1910368 (Refugee)

[2021] AATA 2509

1910368 (Refugee) [2021] AATA 2509 (2 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910368

COUNTRY OF REFERENCE:                   China

MEMBER:Michael Hawkins AM

DATE:2 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 02 June 2021 at 3:48pm

CATCHWORDS
REFUGEE – protection visa – China – fear of harm from loan sharks – attacks and threats – vague, undetailed claims – no additional information provided or appearance at hearing – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2, cl 866.211

CASES
BZADA v MIAC [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 9 April 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 10 January 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

   CRITERIA FOR A PROTECTION VISA

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

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background:

10. The applicant claims to be a [Age]-year-old man and a national of China.

11. On 12 December 2017, the applicant applied for and was granted a [Visitor visa]. The applicant first arrived in Australia [in] December 2017 pursuant to the [visa]. The [visa] expired on 21 March 2018.

12. On 10 January 2018, the applicant applied for a Class XA, Subclass 866 (Protection) visa. On 1 February 2018, a Class WA, Subclass 010 (Bridging A) visa was granted to the applicant in connection to his protection visa application.

13. On 9 April 2019, the applicant was notified that the delegate refused to grant the applicant a protection visa on the same date.

14. The applicant applied for merits review of the delegate’s decision on 25 April 2019.

    Claims:

15. The applicant’s claims are summarised in the delegate’s decision and the applicant’s protection visa application.

16. The applicant claims he borrowed money from loan sharks. He claims he could not repay his debt and the loan sharks threatened him.

17. The applicant claims the loan sharks came to his house, broke his furniture and hit him. He claims he filed a police report, but the police did not help him.

    Evidence:

18. The Tribunal has before it a range of material, including, relevantly:

    ·The applicant’s protection visa application, which was lodged on 10 January 2018 (visa application);

    ·The applicant’s identity documents being a copy of his Chinese passport provided to the Department;

    ·The protection visa decision record dated 9 April 2019 (the delegate’s decision record);

    ·The application for review form dated 25 April 2019; and

    ·Country information from the latest DFAT Country Information Report on China, published on 3 October 2019 (DFAT Report on China) and other sources.

    Country of reference / receiving country:

19. The applicant claims to be a citizen of China. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that China is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

20. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Hearing:

21. On 13 May 2021, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 2 June 2021. The letter advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response.

22. On 24 May 2021 and 26 May 2021, the Tribunal contacted the applicant with the assistance of a Mandarin interpreter in relation to the hearing to be held on 2 June 2021. The applicant was successfully conferenced into the telephone calls, however the applicant did not respond to the interpreter's attempts to establish contact with the applicant.

23. On 26 May 2021, the Tribunal sent a hearing reminder to the applicant by email. This email did not fail to be delivered and the Tribunal received no response.

24. On 26 May 2021, the Tribunal express posted a courtesy copy of the hearing invitation and a hearing reminder to the applicant’s postal address as provided by the applicant in his application for review. Australia Post tracking information indicates that this correspondence was returned to the sender as the envelope outlined an incorrect address.

25. On 26 May 2021 and 1 June 2021, the Tribunal sent a SMS hearing reminder to the applicant on his mobile phone. Neither of those SMS failed to be delivered.

26. The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. The applicant failed to provide any reasonable explanation as to why he could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

27. Accordingly, this matter has been determined on the evidence available to the Tribunal.

    Assessment of claims and evidence, and findings:

28. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

29. The Tribunal also notes that the recent decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

30. The Tribunal has considered carefully the applicant’s claims as detailed in his application for a protection visa, both individually and cumulatively. The applicant did not take the opportunity to attend the hearing, and he did not provide additional information in support of his claims, even after having been advised of the delegate’s decision. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The applicant’s claims are vague and lacking in detail.

31. Without the benefit of a hearing, the Tribunal is unable to be satisfied of the claims raised by the applicant in his application.

