1820669 (Refugee)

[2020] AATA 3188

1820669 (Refugee) [2020] AATA 3188 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820669

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Deputy President Jan Redfern

DATE:30 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 June 2020 at 12:30 PM

CATCHWORDS

REFUGEE – Protection (Class XA) (Subclass 866) visa – Malaysia – loan sharks - application for protection on basis the basis of the refugee and complementary protection criterion – applicant claims to fear harm from loan sharks – consideration of refugee criterion in s 36(2)(a) of the Migration Act 1958 - applicants claims found not to have a refugee nexus – consideration of complementary protection criteria in s 36(2)(aa) of the Migration Act 1958 – no substantial grounds for believing that as a necessary and foreseeable consequence of removal to Malaysia there is a real risk the applicant will suffer significant harm from the loan sharks – applicant found to not be a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s.5H, 5J, 65, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 36(2A), 36(2B)

Migration Regulations 1994 (Cth), Schedule 2

CASES

Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147

SECONDARY MATERIALS

Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guidelines’

Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Refugee Law Guidelines’
Department of Foreign Affairs and Trade Country Information Report on Malaysia, dated 13 December 2019.

Minister for Immigration and Border Protection (Cth), Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant is a [x]-year-old man who was born in [town], Sabah, which is a state of Malaysia located on the northern portion of Borneo. He claims to be a citizen of Malaysia. This is not in dispute. The applicant claims that he fears returning to Malaysia because of threats of harm from loan sharks.

3. The applicant sought review of the delegate’s decision and applied to this Tribunal on 16 July 2018 for review of that decision. The applicant was invited to attend a hearing scheduled before me on 24 June 2020. He was assisted by an interpreter in the Malay language and was self-represented.

4. For the reasons that follow, I am not satisfied that the applicant meets the criteria for protection and I affirm the decision under review.

   RELEVANT LAW

5. 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 ss.36(2)(a), (aa), (b), or (c) of the Act. 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.

6. Subsection 36(2)(a) of the Act 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.

7. 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) of the Act. 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) of the Act.

8. Under s.5J(1) of the Act, 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 of the Act.

9. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, 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) of the Act.

10. Extracts of the relevant provisions of the Act are attachment to this decision.

11. Relevant to the circumstances of this case, because it was raised by the delegate as a reason to reject the applicant’s claim, is s.36(2B)(b) which provides:

    (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:

    ………………….

    (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

12. The nature and effect of s.36(2B)(b) of the Act was considered by the Full Federal Court in MIAC v MZYYL [2012] FCAFC 147. The Full Federal Court recognised that the provision was “obverse” to s 36(2)(aa) of the Act, which requires an assessment of the ‘real risk’ of harm to an applicant.[1] This assessment necessarily involves the consideration of a range of matters, including the availability of protection from the authorities. As such, there is some overlap between these provisions and s.36(2B)(b) of the Act is not to be read as a ‘carve out’. The Full Federal Court expressly rejected the Minister’s submission that s.36(2B)(b) of the Act requires only that the receiving country have an effective legal system for detection, prosecution and punishment, or a system that meets ‘international standards’ and held that s.36(2B)(b) of the Act requires the Minister to be satisfied that the protection available would remove the real risk of significant harm to the non-citizen to “something less than a real one”.[2]

    [1] MIAC v MZYYL [2012] FCAFC 147 [33].

    [2] Ibid, refer to [36]-[40].

    Mandatory considerations

13. In accordance with Ministerial Direction No.84[3] made under s.499 of the Act, the Tribunal is required to take account policy guidelines prepared by the Department of Immigration -Procedural Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines and Procedural Advice Manual 3 ‘Refugee and humanitarian - Refugee Law Guidelines- and any country information assessment 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.

    [3]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.

14. The most recent report from DFAT is the Country Information Report for Malaysia dated 13 December 2019. I have considered this report, together with other relevant country information referenced in this decision.

15. Generally, the guidelines prepared by the Department contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances of this case.

    BACKGROUND

16. The applicant arrived in Australia on 31 January 2018 on a visitor visa obtained through an Electronic Travel Authority. He made an application for a protection visa on 11 April 2018. The application was completed electronically.

17. In his application, the applicant stated that he was claiming protection because feared harm from loan sharks who had threatened to kill or harm him and he did not believe he could relocate or that he would be protected by authorities. The applicant claimed that after being rejected by several conventional banks, he applied for an illegal loan from a loan shark for his family business. The loan shark imposed a high interest rate on the loan. He managed to settle the principal sum but failed to repay the interest. The applicant sought assistance from his relatives, but they were afraid of loan sharks and did not assist him. He then tried to apply for a loan from a conventional bank to repay the illegal loan. The applicant claimed that he was harassed and threatened and that he would be killed and harmed by the loan shark if he did not repay the interest. He claimed that his workplace was “ambushed” and as a result he had to close his business. It was stated that the applicant had lodged a police report, but no action was taken. The applicant attempted to relocate his family to his hometown and claimed that he was followed by the loan shark. According to the application, the applicant then quickly bought a flight ticket to Australia to seek protection.

