1909223 (Refugee)

[2022] AATA 1070

1909223 (Refugee) [2022] AATA 1070 (21 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1909223

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:L. Symons

DATE:21 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 February 2022 at 5:29pm

CATCHWORDS

REFUGEE – protection visa – Taiwan – fear of harm from debt collectors – guarantor of business loan to father, now in prison – threats to applicant and mother – credibility – inconsistent and contradictory claims and evidence – working in Australia to repay loan – mostly paid at time of application and now fully paid – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), 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 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 5 April 2019 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 Taiwan, first arrived in Australia [in] April 2016 as the holder of a Working Holiday (TZ-417) visa and departed [in] February 2017. [In] July 2017, she returned to Australia as the holder of a second Working Holiday (TZ-417) visa and departed [in] February 2018. She last arrived in Australia [in] March 2018 as the holder of a third Working Holiday (TZ-417) visa.

3. The applicant applied to the Department of Immigration (the Department) for a Protection visa on 11 July 2018. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 14 April 2019, she applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal, via video, on 18 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 AND FINDINGS

12. The applicant’s claims in her application for a Protection visa are summarised as follows:

    ·She was born on [Date] at Taoyuan, Taoyuan City in Taiwan. Her parents divorced when she was a teenager and she and her brother lived with their mother.

    ·She met her father in February 2016 and agreed to his request to act as guarantor for his loan of TWD 2.2 million for him to set up his own business. He assured her that he would take sole responsibility for the loan. Two months later she applied for a Working Holiday visa and travelled to Australia. She thereafter returned to Taiwan on two occasions to visit her mother. 

    ·The second occasion she returned to Taiwan from Australia was in February 2018. On her return, she was visited in her home by three men whom she did not know. These men identified themselves as debt collectors. One of the men had a copy of her identification card and some documents. She did not know how he obtained these documents. One of the men said that, as the guarantor, she was responsible for repaying her father’s loan because her father was six months overdue in repayments and could not be located.

    ·She asked the men to give her 2 days to find her father. She tried to contact her father by telephone and could not do so. She even went to some places he frequented but could not find him. She did not know where he lived. She knew that if she could not find him, she would be responsible for paying the outstanding loan.

    ·The balance of the loan was TWD 2 million. She could not afford to repay the balance. She knew the debt collectors would return after 2 days. She thought that if she did not repay the loan, they would hurt her. To avoid being hurt she returned to Australia to think about a solution.

    ·As she is the guarantor, these men will not hurt her mother or her brother.

    ·The Taiwan authorities cannot protect her every hour of the day. During peak hours they may protect her, but during off-peak hours she is unprotected.

    ·She cannot move to another part of Taiwan because she will be found by the debt collectors.

    ·After returning to Australia she thought about a solution and decided to stay in Australia to avoid being harmed. She feels safe in Australia and wants to live here permanently.

13. The applicant provided the Department with a copy of the biodata page of her Taiwanese passport issued on [2016], a small photograph of herself and a copy of her identification card.

14. The applicant’s application for a Protection visa was refused on 5 April 2019.

15. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 5 April 2019.

16. On 24 January 2022, the Tribunal received an undated and unsigned statement in the Chinese language together with an English translation by a NAATI qualified translator from the applicant. In the statement, she provided additional evidence and made the following new claims:

    ·She was brought up by her mother and grew up thinking she did not have a father. After she grew up, she found out that her father was a drug addict and “took prison as his home”. When she was 22 or 23 years old, she met her father and spent some “happy time” with him. She later realised that he was being nice to her because he wanted her to be a guarantor on his loan. She signed a document without reading it.

    ·A few months later a debt collector went to her house and asked for her. When she asked him how he knew her name, he showed her the document she had signed and told her that her father owed him NT$2 million and asked her how she was going to repay the money. She told him she needed some time to find her father and he agreed to give her 3 days.

    ·She immediately contacted her father and spoke to him. He told her he was sorry for cheating her and had no choice but to deceive her as he was in debt. He told her he was unable to repay the debt, hoped she would forgive him and he would repay her and her mother in his next life. He then hung up the telephone. When she tried to call him back the telephone was turned off. She told her mother what had happened. Her mother told her she did not have that much money and had no family or friends from whom they could borrow the money.

    ·On the third day the debt collector returned to her home and she told him that she did not have enough money. He told her that she would have to pay the money back with her body. They destroyed their furniture. She asked for 3 months to repay the money and they agreed. They poured paint on their house.

    ·She remembered a friend telling her about Working Holiday visas for Australia and being able to earn AUD$50,000.00 a year. She thought she could repay the loan in 2 years and made a decision (to come to Australia). Three months had passed by this stage and the debt collector returned to her house. She told him she had no money but could pay off the loan in instalments over 2 years. He told her to sign a promissory note for NT$3 million plus interest and her mother was not allowed to move to another place or call the Police. They did not leave until she agreed and signed the promissory note. Before they left they grabbed her viciously and threatened her that she would pay the money with her body if she did not repay the money in 2 years and it would not be NT$3 million by then.

