1804714 (Refugee)

[2022] AATA 608

1804714 (Refugee) [2022] AATA 608 (25 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1804714

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:25 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 25 January 2022 at 3:05pm

CATCHWORDS
REFUGEE – protection visa – China – particular social group – victim of loan sharks – business loan – fear of physical violence – threats from criminal gang – state protection – prosecution of illegal lenders – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 January 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant who claims to be a citizen of China, applied for the visa on 22 September 2017.

2. The Department delegate’s decision was lodged with the Tribunal.

3. The applicant attended a Tribunal hearing on 20 January 2022 to give evidence and submissions. The Tribunal also took evidence from a witness ([Mr A] – who the Tribunal understood was the applicant’s partner). The Tribunal was assisted by an interpreter at hearing.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Meaningful opportunity to give evidence and submissions:

11. At hearing, the applicant said she was not always ‘good at expressing’ herself. The witness subsequently said the applicant was inter alia not able to ‘give a full sentence’ at hearing. The Tribunal acknowledges the applicant was not represented but there was no independent evidence, or apparent signs during the hearing, that the applicant was intellectually challenged or otherwise unable to provide her evidence. The Tribunal also acknowledges that on occasion, in order to clarify and/or confirm her evidence, the applicant was asked to answer questions ‘yes’ or ‘no’ – though an opportunity was then sometimes provided to explain more fully. The Tribunal also asked the witness on one occasion not to give evidence for the applicant; and the Tribunal then advised he would be allowed to make submissions later (later in the hearing, the witness was provided with an opportunity to provide witness evidence – and same has been referred to below).

12. As the hearing was conducted during the COVID-19 pandemic, and after considering the case, the Tribunal decided to proceed with a telephone hearing. When giving his witness evidence, the witness said (words to the effect) ‘there were many things which could not be expressed by phone’. When asked to explain, the witness did not say anything material. The witness also said he was not allowed to speak during the hearing, but as noted herein, the witness provided evidence inconsistent to that of the applicant so the Tribunal sought to confirm/clarify that evidence the applicant wished to provide. The witness also said the Tribunal did not understand what China was like; though given the independent sources cited herein, the Tribunal was eventually satisfied it has been able to understand sufficient to make a finding.

13. That being said, the Tribunal acknowledges it is obligated to try to ensure an applicant is given a meaningful opportunity to put evidence and submissions in support of their case, including at a hearing. After having considered all the evidence and submissions, the Tribunal believes the applicant was provided such an opportunity.

    The applicant’s receiving country:

14. The ethnic Han applicant ([DOB]) lodged a photo-copy of the biodata page of her Chinese passport with the Department (expiry date XXX 2023[1]). The Tribunal accepts the applicant is a citizen of China and that China is the applicant’s receiving country.

    The applicant’s migration history:

    [1] PDF – p. 3 (‘PDF’ refers to the merged Department file on CASEMATE dated 7 October 2021).

15. The applicant said she lawfully departed China.[2]

    [2] PDF – p.27.

Date	Event Details
29/08/2017	Granted Class FA subclass 600 (Tourist) visa
[September 2017]	Arrived in Australia
22/09/2017	Lodged Protection visa (PV) application
31/01/2018	Failed to attend scheduled PV interview

The applicant’s claims:[3]

[3] PDF – from p.34.

1. The applicant did not attend the Protection visa (PV) interview scheduled with the Department. The Tribunal again acknowledges the applicant was not represented; however, neither did she respond to the Tribunal s.424(2) letter dated 20 October 2021 (response due date 3 November 2021).

2. In support of her PV application, the applicant stated:

   ·     She was born in Hunan and resided there for approximately 17 years; at which time she travelled to and resided in Shanghai (approx. 1,000kms distance from Hunan)

   ·     She subsequently married and one male child arose from that union (DOB: [specified]). However, later the applicant divorced her husband (in 2013)

   ·     At hearing, and when initially asked, the applicant said her hukou (household registration) remained in Hunan. Her witness then spoke up and said the hukou was in Shanghai, and the applicant had then agreed this was correct. When the Tribunal noted this was inconsistent with her prior claim, the applicant said that after the birth of her child, she and her then husband (whose hukou was in Shanghai), decided to register their son in Shanghai in order for him to access the public services that were available to persons registered there. The Tribunal will accept this is correct and that the son’s hukou is located in Shanghai. Given the applicant married a person whose hukou is in Shanghai, the Tribunal will also accept the applicant’s hukou is in Shanghai