18. The applicant provided no other documents or material to support his claim, other than identity documents.

19. The applicant was not invited to attend an interview with a Departmental officer. On 3 July 2018 the delegate refused the application based on the material before the Department. The delegate did not make any findings about the veracity of the claims made by the applicant that he had been threatened by loan sharks but rejected the claim for protection under the refugee criteria on the grounds that the applicant’s claimed fear of harm in Malaysia did not have the relevant refugee nexus. The delegate considered whether Australia’s obligations were engaged under the complementary protection criterion but rejected the claim because he was not satisfied there was a real risk of the applicant suffering significant harm. In summary, the delegate found that, while there may be instances of corruption in the police force, the Malaysian authorities were willing and reasonably effective in combating illegal moneylending. According to the delegate, this would provide the applicant with an adequate level of protection such that there would not be a real risk that he would suffer significant harm.

    OUTLINE OF EVIDENCE

20. Prior to the scheduled hearing the applicant was requested to provide any further evidence or information in support of his application, including any document relating to the loan or complaints made to authorities. No further documents were provided.

21. The applicant gave evidence that that he worked for a Chinese company operating in Sabah that manufactured rubber. He worked in with this company from about 2003 until it closed operations in about October [year]. The company was known as [removed] and which the applicant referred to as ‘the Chinese company’. He worked as a ‘middleman’ selling rubber to customers. Business was booming and he had many customers. The work was lucrative. In 2005 he entered into an agreement with the Chinese company to borrow MYR 200,000 over a 15-year period, with monthly repayments of MYR1,500. The total amount borrowed, including interest, was MYR 270,000. The Chinese company took a mortgage over his house as security. According to the applicant, he used the money to invest in building up his business and to build a house. The loan agreement was in writing and signed by him but he no longer could find a copy because the agreement had been made such a long time ago.

22. The applicant said that the Chinese company fell into financial difficulties and the factory was closed during [year]. This resulted in the applicant’s steady flow of income ceasing, which meant he had difficulties in keeping up with the repayments on the loan. He said that he sold three of his cars to pay the Chinese company but found it difficult to find work. The owner of the Chinese company insisted that the applicant continue with the repayments. The applicant said that this was unfair because he did not have a job and he could not keep up with the repayments, even after he had sold his cars. He did not want to sell the house. He said that his house was worth approximately MYR 50,000.

23. In the application for protection, the applicant had stated that he was “harassed and threatened to be killed by the loan sharks when he refused to pay the high interest rate”. When the applicant was questioned about this, he said that the owner of the Chinese company had told him that if he was unable to repay the loan “he would have problems”. The applicant said that he assumed this to mean he would be killed or harmed but could not clearly explain why this was so. The applicant said that he was not aware that the owner had harmed anyone else, but he said that he “knew” that the company had used someone to commit violence against other people who owed money. He could not provide particulars of this other than that other people this may happen.

24. When questioned about the claims set out in his application, the applicant gave evidence that he had not completed the application because he could not speak or read English. He said that a friend prepared the application on his behalf. The friend was a person originally from Malaysia who lived in Queensland. They travelled on the plane to Australia together and the friend, who spoke English, said that he would assist him in preparing the application. According to the applicant he dictated the information to the friend who completed the application on his behalf. The applicant did not read the application. It was not identified in the application that the application has been completed with the assistance of another person and this specific question was answered in the negative.

25. It was apparent during the hearing that there were a number of matters included in the application which were not entirely correct. For instance, in an answer to the question about providing reasons why the applicant had left Malaysia, the application recorded as follows:

    The applicants workplace has been ambushed and as a result, the applicant had to close his family business.

26. When questioned about this, the applicant said that this was not correct and what he meant to state was that the Chinese factory had closed and therefore he had to close his own business in working with the Chinese company.

27. The applicant gave evidence that because there were limited opportunities to find employment in Malaysia and he was being pressured to repay the rest of the loan, he decided that he would come to Australia to try and find work. He said that he had been working continuously since he arrived in Australia in January 2018, although he did not always have full-time work. He had been able to send money to support his wife and family every month of between MYR 8,000 and MYR10,000. This money was used to support his family and to pay off the loan, which he anticipated would be fully repaid by December 2020. The applicant said that he had originally attempted to borrow the money from a bank before 2005 but was unable to do so. He felt confident to borrow the money from the Chinese company because he had worked with them for a period and the business was going well. In his application, he said he had approach other banks to borrow money to repay the loan but, in the hearing, he denied that this was the case.

