1836192 (Refugee)

[2022] AATA 2980

1836192 (Refugee) [2022] AATA 2980 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1836192

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Wendy Banfield

DATE:7 June 2022

PLACE OF DECISION:  Canberra

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

Statement made on 07 June 2022 at 5:51pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark – education loan debt and guarantor of loan by partner – partial repayment – inconsistent claims and evidence – first application invalid and period as unlawful non-citizen before making current application – applicant’s responsibility to specify particulars and provide sufficient evidence – country information – legal protections and financial services – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v v MIMA (2004) 217 CLR 387

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 11 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.

3. The applicant appeared before the Tribunal on 28 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. As the applicant resides in a regional area, the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

   Criteria for a protection visa

   Refugee criteria

4. 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.

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.

   Complementary protection criteria

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.

9. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

   Mandatory considerations

10. 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.

    Applicant's Identity and Country of Reference

11. The applicant stated in her application for a protection visa that she was born on [Date] in Malaysia. The applicant provided a copy of her Malaysian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.

12. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.

13. Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that she is a citizen of Malaysia and as such her protection claim will be assessed against Malaysia as the country of reference and 'receiving country' respectively.

    Migration History

14. The applicant arrived in Australia on 18 February 2017 holding an Electronic Travel Authority (ETA) and has not departed since.

    Claims for protection and supporting documentation

15. The applicant submitted her claims for protection when she made an application to the Department on 11 May 2018. Her claims were summarised in the Department’s decision record that was submitted in evidence:

    ·     She has accumulated a debt at the National Higher education Fund (PTPTN) with arrears of RM 20,649 (Malaysian Ringgits)

    ·     She became guarantor for her partner’s loan RM 8,000 from a loan shark and she need to repay RM 17,880.

    ·     She will be blacklisted, and she has got a debt with the PTPTN Government money and cannot borrow anymore.

    ·     The loan shark will be looking for her because her partner did not pay his debt.

    Evidence at the hearing

16. The applicant was asked if anyone assisted her with the application for protection. She said she did it herself and was satisfied everything is true and correct. The applicant confirmed she is a citizen of Malaysia and does not have citizenship anywhere else. She had visited [Country] before she came to Australia. The applicant claimed she does not have family in Australia; in Malaysia she had parents and a sister and brother. The applicant is single with no children. Before coming to Australia, the applicant had been working in a shop. She said she had completed a Diploma of [Subject] for three years after secondary school.

17. The applicant stated she came to Australia in February 2017 because she had a debt in Malaysia. She said she travelled as a visitor because it was the only way she could come here. The applicant explained that in her home country she has an education loan of RM28,000 and a debt to a loan shark that was originally RM8,000 but became RM18,000. She said if she is unable to pay the loan “they” will keep calling and come to her house. The applicant said she had taken the loan to pay back her education debt and to build her life in Malaysia. According to the applicant, when she was working in a shop, the salary was not sufficient. She said that although she was repaying the loan shark debt, the amount was not enough. The applicant claimed she was also unable to pay the full amount of her education loan debt.

18. The Tribunal put to the applicant that there are services in Malaysia that can assist people with debts, including to loan sharks, and they can work out repayment plans on behalf of debtors. She was asked if she had sought any help with her loans. The applicant asked if the Tribunal was referring to a bank, but it was explained that there are government agencies that can assist, especially when dealing with loan sharks. The applicant said the problem was that her salary had been only RM700 or 800 per month and they will decline. She said it was easier to borrow from a loan shark. The Tribunal noted that would be more difficult to repay and the applicant agreed. The Tribunal referred to arrangements that can be made to repay debts in instalments. The applicant said the education loan was through PTPTN and that every month she needed to repay RM200. She advised she had to pay rent and bills, as well as help support her parents because they are not working. The applicant said she studied [Subject] and had wanted to go on to degree level but was unable to afford to continue. The applicant said her brother is helping the family financially, but her sister is younger and cannot do so. The applicant confirmed she lived in Sarawak in Malaysia but is living in Sydney now. She said she works in a [Workplace] but previously she lived and worked in [City].

19. Regarding repaying the loan shark, the applicant said she has not contacted them and only calls her sister. She said she does not call her parents because she is afraid to. She reiterated she was unable to pay her loan back because she was living alone and had to pay rent and expenses. When asked if she could reside with her parents until she repaid her debts, the applicant said she could not because she was working far from her parents’ house. The applicant explained it was hard to find a job in Malaysia which is why she travelled. When asked if she had been in a relationship in Malaysia with anyone who could have helped her, she said no, she had been living alone. The Tribunal put to the applicant that in her application for a protection visa, she had claimed to have been a guarantor for her partner’s loan. She replied: “it was not my partner, no”. The applicant was asked why her application had referred to a partner and she was reminded that she had declared her evidence in the application form to be true and correct. The applicant then said: “we had split it in two, but he refused to pay”. When asked again if she did have a partner in that case, the applicant said it was not a partner. She was asked if it was a boyfriend and she replied, “something like that”. The Tribunal asked who the person was that she originally claimed to have guaranteed a loan for and she said it was someone she knew. According to the applicant, the person had a daughter he needed to support.

