to leave Malaysia. He has a spouse and a child, and he left them and flew to Australia to plan their new life. In October 2017 he invited his wife and child to come to Australia to start a new life.

   ·A few months after his wife and his child arrived in Australia, he was still receiving calls from the guys. He ignored the man. Until then in 2021, the guy sent the applicant a few messages saying that he and his family are still not safe to return to Malaysia.

   Hearing

7. The applicant appeared before me on 29 February 2024 to give evidence and present arguments. The hearing was a combined hearing with case number 1807437. The applicants in 1807437 are the applicant’s wife and son (aged [age]). The applicants consented to having a combined hearing as this was his preferred option.

   Criteria for a protection visa

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Consideration of claims and evidence

14. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion.

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

    Applicant’s personal background

16. The applicant married his wife in 2015, and has two sons. The elder son was born in Malaysia and is an applicant in his wife’s review application. Their second son was born in Australia.

17. The applicant said that he was born in Kuala Lumpur, Malaysia. He completed his primary and secondary education in Malaysia, and lived in the region near Kuala Lumpur until he came to Australia in 2017. He said that he came to Australia in April 2017 to do some research about where his family could live, and he then returned to Malaysia in June 2017, before entering Australia again on [date] July 2017.

18. After completing his secondary education, he worked in [an] industry for a few years, before moving into the retail sector. In 2010 he got a job at [a workplace] and had [roles]. In 2012, the company changed its management and they decided to sell [products]. As the applicant is familiar with [specified] products, he left the company and got a new job at a company called [Company 1], [where] he worked from 2012 to 2014 as an [occupation] at three stores. The applicant said that [Company 1] is the biggest [product] reseller in Malaysia. He said that in 2014 he got another job at [Company 2], [where] he worked until 2017 when he came to Australia.

19. The applicant said that in Australia he has worked in a number of industries, including [deleted].

    Incident with man in Malaysia and threats from man

20. The applicant said that his fear of returning to Malaysia stems from an incident with a man, a former co-worker, where the applicant pushed the man into a drain. He said that the man then made threats against the applicant following the incident. He said that the man was called [Mr A], and he first met him at [Company 3]. The applicant said he was working as a store manager at the time and [Mr A] was a new employee. He said that he tried to be nice to [Mr A], and one day he needed to talk to him about his attitude, however things got tense and the applicant and [Mr A] began to argue. He said that from that time, [Mr A] did not like him as his manager. I asked the applicant what they had argued about, and the applicant said it was about the man’s attitude towards customers but did not provide further detail about the man’s attitude problem or what specific events had prompted the discussion, other than to say he could feel the applicant talked behind his back and he didn’t take note of those things.

21. The applicant said that when he started his new role at [Company 1], [Mr A] was already working there, and this was because staff who were trained in [specified] products, like the applicant and [Mr A], got jobs at other [workplaces] after [Company 3] changed its business. I asked the applicant about the situation with [Mr A] and he said that it was the same and that [Mr A] didn’t want to talk to him. The applicant said that the day that things went really bad was at [Company 1]. He said he needed to go to the basement and saw [Mr A], and they both went to have a smoke together. He said that they had a disagreement and that things got tense at that time, and that it led to the applicant pushing [Mr A], who fell into a drain and sustained a cut to his head. The applicant said he tried to assist [Mr A], but he then realised [Mr A] had become crazy and wasn’t himself anymore, so he ran away from [Mr A] while [Mr A] was trying to grab him. I asked the applicant whether there were other people around, and he said that it took place in a small alleyway so there weren’t many people around. He said that [Mr A] pushed him first, and that led to the applicant pushing him back. He said that this was the last time he had seen [Mr A], and that this was before he was married. He said that he didn’t tell anyone at work about the incident and two weeks later he changed jobs and went to work at [Company 2]. I asked the applicant whether anyone asked about [Mr A] at [Company 1] (before he left) and he wasn’t sure.

22. Despite saying that the incident at the drain was the last time he saw [Mr A], the applicant later said that he saw [Mr A] at a mall in 2017, and that at this time he was working at [Company 2]. He said that [Mr A] threatened him by giving him a look.