   ·     She is able to contact her family in China

   ·     When discussed at hearing, the applicant said she is able to contact her mother and father in Hunan around twice per week, and she is also able to speak with her son in Shanghai, around twice per week. Amongst other things, she said she sends money to her parents and she said her son now works as [an Occupation 1]. Both the parents (for around [number] years in Hunan), and the applicant’s ex-husband and son (for over 20 years in Shanghai) continue to live in their same premises

   ·     Later, the applicant’s witness said the applicant only spoke to her mother in Hunan, and that she had ceased speaking with her son (the son, who lives with his father, refused to speak to his mother). The witness believed the applicant was ‘timid’ and ‘like a pitiful person’ and that explained why she misled the Tribunal; and the applicant did not dispute this witness evidence

   ·     However, the Tribunal does not accept the witness explanation, and given the Tribunal is satisfied it had a relatively full discussion with the applicant about her family, and given she did not mention any issues with her son, the Tribunal will accept the applicant’s initial evidence as recorded)

   ·     In the first half of 2012, the applicant borrowed money (then approx. RMB [amount] – now approx. AUD $65,560) from an underground bank to open a [business] in Chongming Shanghai in approximately the first half of 2012 (she had previously worked in a [specified] company in Shanghai[4])

   ·     in the second half of 2014, the applicant had to close that business and she became bankrupt

   ·     shortly after that the applicant defaulted on her loan, the underground bank sent people to harass and threaten her (she was told her ‘safety could not be guaranteed’)

   ·     at hearing, and when asked what type of collateral the applicant had provided in order to borrow this alleged amount of money, she said that another person (a friend) went ‘guarantor’ in order for the money to be loaned. After arriving in Australia, she said she had lost contact with the guarantor. The Tribunal will accept the applicant lost contact with the aforementioned ‘friend’. However, though asked on more than one occasion, the applicant did not reveal what collateral she had provided in order for the lender (or the guarantor) to provide the loan

   ·     at hearing, the applicant also had said she had not repaid the debt, and did not now repay the debt, and had in fact repaid very little. She said she was focussed on saving her money. The witness later said this was not true and that he had assisted the applicant to repay the debt. Given the regular inconsistent evidence between the witness (the applicant’s partner, and whom she met approximately two years prior to the hearing), and the applicant, and given the Tribunal spent some time clarifying her claims at hearing, and given the evidence related to the applicant’s life experience and not that of the witness, the Tribunal has decided to focus on the evidence which it was able to clarify with the applicant at hearing – and unless otherwise stated, to not accept the evidence of the witness

   ·     the applicant later found employment in China in 2014 (in [Company 1][5]) and tried to repay the loan but the interest rate was very high and so the amount outstanding increased

   ·     the applicant then tried to obtain help from the police and government, but this resulted in more serious threats

   ·     the applicant then tried to relocate within China but she was monitored by associates from the underground bank and was prevented from moving. The applicant also feared that members of the underground bank are everywhere in China, and she would be located wherever she fled

   ·     however, and with the help of friends, the applicant was able to flee China and she travelled to Australia on a Tourist visa

   [4] PDF – p.30.

   [5] PDF – p.34.

3. Regarding money lenders in China, the country information stated:

   3.122 Usury has a long history in China. According to the South China Morning Post, ‘demand for private loans’ is strong today. This is due to small businesses in particular being unable to access enough credit from large banks. In modern times, loan sharks might be known by different names such as ‘private finance companies’ and are more likely to be active in poorer, rural areas.

   3.123 Some protection is available to debtors. ‘Usurious loans’ are prohibited under China’s Civil Code, which came into force 1 January 2021, but the interest rate considered usurious is not defined in that legislation. The courts have capped interest rates at four times the official rate. A number of highly publicised violent crimes related to debt collection were discussed in the media in 2017 with police making arrests and people being convicted for serious crimes such as assault and sexual assault related to debt collection. DFAT is also aware of a 2018-20 crackdown by authorities on usury, which was highly public and which saw the prosecution of a large number of people.

   3.124 Loan shark operations may be large-scale, but police operations are also large scale. In 2019, 253 suspects were arrested in a campaign against loan sharks in Lanzhou. The gang had over 1,300 mobile phone applications and websites to facilitate usurious moneylending. The Chinese Government claims that 41,000 suspects have been detained in 2021, but it is not clear if this is only during the recent crackdown, or if it includes previous arrests.

   3.125 DFAT assesses that loan sharks are active in China, but assesses that state protection is available. DFAT considers that victims of loan sharks have a plausible fear of violence but that overall the risk is low.[6]

   [6] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 22 December 2021.