28. When the applicant was asked why he came to Australia, he said that he came to Australia so he could earn enough money to repay the debt. He said that he did go to the police to report what he considered to be a threat but the police simply told him he should take action to repay the debt. The applicant said that he did not wish to sell his house and that he believed he could repay the debt if he was able to continue working in Australia. He also said he did not understand why the owner of the company threatened him because he had agreed to repay the loan by making repayments of MYR1,500 per month, he had always done this and by coming to Australia to find work, he was showing that he would continue to keep the agreement.

29. When asked what he thought would happen if he were to return to Malaysia, he said that he believed he would be harmed if he could not continue to pay the debt. He said he would not feel safe. When the applicant was asked why the house could not be sold to repay the debt, the applicant responded that he did not want to sell the house as he would then be homeless. He believed that the best chance for him to repay the debt was to continue working in Australia. The applicant was asked whether he would return to Malaysia after he had repaid the debt in December 2020 and he responded to the effect that he did not know. He said that if he was still healthy, he would like to keep working in Australia so that he could build some capital to be able to start up a new business in Malaysia.

    CONSIDERATION

30. The essence of the applicant’s claim is that he fears harm from the Chinese company for which he worked if he returns to Malaysia without repaying the money that he owes to them.

31. To meet the refugee criteria in s.36(2)(a) of the Act the Tribunal must be satisfied the applicant is a “refugee”, as defined by s.5H of the Act. Section 5H(1)(a) of the Act relevantly provides that a person is a refugee if, among other things, he or she has a “well-founded fear of persecution”. Section 5J (1)(a) of the Act provides that in order to have a “well-founded fear of persecution” the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because he or she is a member of a particular social group. The reason, or reasons, must be the essential and significant reason for the persecution (s.5J(4)(a) of the Act).

32. Having regard to the material before me, I am not satisfied that the harm claimed is for one or more of the reasons set out in s.5J(1) of the Act. Relevantly, there is no claim that the Chinese company is threatening the applicant because of his race, religion, nationality, political opinion or because he is a member of a particular social group. It is clear from the evidence provided by the applicant that any claimed threat or potential for harm relates to concerns by the Chinese company that the applicant will not repay all the money owed. This is the essential and significant reason for the harm that the applicant claims he will suffer. This is not one of the reasons enumerated in s.5J(1) of the Act.

33. As such, I am not satisfied the applicant has a “well-founded fear of persecution” as required for the purposes of the definition of a “refugee” contained in s 5H of the Act. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act because I am not satisfied that he is a refugee.

34. However, this is not the end of the matter and I must also consider whether the applicant is a person in respect of whom Australia has protection obligations under the complementary protection grounds set out in s.36(2)(aa) of the Act.

1. Accordingly, the critical issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm.

2. Significant harm is exhaustively defined in s.36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34).

3. There is country information available to the effect that loan shark activities have been a persistent and deep-rooted feature of Malaysian society for several decades.[4] Unlicensed money lending is illegal under the Moneylenders Act (1951; amended 2003 and 2011) which gives police considerable investigative powers against alleged loan sharks. DFAT reports that police have made a number of recent high-profile arrests and investigations at [3.116] but note as follows:

   3.117 Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption. DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level of protection offered by police. DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and may also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.

   [4] Y. G. Guan, ‘The Long and Short of the "Along" Problem’, May 2003, The Malaysian Bar Association website.

4. I accept that the applicant entered into a loan agreement with the Chinese company in 2005. I found the applicant’s evidence in this regard to be consistent, detailed and credible. While there is no evidence that the Chinese company was unlicensed, given the applicant’s evidence about the nature of its operations, it is possible it may not have been. The precise nature of the loan arrangement is unclear from the applicant’s evidence and a copy of the loan agreement was not available. However, it is not self-evident that the arrangement is onerous or unreasonable or that the applicant was being charged high interest. Notably, the terms of the arrangement, which was said to be documented, were that the Chinese company would lend the applicant MYR 270,000, repayable over 15 years with repayments of MYR1500 per month. This represents a fixed interest rate of approximately 2.3 percent per annum. While this is not a determinative issue, the nature of the loan and the relationship between the applicant and the Chinese company is relevant to the Tribunal’s assessment of whether the owner of the business will threaten or harm the applicant on his return to Malaysia and, in turn, whether there is real risk the applicant will suffer significant harm on his return. In short, this is relevant background and gives context to the applicant’s claims.

5. I accept that the incidence of loan sharks in Malaysia is a problem and that, on occasion, unscrupulous loan sharks or gangs may use violence or threats of violence against debtors to collect debts. However, I am not satisfied, based on the evidence before me, that this is what happened to the applicant before he left Malaysia or that there are substantial grounds for believing that there is a real risk of this happening to him on his return.