23. The applicant provided to the Tribunal a screenshot of [a social media] post in which he posted a picture of himself, his wife and his sons. The post is dated 1 January 2022. On the post, a person has commented saying ‘You can be happy now I challenge you come back Malaysia I’m searching for you I’ll locate you and you will know wht will happen to you’. The applicant also provided a screenshot of a conversation on the [social media] app with the same person who made the comment. In the conversation the person said, on 10 October at 00:10 ‘Hey bro I have seen you very happy in Australia. I’m just waiting for you come back to Malaysia and you will see wht will happen to you.. I have your number I have your address I’m looking for you eager you left since 2017 until now I will nvr let you live. I’ll chase after you until the end of your life.’ At 15:11 on the same day, the same person says, ‘I’m [Mr A’s name] Malaysia’. I asked the applicant why he had provided the screenshot on the same day as the hearing. He said that he didn’t think he could have provided it earlier. The applicant said he couldn’t remember when the screenshots of the post and messages were taken, but that the messages were from October last year (2023). The applicant confirmed that he had not received any other messages from a person purporting to be [Mr A].

24. I put to the applicant and his wife that I had significant concerns about what I had been told about the incident and the fear of harm, and that based on those I may not accept that the incidents occurred as claimed, because of inconsistencies in the timeline, the fact that he had not presented the claim in his protection visa application and that I had concerns that the [social media] messages and comment were not from a person called [Mr A] who had been in a fight with him.

25. I have considered the applicant’s responses to my concerns. However, I do not accept that the applicant pushed a person he worked with and that this person fell into a drain, or that he was threatened by a person who fell into a drain because of such an incident, or that he has ever been threatened. My reasons for reaching this conclusion are as follows.

26. Firstly, the applicant submitted to the Tribunal on 13 October 2023 the pre-hearing information form in which he referred to an incident taking place in July 2017 whereby he pushed a guy into a drain after an argument and the guy was injured, and that after this he came to Australia. At the hearing, the applicant clearly said that the incident happened before he was married (he was married in 2015) and that it took place when he was working at [Company 1], in 2014. The applicant said that he is not always good at remembering dates. However, the applicant was in a very different stage of life in 2014/2015, compared to 2017. I do not accept that the applicant would forget the timing of the events to such an extent and include in a written response that the incident took place in 2017 just before he came to Australia, when he was married and had a son, if those events had taken place two or three years earlier at a time in his life when he wasn’t married and had no children, and well before he came to Australia. I find that the timing of the incident, as stated in the pre-hearing information form and at hearing is significantly different and do not accept the applicant’s explanation for this. This significant inconsistency in the applicant’s timing of events has led me to question whether the incident took place at all.

27. Secondly, I put to the applicant that his protection visa application did not include any claims related to an incident where a man fell into a drain, and instead referred to the applicant murdering a person in August 2017 (which would have been after he had come to Australia). Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented before the primary decision was made.

28. I asked whether there was a reason why he hadn’t raised the claim about the incident with [Mr A] in his protection visa application or to the Department before the delegate made their decision. He said that at the time he wasn’t familiar with the protection visa application process and so he put a reason which he thought would ensure he would be granted a visa and he wasn’t thinking properly. I asked him why he thought that declaring himself to be a murderer would ensure he would be granted a protection visa. He said that he didn’t think the story about the incident with the person falling into the drain would have led to a successful outcome for him. I am not satisfied that the applicant has a reasonable explanation for why the claim about the 2017 or 2014 incident with the man and the drain was not made in the protection visa application, and do not accept that he thought his first claim about being a murderer would be successful in place of, what he claims to be, his genuine claim about fearing harm from a living person he claims he pushed into a drain. The applicant’s response indicates that he was prepared to present to the Department claims which he thought, at the time, may lead to a successful outcome for him, whether or not they are based in fact. This has caused me to question the veracity of his new claim, to fear harm from a person he pushed into a drain, or whether after he received the refusal from the Department and did more research, he formed the view that the original claim would not be successful so he presented a new claim to the Tribunal which he now thinks would be successful, but is also based on incidents which did not occur. Given that the applicant did not refer to the claim about the man falling into the drain and subsequent threats in the protection visa application and I have not found he has a reasonable explanation for why the claim wasn’t presented before the primary decision was made, I find that this detracts from the credibility of the claim made about fearing a man who the applicant says he pushed into a drain and draw an unfavourable inference to the credibility of the claim.

29. I also have concerns about the description of the event that the applicant said took place in 2014 and the applicant’s actions at work following the incident. I asked the applicant why the man disliked him, and he provided a vague response, saying the man had an attitude problem. I asked about any specific incidents that led to the man’s dislike of the applicant, other than the discussion he had with him when he was at [Company 3], and the applicant did not know. I also asked whether there were any repercussions after the incident at the drain, and whether anyone at his work asked about the man not returning to work. I do not accept that the man would have developed such a dislike for the applicant from one discussion at a previous employer ([Company 3]) that he would start a fight with the applicant at [Company 1] in an alleyway. The applicant also said there were no repercussions at work for him and that some people had asked him where [Mr A] was. I asked him when he changed jobs and left [Company 1]. He said that he changed jobs within two weeks of the incident but he was not clear on why he changed jobs at that time, but settled on it being because he was offered more money at [Company 2] and that it wasn’t because of the incident with [Mr A]. I do not accept that the applicant, who claims he feared for his life, would not have made enquiries at his workplace about the man’s whereabouts, given he said he was in a senior position and he worked there for two weeks after the incident, and only left his job because of a career opportunity, and not because he feared harm.