4. The gist of the country information was discussed at hearing. However, as noted above, the applicant said she contacted her parents in Hunan once or twice per week, and she contacted her son in Shanghai also around once or twice per week. She said that when speaking with them, they discuss their well being and what each are doing. When specifically asked if they speak about anything more significant or important, the applicant said no. As noted above, the applicant had also claimed not to have repaid much if any of the debt.

5. The independent evidence before the Tribunal also included that police may not necessarily intervene in loan disputes where threats may arise, but no physical injury results.[7] However, given the applicant’s family in China had not even been questioned about the debt, either by the guarantor or the associates of the underground bank, in the four years since she had departed China, the Tribunal put to her it may consider whether the loan had been repaid in full.[8] The applicant said that in the three years she remained in China after defaulting on the loan, she did not have stable work. The Tribunal then noted that in her PV form, she said she had been employed as [an Occupation 2] at a named business in Shanghai, between 1 September 2014 and 1 September 2017 (the Tribunal also notes the applicant had been employed in various businesses in Australia).

   [7] FOR INSTANCE, SEE ‘CHINA MURDER CASE SHINES SPOTLIGHT ON LOAN SHARK SHARKS’, FINANCIAL TIMES, 30 MARCH 2017, CHINA MURDER CASE SHINES SPOTLIGHT ON LOAN SHARKS | FINANCIAL TIMES (FT.COM), ACCESSED 20 JANUARY 2022.

   [8] FOR EVIDENCE OF THE IMPACT ON FAMILY MEMBERS OF VICTIMS OF LOAN SHARKS, SEE ‘CHINA RESCINDS LIFE SENTENCE OF MAN WHO KILLED LOAN SHARK FOR TAUNTING HIS MOTHER AFTER PUBLIC OUTCRY’, INDEPENDENT, 23 JULY 2017, CHINA RESCINDS LIFE SENTENCE OF MAN WHO KILLED LOAN SHARK FOR TAUNTING HIS MOTHER AFTER PUBLIC OUTCRY | THE INDEPENDENT | THE INDEPENDENT, ACESSED 20 JANUARY 2022.

6. The applicant then said her family in China would not be harmed, otherwise the ‘regulations’ would allow her to ‘sue’ the underground bank. The Tribunal confirmed she had borrowed money from an underground and not a legitimate bank, and the applicant said this was correct. However, the fact that neither her family in Shanghai, nor her family in Hunan, had even been questioned about the non-payment of the loan or the applicant’s whereabouts, either by the associates of the underground bank or even the guarantor, is one reason that satisfied the Tribunal that even if the applicant had borrowed money from a lender in China, that loan had now been repaid.

7. Next, the applicant had made claims to have been threatened in China (by associates of the underground bank), and her witness said she had been scared by these ‘mafia like’ lending organisations. However, the country information before the Tribunal included that the police in China continue to crack down on loan sharks. A 2018 to 2020 campaign targeted ‘black society gangs’, extortion, prostitution and gambling, among others[9] and saw 54,000 people prosecuted during that time.[10] The campaign found that loan sharks used nude loans (where a person is forced to provide naked pictures of themselves as collateral),[11] unlawful detention and violence[12] and that some women were reportedly forced into prostitution to pay back debts to loan sharks.[13] The campaign against usury was apparently effective with thousands arrested for the crime.[14] In March 2021, a gang of loan sharks was found to have caused the deaths of 89 people after they hired debt collection companies to harass and intimate borrowers who had no feasible avenue to pay off their obligations.[15]

   [9] ‘Xi Jinping’s War on “Black and Evil”’, Ben Hillman, in ‘China Dreams’, Jane Golley et al., Australian Centre on China in the World (Australian National University), May 2020, p. 37ff, 20200513111851.

   [10] 'Dark side of China’s organised crime crackdown revealed in private lender case', South China Morning Post, 23 March 2021, 20210622133714.

   [11] ‘Xi Jinping’s War on “Black and Evil”’, Ben Hillman, in ‘China Dreams’, Jane Golley et al., Australian Centre on China in the World (Australian National University), May 2020, p. 37ff, 20200513111851; 'China's millennials embrace loans and paying in instalments as microloan industry booms', ABC News, 28 November 2018, 20200520135516; 'How China-based money lending apps are devastating gullible Indian borrowers', India Today, 6 January 2021, 20210223110708.

   [12] ‘Xi Jinping’s War on “Black and Evil”’, Ben Hillman, in ‘China Dreams’, Jane Golley et al., Australian Centre on China in the World (Australian National University), May 2020, p. 37ff, 20200513111851; 'A multi-billion dollar criminal lending scheme resulted in 89 deaths in China: CCTV', South China Morning Post, 29 March 2021, 20210622130538.