20. The applicant said she had been paying the loan shark since she came to Australia. However, regarding the education loan, the applicant claimed she had some trouble in Australia and was paying a debt to an insurance company due to an accident. The applicant clarified that she was paying the loan shark debt in instalments. The Tribunal asked the applicant about her earlier claim that she was no longer in contact with the loan shark. She said she is still able to send them payments. In addition, she still receives emails about her education loan. She said she owes RM10,000 on her education loan. The applicant was unsure what she owes the loan shark as she believed it had gone up. The applicant claimed to be scared because “they” are looking for her family.

21. The applicant was asked what she feared about returning to Malaysia. She claimed that the loan sharks are dangerous, and they may come to the house and blackmail her. She then said she does not know what they would do. The applicant claimed that when she was unable to pay previously, they came to her house and threatened “if you want your life to be good, please pay”. The applicant was asked if she had made any reports to police about threats and she claimed they would say it was her fault for borrowing from a loan shark. She said they [the loan shark] would still disturb her and come for her. The Tribunal put to the applicant that according to country information, Malaysian police do respond to threats and intimidation from loan sharks. The applicant agreed that is the case in principle but claimed the police will take a report but not do anything. The applicant said she still feels unsafe in Malaysia due to her debts and even when she was not working in Australia she just stayed here with her friends.

22. The Tribunal asked the applicant why anyone would be looking for her when she has been in Australia since 2017. She said they would still want their money back because that is how they work. The Tribunal asked the applicant if she is planning to pay the money. She said she wants to pay her education loan but does not want to return to Malaysia. She was asked if she could live in a different area of the country, but the applicant said: “they are everywhere”. The applicant agreed that it was a possibility no one would know she had returned if she went back, but she was not sure, and said that is why she does not want to return. The applicant reiterated she wants to pay her education loan but now she has a debt to an insurance company in Australia for $8,200 as well, which she is paying by instalments at $100 per week.

23. The Tribunal put to the applicant that she had first applied for a Protection visa on 16 May 2017, but the application was invalid, and she had been unlawful until she reapplied on 11 May 2018. The applicant explained she had been told she could reapply and sought assistance from a lawyer but had been asked to pay fees.

    Country Information - Malaysia

    Royal Malaysia Police (RMP)

    The RMP is based on the British constabulary model and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. SUHAKAM conducts some human rights training and workshops for police, state Islamic religious authorities and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.

    According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.[1]

    Loan Sharks

    Malaysian police respond to threats and harassment from unlicensed moneylenders and some non-government associations offer assistance to loan shark clients. Loans from unlicensed moneylenders, typically referred to as ‘loan sharks’ or an ‘ah long’ in Malay, are common in Malaysia[2]. Unlicensed money lending activities, including harassment or intimidation of borrowers, are offences under the Moneylenders Act (1951).[3] Individuals prosecuted under the Moneylenders Act face a maximum 1 million ringgit fine or five years imprisonment. Police respond to complaints of illegal money lending activities, including harassment and intimidation, and conduct operations targeting illegal moneylending, resulting in the prosecution of persons under the Moneylenders Act and the Penal Code.[4] In December 2017, Malaysia’s central bank cautioned the public about illegal money lending activities conducted by companies using fake licences purportedly issued by the central bank, advising the public to report such instances to the police for investigation.[5] A nongovernmental organisation, the Malaysian Muslim Consumers Association (PPIM), offers support for those encountering problems with loan sharks, including a call centre, website, and assistance settling debts.[6] The Malaysian Chinese Association’s (MCA) Public Services and Complaints Department provides a similar service to renegotiate the terms of loans with loan sharks on behalf of borrowers.

    [1] DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, sections 5.5, 5.6, p.58

    [2] DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, sections 3.109-3.118, pp.40-42.

    [3] Moneylenders Act 1951 (Malaysia)’, amended 15 April 2011, Attorney General’s Chambers of Malaysia, sections 5(2), 29AA, 29B(1).

    [4] ‘Penang police nab 20 suspected loan sharks’, Malay Mail, 14 July 2021, ‘Two illegal moneylenders nabbed in 'Ops Vulture'’, The Star Online (Malaysia), 12 March 2021, ‘Police nab five ‘Ah Long’ for keeping victim captive in Kedah’, Bernama, 9 November 2020; ‘Johor cops arrest seven for loan shark activities’, The Star, 3 November 2020; ‘’Datuk’ arrested in Kuala Lumpur for posing as senior police officer’, Bernama, 18 October 2020; ‘Johor cops open 398 investigation papers on loan sharks in eight months’, The Star Online (Malaysia), 1 September 2020; ‘Cops detain 12 men over ‘Ah Long’ syndicate in Johor’, Bernama, 1 September 2020; ‘18 nabbed over Ah Long activities in Selangor’, The Star (Malaysia), 10 June 2020.

    [5] ‘BNM warns of illegal money lenders’, Bernama, 6 December 2017.