1. I also have concerns about the [social media] post with a comment and messages the applicant has provided to the Tribunal, and whether it was from a person who the applicant got into a fight with, or whether it is from a different person. The messages, and the comment, were made by an account by the name of [name]. There is no indication that this account belongs to a person called [Mr A] or [different spelling of Mr A], other than the person stating they are [Mr A] 15 hours after sending the first message threatening the applicant. I also put to the applicant that the messages were sent three days prior to him returning the pre-hearing information form (which indicated that the applicant was aware at the time that he would have a Tribunal hearing soon and would be preparing his case). The threats were made eight years after the incident at the drain which the applicant claims took place. The [social media] post which the person appears to be referring to (of the applicant being happy in Australia) was made on 1 January 2022, almost 21 months earlier. It is not clear when the comment was made, only that it was made 5 weeks before the screenshot was taken. While I accept people may hold grudges and want to take revenge, by the applicant’s account, the man did not harm the applicant while he was in Malaysia (two years after the incident), other than to give the applicant a look in 2017 during a chance encounter at a mall, and there have been no other threats during the applicant’s time in Australia other than the [social media] communication. In the pre-hearing information form, the applicant stated messages were received in 2021 (not 2023, as stated at the hearing). The applicant was prepared to present to the Department a false claim which he thought may lead to a successful outcome for him, and it is possible to prepare messages and comments on [social media] in such a way which support a person’s claims. Given my concerns, I do not accept that a man by the name of [Mr A]  who the applicant claims got into a fight with him in 2014 has sent him the messages, and made the comment on [social media], and that such a person would want to take revenge eight years after the incident, having not made any other threats since the applicant arrived in Australia, and did not make threats or harm the applicant while he was in Malaysia for two years before coming to Australia. I find that the messages and comment on [social media] were therefore prepared in such a way to support the application, and are not from a person seeking to harm the applicant or his family.

2. The applicant’s wife gave evidence that was largely similar to the applicant’s version of events. She said that the incident with the man, where the applicant had pushed him into a drain, occurred before they were married, and that they got married in 2015. The applicant’s wife said that her husband constantly received threats while he had been in Australia, while the applicant said that he had received the message on [social media] and comment on his post.[1] He said that his wife was mistaken and that it was not the case that he had received other threats. He said that the threats he was referring to were related to the incidents in 2014, 2017 and the [social media] comment and messages. I have not put any weight on the discrepancy, given it appears to have been a misunderstanding between the couple and the applicant’s wife acknowledged her error.

   [1] I put this information to the applicants under s 424AA, noting however that it appears to be an inconsistency and as such would not necessarily engage s 424A: SZBYR v MIAC (2007) 235 ALR 609 at [18].

3. I put to the applicant and his wife that they had referred to being blackmailed in their pre-hearing information forms, but they had not mentioned blackmail at hearing. I asked whether they had been blackmailed. The applicant said that he may have used the wrong word. I explained that my understanding of blackmail was that a person would have asked for money or some other favour from him, in exchange for not revealing information about him or taking some action against him. The applicant said that he had not been blackmailed. I accept that the applicant misunderstood the term, and have not placed any weight on this claim or the fact that he didn’t mention it at hearing until I asked.

4. Given my concerns about the evidence, such as the discrepancy in the applicant’s account of events in the pre-hearing information form and at the hearing, the fact that he did not refer to the claim in his protection visa application and does not have a reasonable explanation for this, the lack of detail in his account of why a person by the name of [Mr A]  did not like him, and findings on the [social media] messages, I do not accept that the applicant was involved in an incident with a man in Malaysia in which the applicant pushed the man into a drain, or that he was given a threatening look by any person at a mall in 2017. The applicant said that he did not fear harm in Malaysia for any other reason, and that the incident with this man was the only reason he didn’t want to return. As I do not accept that the incident occurred, I do not accept that there is a man who has threatened the applicant at any point, including while he has been in Australia. I also do not accept that the police are looking for the applicant, given he did not murder anyone and I do not accept that he pushed anyone into a drain. I do not accept that the applicant faces a real chance of serious harm, or a real risk, of significant harm for any reason.

   Conclusion

5. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

7. 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

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

   Bryn Butler
   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.

   …

   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.

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   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.

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