32. The applicant’s written claims were very brief and very general and relate to a fear of receiving a threat from a loan shark to whom the applicant owed money.

33. Had the applicant attended the hearing, the Tribunal would have asked him for further detail about his claims and it would have been an opportunity for the applicant to address the various gaps in his claims, the decision of the delegate, and generally to provide further information and details.

34. Among the claims on which the Tribunal has insufficient evidence before it are the following:

    ·Details and evidence of the money borrowed;

    ·Details and evidence of the person from whom he borrowed money;

    ·Details and evidence of the terms of the loan;

    ·Details and evidence of the threats made by the loan shark to him;

    ·Details and evidence of the visit to his home by the loan shark;

    ·Details and evidence of any injury inflicted upon him by the loan shark;

    ·Details and evidence of the complaint filed with the police;

    ·Details and evidence of the response to that complaint by the police.

35. The Tribunal considered Country Information that it had obtained as follows:

36. Due to China lacking a uniform credit system, largely unregulated ‘underground banks’, ‘shadow banks’ or ‘shadow lenders’, make up a large portion of the country’s credit market.[1] Shadow lenders can be online ‘micro-lenders’ providing small consumer loans, loan sharks, as well as large schemes, which involve billions of dollars in funds.[2] Such schemes charge high interest rates, from 10 to 15 percent per month, up to as much as 1000 per cent in a year.[3] Shadow lenders reportedly often have links to organised crime gangs, and use a range of tactics to enforce payment, such as intimidation, blackmail, violence and kidnapping.[4]

    [1] ‘China ‘granny gang’ jailed in lending clampdown’, Financial Times, The (FT.com) - United Kingdom, 11 August 2017, CXC90406617230; ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 34, October 2014, CISEC96CF17389

    [2] ‘Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017, CXC90406617642; ‘16 jailed in Shanghai for abusive loan schemes’, China Daily, 30 August 2017, CXC90406617652; ‘Loan Shark Linked to Debtor’s Death Gets 25 Years’, Caixin Media, 11 May 2018, CXBB8A1DA29051

    [3] ‘Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017, CXC90406617642; ‘China ‘granny gang’ jailed in lending clampdown’, Financial Times, The (FT.com) - United Kingdom, 11 August 2017, CXC90406617230.

    [4] ‘China ‘granny gang’ jailed in lending clampdown’, Financial Times, The (FT.com) - United Kingdom, 11 August 2017, CXC90406617230; ‘16 jailed in Shanghai for abusive loan schemes’, China Daily, 30 August 2017, CXC90406617652; ‘China murder case shines spotlight on loan sharks’, Financial Times, The (FT.com) – United Kingdom, 30 March 2017, CXC90406624781.

37. Country information indicates that clients of shadow lenders typically come from poor backgrounds, have limited access to formal credit, have been blacklisted by the formal banking system, or are otherwise considered to have a credit risk. These lenders often provide loans to borrowers without traditional credit checks.[5]

    [5] ‘Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017, CXC90406617642; ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 34, p. 8, 01 October 2014, CISEC96CF17389; ‘China jails more than 1,400 in lending crackdown’, Deutsche Welle, 26 April 2013, CX320051; ‘A Chinese Company That Lends To Borrowers With No Credit Scores’, Forbes.com, 22 March 2017, CXC90406624782, ‘China's loan sharks circle in murky shadow bank waters’, Reuters, 31 January 2014, CX318682.

38. The Tribunal considered Country Information that it had obtained from the DFAT Report on China:

    Loan Sharks

    3.236 There is no comprehensive data available on short-term cash lending (including online lending), as illegitimate lenders (otherwise known as loan sharks) operate illegally. In 2017, the Supreme People’s Court ruled that courts could only accept cases involving debt collectors seeking repayment of their loans if the interest rate charged did not exceed 24 per cent. Media reports claim that, as a result of the ruling, creditors have been forced to find other ways to get their money back if the rate is higher, and reportedly often resort to physical violence and threats against borrowers. Media reports also claim that loan sharks predominantly operate online and are increasingly designing debt traps disguised as legitimate lending. In May 2019, media reported that Shanghai authorities charged 316 criminal gangs, detained more than 1,770 suspects and retrieved more than RMB 1.2 billion in loan shark victim losses during October 2019 in a crackdown on loan shark activity.