   [13] 'China's millennials embrace loans and paying in instalments as microloan industry booms', ABC News, 28 November 2018, 20200520135516.

   [14] ‘Xi Jinping’s War on “Black and Evil”’, Ben Hillman, in ‘China Dreams’, Jane Golley et al., Australian Centre on China in the World (Australian National University), May 2020, p. 37ff, 20200513111851; '$527 Million Seized, 16,200 Arrested in Loan Shark Crackdown', Caixin, 26 February 2019, 20190227090729.

   [15] 'A multi-billion dollar criminal lending scheme resulted in 89 deaths in China: CCTV', South China Morning Post, 29 March 2021, 20210622130538.

1. At hearing, the applicant appeared to concede that laws or circumstances (regarding usury) had changed in China, but she and her witness believed that for ‘lower class’ persons, the living conditions in China were not good. It was said the applicant and the witness had worked hard in Australia, and they ‘contributed to society’ in Australia. However, the Tribunal must still consider whether an applicant has a real chance of suffering serious or significant harm in their receiving country; and the fact they may enjoy a better standard of living in Australia, without more, does not give rise to protection obligations.

2. In her PV form, the ethnic Han applicant said that between 1 September 1997 and 1 September 2017, she resided in [a named town in] Chongming, Shanghai. When then asked why she had not sought to safely and reasonably relocate within China, if she feared harm from the underground bank for the reasons she claimed, the applicant said she tried to relocate within China but she was monitored by associates from the underground bank and was prevented from moving. She also feared that members of the underground bank are everywhere in China, and she would be located wherever she fled. Regarding relocation, the country information stated:

   5.24 Internal migration has been a key feature of Chinese economic and social life for decades. Migration to cities in the wealthy eastern provinces is particularly popular. A third of the population live in a place other than where their residence is registered with a local government. Urbanisation has been a key feature of China’s rapid economic development. There are no legal impediments to relocation, but the hukou system may limit freedom of movement in practice. As Mandarin is spoken throughout the country, DFAT assesses that Han Chinese have little difficulty in resettling in different parts of the country … [emphasis added][16]

   [16] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 22 December 2021.

3. The Tribunal understands the applicant was able to depart China lawfully, on a passport in her own name (with the assistance of friends); and coupled with the Tribunal being satisfied the applicant is not a reliable witness, the Tribunal was not satisfied the applicant was monitored to the extent she claimed. Further, the country information in the sources cited herein, did not support the applicant’s claim that members of the underground bank (in Shanghai) are everywhere in China; or that there is a real chance the applicant could be traced by them should she relocate. The Tribunal has not considered whether the applicant could safely and reasonably relocate, however, I am not satisfied she made any material effort to relocate (including to Hunan), and the Tribunal believes this supports a finding the applicant’s fear of ongoing harm in Shanghai was at least exaggerated, if not fabricated.

4. In the circumstances, the Tribunal will accept the applicant borrowed some money in Shanghai (though I do not accept it was the amount she claimed), and that the money borrowed had now been repaid in full. The Tribunal will also accept that even if the applicant was verbally threatened in Shanghai, there was no real chance of that, or any other related harm, continuing. The Tribunal does not accept the applicant was subject to any other material harm in China.

5. At hearing the Tribunal said it may consider, given the country information considered herein (including that relating to access to State protection), given the lack of questioning of her family in China since her departure, given she understood there was legal redress if a lender acted improperly in China, and given the recent crackdown in China, that the applicant would not have a real chance of suffering serious or significant harm on return to Shanghai, China. The applicant did not agree, and said she did not wish to return to China.

6. However, based on the cumulative reasons set out above, the Tribunal was not satisfied the applicant has a real chance of suffering serious or significant harm should she return to her home area in Shanghai.

   Failed asylum seeker:

7. The country information stated:

   5.28 DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear. See the relevant section of the report for information on treatment of specific Groups of Interest.

   5.29 Those wanted for outstanding warrants could still be charged on return to China…[17]

   [17] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 22 December 2021.

8. When discussed at hearing, the applicant said she had worked hard in Australia, and she did not wish to return to China. However, given the country information and accepted evidence (ie there was no evidence the applicant was subject to a warrant either in Australia or China), the Tribunal is not satisfied the ethnic Han applicant, would have a real chance of suffering serious or significant harm in China, should she return as a failed asylum seeker.

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

10. 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). For the same reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

11. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Mr S Norman
    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.

    …