    ·Shortly after that she left for Australia on a Working Holiday visa [in] April 2016. When she came to Australia, she realised that she was only able to get low paying jobs because she could not speak English fluently. After 6 months, she found out that she could apply for a second Working Holiday visa so she went to Melbourne and found a job on a farm packing [Produce]. She was paid $16.00 per hour. After 6 months she was able to meet the requirements for a second visa.

    ·She missed her mother and returned to Taiwan [in] February 2017.  She contacted the debt collector and paid him NT$700,000,00 (AUD$35,000.00). He told her that was just interest and she still owed him NT$3 million. She stayed in Taiwan for a year and worked to repay the debt. She was only able to earn a monthly salary of NT$26,000.00 (AUD$1,200.00). Six months later she decided to return to Australia and did so on [in] July 2017. She found a job on a [farm] and earned $26.00 per hour. In 8 months she saved nearly $50,000.00.

    ·Her mother then contacted her and told her that the debt collector wanted AUD$50,000.00 immediately and would do something to her mother if the money was not paid. She returned to Taiwan [in] February 2018. A month later, she contacted the debt collector and paid him NT$1 million (AUD $50,000.00). She begged the debt collector to give her more time to repay the balance of the loan and returned to Australia on 25 March 2018. She kept working and paying back the debt but it was still not enough. She was afraid to return to Taiwan as she could not earn as much money there as she could in Australia and the debt collector did not have the patience to give her more time.

    ·She applied for asylum in July 2018. Less than a year later her visa application was refused and she appealed to the Tribunal. She worked overtime and paid higher taxes than locals in Australia. She now has a permanent job and is entitled to Australian welfare and vacations. Her mother told her that her father is back in prison and told her to live in Australia with her mother for the rest of her life. Her debt is almost paid off. Australia is now her home, she would like the opportunity to be a permanent resident and wants her mother to fall in love with Australia too.

17. On 16 February 2022, the applicant filed with the Tribunal a work reference dated 15 February 2022 from [Ms A] and a work reference dated 16 February 2022 from [Ms B].

    Receiving Country

18. The applicant claims to be a citizen of Taiwan and has provided a copy of the bio data page of her Taiwanese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Taiwan. The Tribunal finds that Taiwan is her receiving country for the purpose of assessing her claims for protection under the refugee criteria and under the complementary protection criteria.

    Third Country Protection

19. The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.

    Assessment of claims

20. The applicant gave evidence to the Tribunal that her application for a Protection visa was prepared by an agent on her instructions which were true and correct. When asked whether she was satisfied that her visa application is accurate and complete, she responded that she knows there are some mistakes and that issue does not make her a refugee. She really wanted to help her family to solve the issue. When asked to identify the mistakes in her visa application, she responded that she knows the issue does not make her a refugee and that is the mistake she is referring to. When asked again whether her visa application was accurate, she answered yes. When asked whether there had been any changes in her circumstances since she filed her visa application, she responded that she has helped her family with that issue. They regularly pay their debts to their creditors and things are getting better. There are not many people going to her mother’s place and asking for money.

21. During the hearing, the Tribunal discussed with the applicant the “issue” she was referring to as well as her claims for protection. Her evidence to the Tribunal was significantly different to her written claims in her application for a Protection visa and her written statement provided to the Tribunal on 24 January 2022. When asked who prepared the written statement filed on 24 January 2022, she responded that she prepared that statement herself and a translator translated it into English for her. The three versions of her evidence are contradictory and cannot all be true.

22. During the hearing, the applicant gave evidence that she has an older brother and older sister who are married and a younger brother who is unmarried. Her parents divorced [in] March 2006. (She was born on [Date] and would therefore have been [Age 1] years old at the time of their divorce). After her parents got divorced, her father would sometimes visit them when he was on parole. He was imprisoned for drug use and drug trafficking. He was sentenced to imprisonment on a number of occasions and his sentences were usually for 2 or 3 years. He is now serving a sentence of 15 years imprisonment.

23. The Tribunal asked the applicant why she came to Australia. She responded that she initially wanted to come here on a working holiday and subsequently because of the debt situation in her family. When asked why she applied for a Protection visa, she responded because there were people going to their home constantly asking for money that her father owed them. The money she earned in Taiwan was not enough to cover the debts. When asked whether she came to Australia to earn more money to pay the debts, she responded that at the beginning this was not her purpose in coming to Australia. She later applied for a Protection visa because this was her purpose in staying in Australia.

24. The Tribunal asked the applicant whether her mother told the people who came to the house that she was divorced from her father and had nothing to do with him. She responded yes and stated that it does not work. In Taiwan, there is a tradition that if your parents owe money you are the one who needs to pay it off. When asked why her elder brother and elder sister are not paying off their father’s debt, she responded that they are married and “belong” to their own families. She and her younger brother are not married so they need to pay the debt.