    3.237 DFAT considers these claims plausible, but is unable to verify them, and has no further information on the prevalence of loan sharks or alleged maltreatment of borrowers in China.

39. Country information indicates that the underground shadow banking system operates in a grey area of the economy. In some circumstances shadow banking operates in a quasi- legal manner, while in other circumstances shadow banking operations are illegal. The shadow banking is largely unregulated in China.[6] While shadow banking system has operated in the past with the implicit approval of the Chinese authorities,[7] a government crackdown on shadow banking in China has taken place under President Xi Jinping.[8] Numerous recent reports were located of Chinese authorities cracking down on the operations of both large and small shadow banks and lenders, with the police arresting several thousand people in numerous cases, involving funds totalling hundreds of billions of dollars.[9]     

    [6] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 1 October 2014, pp. 1-4, CISEC96CF17389; ‘China mounts massive crackdown on sprawling underground bank network’, South China Morning Post, 17 August 2016, CX6A26A6E8287; ‘China jails more than 1,400 in lending crackdown’, Deutsche Welle, 26 April 2013, CX320051; ‘Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017 CXC90406617642.

    [7] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 34, October 2014, pp. 1-4, CISEC96CF17389.

    [8]  ‘Xi Jinping’s war on shadow banking spills over, rocking China’s wider financial world’, South China Morning Post, 10 February 2018, CXBB8A1DA36449; ‘With Jail Sentences and Corporate Flameouts, China Is Tackling Its Debt’, New York Times, The, 10 May 2018, CXBB8A1DA36450.

    [9] ‘Chinese police probe 20-billion-yuan underground bank trade’, Xinhua (net) also News.cn also China View, 23 November 2017, CXC90406618159; ‘China busts underground bank in Guangzhou: China Daily’, Reuters, 26 September 2017, CXC90406619864; ‘Repatriation and recovery targeted to combat graft’, China Daily, 06 May 2016, CX6A26A6E16755; ‘China mounts massive crackdown on sprawling underground bank network’, South China Morning Post, 17 August 2016, CX6A26A6E8287.

40. Country information indicates that police cracked down on loan sharks in a 2018 to 2020 campaign[10] and that the campaign against usury was apparently effective with thousands arrested for the crime.[11]

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

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

1. In light of all the information before the Tribunal, it appears that borrowing money from shadow lenders or loan sharks is not uncommon. Further, it appears that the Government has made recent reforms for improved legal protection for borrowers and a crack down on shadow lenders which has met with considerable success.

2. As the applicant did not appear and provide evidence as to how he particularly had been impacted by the loan shark, including the extent of harm, if any, suffered by him, or provide evidence as to when and how he sought police protection or why the police did not offer him protection against serious harm, the Tribunal is unable to be satisfied that there is a real chance that on return to China, either now, or in the reasonably foreseeable future, that the applicant would be persecuted or suffer serious or significant harm.

   Cumulative claims

3. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his fear of receiving a threat from a loan shark to whom the applicant owed money or any other reason if he returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to China. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

4. The Tribunal has considered the applicant’s claims under complementary protection.

5. Having regard to the Tribunal’s findings of fact above, the Tribunal does not accept that the applicant left China because he feared for his life.

6. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.

7. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.

   Conclusion: Refugee Criterion

8. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

   Conclusion: Complementary Protection

9. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that he will suffer significant harm.

   Overall Conclusion

10. 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).

11. 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).

12. 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

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

    Michael Hawkins AM
    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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