6. First, based on the evidence of the applicant, it appears that the loan arrangement between the applicant and the Chinese company was an arrangement with which the applicant complied for some 12 years until he found himself in financial difficulties with the closure of the rubber factory. The applicant says the Chinese company had a mortgage to secure the borrowings. Based on the applicant’s evidence that he had regularly made all monthly payments, and assuming he did not make any additional payments, by late 2017 the amount owing would have been approximately MYR 50,000. The applicant still had three years to make these payments and, as the applicant stated in his evidence, there should be no reason for the business owner to threaten him when he had not defaulted on his loan. It is difficult to understand why the business owner would make threats to physically harm the applicant, who had worked with the Chinese company for over 12 years. Relevantly, if the Chinese company had a mortgage over the applicant’s property, as he asserts, presumably this could have been used to pay any amount owing under the loan at that time. As such, I am not satisfied that the Chinese company can be properly described as a ‘loan shark’ or that there is evidence to support a contention that there is a real risk the business owner would resort to violent loan shark tactics.

7. Secondly, and perhaps of the most significance, is that the applicant’s evidence about what he said happened before he left Malaysia and why he left is not consistent with the reasons stated in his application.

8. In his application, the applicant stated that he had left Malaysia because he had been threatened by the business owner and was concerned, he would be harmed or killed. When questioned about this at the hearing, the applicant’s evidence was to the effect that he raised concerns about repaying the loan with the business owner on the closure of the factory and the business owner said to him that if he did not repay the loan “there would be problems”. The owner did not say that the applicant would be harmed, and the applicant could not point to any evidence of threats made or any harm perpetrated by the owner or anybody on his behalf along these lines. When the applicant was pressed about why he had made this statement in his application, the applicant said that he “assumed” this was a threat that he would be harmed. However, he could not point to any evidence other than what he said people told him may happen. He was unable to describe any other incident involving the Chinese company or the owner taking such action. The fact that the owner referred to “problems” could mean many different things. The more likely meaning, given the evidence given by the applicant at the hearing about the circumstances of the case, is that the owner was expecting the applicant to repay the loan or he would need to take some action under the mortgage. As such, I am not satisfied that there was any threat of harm or threat to kill the applicant, as claimed in the application. This is relevant to my assessment of whether there is a real risk of this if the applicant is removed from Australia and returned to Malaysia.

9. Thirdly, the applicant’s evidence at the hearing is that the reason why he came to Australia was to find work to repay the loan. When asked about whether he would return to Malaysia after December 2020 (when it was expected he would be able to repay the loan) the applicant stated that if he was healthy enough, he would like to continue working in Australia to raise sufficient capital to buy a business in Malaysia. This evidence was an honest and truthful response to what appears to be the motivation in the applicant travelling to Australia. However, whether the applicant genuinely feared harm at the time that he came to Australia and whether he was motivated by the desire and need to find work is not the critical question that must be answered. The question is whether there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if he is removed from Australia and returned to Malaysia. If the applicant were to be returned to Malaysia, he would have substantially repaid the loan and, at worst may have to find other work to repay the loan or renegotiate payments over an extended period.

10. According to DFAT, the Malaysian Muslim Consumers Association (PPIM) provides services predominantly for the Malay community and was involved in over 10,000 cases involving loan sharks from 2012 to 2016.[5] The PPIM has a unit dedicated to resolving loan shark debt by renegotiating its terms with the loan shark and, according to its website, the unit claims to have resolved thousands of cases.[6] As such, there is evidence the applicant may be able to renegotiate his payments over an extended period if he was to return to Malaysia before his debts were repaid. On the applicant’s evidence, most of the debt has now been repaid. Accordingly, I am not satisfied there is a real risk the applicant will become homeless. However, even if I was so satisfied, the enforcement of a security by a creditor would not on its face amount to “significant harm” within the meaning of s 36(2A) of the Act.[7]

    [5] DFAT Report at [3.115].

    [6] ahlong.ppim.org.my

    [7] There is an intentional element to s 36(2A) as noted in SZTAL v Minister for Immigration and Border Protection.

11. For the reasons given above, I am not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s.36(2A) of the Act, at the hands of the company owner or any other person if he is removed from Australia and returned to Malaysia. In summary, there is no evidence that there is a real risk the applicant will be killed or that he will be physically or mentally harmed to such an extent that he would be subjected to torture or to cruel or inhuman or degrading treatment or punishment. It is therefore unnecessary for me to consider the question of whether the applicant could obtain protection from authorities in relation to the claimed risk.[8]

    [8] This was the basis of the delegate’s decision under s 36(2B)(b) of the Act

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

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

    DECISION

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

    Jan Redfern PSM
    Deputy President

    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.

    …

    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.

    …