25. The Tribunal asked the applicant whether the reason why she was paying her father’s debt was because it was the tradition in Taiwan for children to pay their parents’ debts. She responded yes and also because of all her siblings she is the one closest to her father, so she feels that she needs to help him. When asked whether the debt was now paid in full, she answered yes. It was paid this year (2022). She then stated that it was paid around the time she lodged her application with the Tribunal (14 April 2019). When asked whether there was any reason why she could not return to Taiwan, she responded no.

26. The Tribunal gave the applicant a number of opportunities to provide further evidence relevant to her claims. She asked the Tribunal whether she could apply for a Covid visa if her application for a Protection visa is refused. She also asked the Tribunal whether there was any way in which she could get permanent residence in Australia. She stated that she likes it in Australia and would like to live here. The Tribunal suggested she consult a registered migration agent or an immigration lawyer to obtain immigration advice.

27. The applicant stated that she knew at the time she applied for a Protection visa that she did not meet the criteria for a refugee. Because she applied for a Protection visa, she was able to stay here for a long time and pay her family’s debt. She really enjoys it here ad would be sad if she had to return to Taiwan.

28. The applicant gave evidence that everything she told the Department and the Tribunal was the truth. The Tribunal raised as issues with her the significant inconsistencies between her written evidence and claims to the Department, her written evidence and new claims to the Tribunal and her oral evidence to the Tribunal and it’s concerns in relation to her credibility and the veracity of her claims. She responded that when she wrote those statements she was under pressure. She was clear about what she was writing. Today she is before the Tribunal because she has paid off all her debts. She feels relieved because she got rid of her debt. She told the truth in relation to her father being in prison and can get evidence of that.

29. The applicant stated that, the reason for the difference between her written statement and her oral evidence to the Tribunal, is because she is in a different mood now. Previously she was under a lot of pressure and hated Taiwan. Today she is in a different mood, has paid the debt and does not mind returning to Taiwan. There are three versions of her evidence because the evidence was given at different times in her life. She was facing different things in her life and everything she said was the truth. Applying for a Protection visa was her only option.

1. The Tribunal raised as issues with the applicant her delay in applying for a Protection visa since she first arrived in Australia in 2016 and that this delay was not consistent with her written claims. She responded that when she first arrived in Australia, she had a legal visa that allowed her to stay here, work and earn money. When she returned to Taiwan, she asked her mother if those people went to the house and made a mess. She realised that 2 years was not enough time to make more money and she needed more time. She applied for a Protection visa because she needed more time to make money in Australia. During that period of time she found Australia to be a place that has a lifestyle that she really enjoys.

2. The Tribunal has had regard to the two work references provided by the applicant.  

   Other considerations

3. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Findings

4. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that she is not a reliable witness. The Tribunal finds that she has fabricated her material claims in her visa application and her written statement lodged with the Tribunal for the purpose of obtaining a Protection visa.

5. The Tribunal accepts that the applicant was born on [Date] at Taoyuan in Taiwan. The Tribunal accepts that she has an elder brother, elder sister and a younger brother and that her elder brother and sister are married. The Tribunal accepts that her parents divorced [in] March 2006. The Tribunal accepts that her father was a drug user and trafficker and served time in prison. The Tribunal accepts that after her parents divorced her father would sometimes visit them when he was on parole. The Tribunal accepts that her father is currently serving a sentence of 15 years imprisonment. 

6. The Tribunal does not accept that in February 2016, when the applicant was [Age 2] years old, she signed documents, at the request of her father, to be a guarantor on a loan taken out by her father. It follows that the Tribunal does not accept any of her claims that flow from that. Alternatively, the Tribunal does not accept that she grew up thinking she did not have a father, did not recognize him when contacted by him at the age of 23 or 24 years old, signed a document at his request without reading it or knowing what it was and was then contacted by a debt collector a few months later. It follows that the Tribunal does not accept any of her claims that flow from that.   

7. Alternatively, the Tribunal does not accept that the applicant wanted to extend her stay in Australia to work and earn money to pay off her father’s debts because it is a tradition in Taiwan that children pay off their parents’ debts and she is closer to her father than her siblings and wanted to help him. The Tribunal is of the view that she wanted to extend her stay in Australia to work and earn money here to pay off her debts in relation to applying for visas and travel costs to Australia and to financially assist her mother. The Tribunal accepts that she has paid off her debts in Taiwan.

8. The Tribunal accepts that the applicant has no fears or concerns about returning to Taiwan other than feeling sad about leaving Australia. The Tribunal accepts that she likes living in Australia and would like to live here permanently.

9. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if she returns to Taiwan now or in the reasonably foreseeable future. 

   Does Australia have protection obligations to the applicant under the refugee criterion?

10. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that she will suffer serious harm for any other reason set out in s.5J(1)(a) of the Act if she returns to Taiwan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

11. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

12. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that she will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Taiwan now or in the reasonably foreseeable future. 

13. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

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

15. 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 s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, she does not satisfy the criterion in s.36(2) of the Act.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         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.

…

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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