    [6] ‘More expected to borrow from loan sharks’, The Star, 23 June 2020; ‘Loan sharks sharpen their bite’, The Star, 20 January 2018; ‘PPIM urges govt to put an end to ‘ah long’ posters’, Bernama, 6 September 2018’ ‘For Malaysia’s sake, consumers group seeks to save civil servants trapped in debt’, Malay Mail, 3 August 2017; ‘More than 10,000 people sought PPIM's help over Ah Long cases’, Bernama, 18 October

    2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

1. The Tribunal considered the applicant’s claims made to the Department at the time of application and to the Tribunal at the hearing. The Tribunal had concerns about the applicant’s claims of having acted as guarantor for a loan, as stated in her application for a protection visa. At the Tribunal hearing the applicant initially said the education loan and debt to a loan shark were hers, and no mention was made of a partner or a role as guarantor. When asked to comment on her original claims, the applicant at first stated she had been single at the time and there was no partner. When asked whether the reference may have been to a boyfriend, the applicant’s response was vague and non-committal. She referred to another person who she said did not pay their part. Despite these concerns, the Tribunal is prepared to accept the applicant did have debts in Malaysia that she found difficult to repay.

2. The applicant did not make any specific claims of fearing persecution due to race, religion, ethnicity, membership of a particular social group or political opinion but the Tribunal nevertheless considered her submissions that she experienced difficult financial circumstances as a debtor. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case[7] and also in Applicant S.[8] In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

   … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

   [7] Applicant A v MIEA (1997) 190 CLR 225.

   [8] Applicant S v MIMA (2004) 217 CLR 387.

3. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group. The Tribunal finds that being a person who owes money such as an education loan does not necessarily distinguish the applicant from Malaysian society at large. This is because large numbers of people, across all sections of society in Malaysia have debts. It is generally characterised as “household debt” and there is no distinction from any other member of society.[9] In the applicant’s circumstances however, the Tribunal assessed the claims based on her being a person who owes a debt to an illegal money lender in Malaysia.

   [9] >

   The Tribunal notes there are government support services available in Malaysia to those who are in debt and have difficulty making repayments, including to illegal money lenders.[10] The applicant indicated she had not sought the assistance of any such services. Malaysia also has an effective police force that is willing and able to act against illegal loan shark activities, despite a level of perceived and actual corruption. Media reports indicate police do pursue and prosecute unlawful lenders. There is nothing to suggest the applicant would be unable to seek assistance from the authorities and available debt services. The Tribunal understands the applicant has a preference to remain in Australia, but this appears to be because wages are higher, and she has been able to support herself as well as meet ongoing financial obligations. The applicant explained that her salary in Malaysia was low and not sufficient to pay her debts as well as meet her daily expenses. The applicant outlined concerns about possible harassment by a loan shark, however, the apprehension she described did not amount to a fear of persecution and the Tribunal is not satisfied there is a real risk the applicant would be persecuted in Malaysia. In addition, the applicant claimed that while in Australia she had continued to make payments to the loan shark and while she stated she did not know the current balance of the loan, her ongoing payment would reduce any risk of threats or harassment if she returned to Malaysia.

   [10] Malaysian Government Credit Management Programme: >

   Based on the applicant’s claims before the Tribunal, there is no evidence she would suffer serious harm if she returned to her home country, and there are protections in place. The Tribunal did consider whether the applicant would face significant economic hardship that would threaten her capacity to subsist. In this regard the Tribunal notes the applicant has been working in Australia for several years, she is of working age at [Age] years old, and she has been able to able to use her personal resources to live and work in a foreign country without being a native English speaker. While in Australia the applicant would have acquired skills that could be utilised in her home country, including a level of English language proficiency as demonstrated at the Tribunal hearing where she was able to participate without the assistance of an interpreter. In her application for a protection visa, the applicant claimed she would be financially blacklisted and unable to borrow in future. The Tribunal accepts that may be the case, but this would be a possibility for anyone with unpaid loans who has acquired a poor credit history. Such an outcome would not amount to a real risk of significant harm to the applicant.

4. For these reasons, the Tribunal is not satisfied that there is a real chance that on return to Malaysia now or in the reasonably foreseeable future, the applicant would face harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Complementary protection criteria

5. A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.

6. The applicant claimed to fear harm due to outstanding debts, in particular debts to a loan shark. She described her concerns that if she was in Malaysia, the loan shark would keep calling her and would come to her house. In her evidence at the hearing, the applicant also claimed the loan shark may try to blackmail her, but she did not indicate how or why she thought anyone would do this. The applicant alleged that in the past, the loan shark had threatened that she needed to pay if she wanted a good life. The applicant stated she had not contacted the police about she believes they would say it was her fault for borrowing from a loan shark. Based on country information about the problem with illegal money lenders and their practices in Malaysia, the Tribunal accepts the applicant may face a level of threat and intimidation. However, there are protections available in her home country and services she could access to assist with outstanding debts. For these reasons, the Tribunal ins not satisfied there is a real risk the applicant will suffer significant harm if she returns to her home country.

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

8. 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

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

   Wendy Banfield
   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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