1912744 (Refugee)

1912744 (Refugee) [2020] AATA 5738 (10 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912744
COUNTRY OF REFERENCE:                   China
MEMBER:Paul Windsor
DATE:10 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 December 2020 at 10:59am
CATCHWORDS
REFUGEE – protection visa – China – beaten and threatened by loan shark – inconsistent and contradictory claims – vague and unconvincing evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASE
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 May 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of the People’s Republic of China (China), applied for the visa on 10 May 2018.
In the protection visa application it stated the applicant was born on [date] in Luoyang in Henan province, China. It stated that he is ethnic Chinese, a Buddhist and indicated he had never married. It stated he departed China legally [in] November 2017 and arrived in Australia [later in] November 2017, entering on a visitor visa.[1]
[1] See the Departmental file.
In the application it was indicated that the applicant sought protection in Australia because he owed money to a loan shark who beat him and threatened him to return the money but he could not afford to repay them.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding, in relation to the refugee criterion, that the claimed fear of harm in China is not for one or more of the five reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion, after considering relevant country information, the delegate found that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that he will suffer significant harm.
The applicant applied to the Tribunal for review of this decision on 22 May 2019. He provided a copy of the delegate’s decision record to the Tribunal.[3]
[3] See the Tribunal file.
The applicant appeared before the Tribunal by telephone on 8 December 2020. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection were set out in his protection visa application. His claims were as follows (as written by the applicant):[4]
[4] See the Departmental file.
Select the country or countries from which this applicant is seeking protection and cannot return to: CHINA
Provide reasons why this applicant left that country:
I owed shark loan too much of money and not able to return them. They keep beat and threat me to return the money. I could not afford to pay them. Then they also disturb my family. I have no choice but leave china for my personal and family safety. I came australia to look for a peaceful place.
Did this applicant experience harm in that country? Yes
I was being beaten and threaten by shark loan.
My life is under life because i am not able to return them money.
Did this applicant seek help within the country after the harm? No
I was threaten not to do so, otherwise my family is under risk.
Did this applicant move, or try to move, to another part of that country to seek safety? No
I was threaten not to do so, otherwise my family is under risk.
Explain what the applicant thinks will happen to them if they return to that country:
They will keep beat, torture and threat me until the debt is clear.
Does this applicant think they will be harmed or mistreated if they return to that country? Yes
Shark loan will keep harm, beat, torture, threat me because i am
not able to return them money.
They will not stop looking for me unless the debt is solve.
Does this applicant think the authorities of that country can and will protect this
applicant if they go back? No
I was being threaten not to do so, otherwise my family safety is
not secured and those authorities could not protect me and my
family all the times.
Does this applicant think they would be able to relocate within that country to an
area where they would not be harmed? No
I was being threatened not to do, otherwise my family safety is not secured
The applicant submitted a brief statement in support of his review application. In this statement he indicated that he had employed an ‘unprofessional translator’ who did not give him information on time so he missed the opportunity to provide the Department with more documents or information to prove his refugee status. He indicated that he can provide the debt loan contract if given the chance; that he is currently working hard to pay his bills and his debt, and that he can’t return to China at the moment due to the dangerous situation for him and his family members.[5]
[5] See the tribunal file.
Findings and reasons
Identity
On the basis of the copy of his Chinese passport submitted to the Department,[6] the Tribunal accepts that the applicant is a national of China and that his identity is as claimed. The Tribunal accepts that China is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[6] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his receiving country of China, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
For the reasons set out below, the Tribunal finds that the applicant is not a credible witness and that he has concocted his claim to have been physically harmed and threatened by a loan shark because he borrowed ‘too much of money’ that he could not repay.
Assessment of claims
Assistance with the protection visa application
At the start of the hearing the Tribunal asked the applicant if he was sure that everything in his protection visa application is true and correct as far as he knows and believes. He said it was. When asked if there were any mistakes he wished to correct, the applicant replied, ‘no, not for the moment’. When asked if he had any help in preparing the application, contrary to what was stated in the application, the applicant replied that he asked another person to fill it out for him as he does not understand English. He said this person was a friend and he did not pay them. When asked if his friend read back to him in his language what they had written, the applicant said he related all matters to this person and they wrote it down in English. He indicated they did not read it back to him but told him it was correct.
Background
Contrary to the advice in his application that he had never married, the applicant indicated that he is married and has a [age] year old daughter. He indicated his wife and daughter live in Luoyang city in Henan province, China where he was born and also lived before he came to Australia. He indicated that his wife used to work [but] said she just lost her job three months ago. When asked what his daughter does, the applicant said she has just graduated from University where she completed a course in [a specified field].
Contrary to the advice in his protection visa application, which indicated that he worked for [Company 1] from [1968] until [2017], the applicant said for the last ten years he had worked for [himself] in [a specified industry]. When asked if he ever worked for [Company 1], the applicant indicated he did not, but said he also worked in a [factory] in Luoyang for 10 years.
When queried about the mistakes in his protection visa application in relation to his marital status and work history, the applicant said it was a ‘misunderstanding’.
When asked if he was working in Australia, the applicant indicated that he is involved in [a specified occupation].
Why the applicant came to Australia in November 2017
The Tribunal asked the applicant why he came to Australia in November 2017. He said he was pursued by mafia gangs. When asked why, the applicant said they set him up and he owes them a lot of money. When asked how he was set up, the applicant said they entrapped him to do gambling. When queried how they did this, the applicant said in the beginning a few people came to him and they played small games but it became bigger and bigger . He said when he did not have money, they lent him money. When asked, he said they played a card game.
The Tribunal asked the applicant why he decided to play cards for money with such people. He replied that two of them were his friends, commenting that he did not know but they set him up together. When asked why they would do this, the applicant said he had some money from his business. The Tribunal queried why friends of his would set him up with a mafia gang. The applicant replied that he does not know, commenting that they just said it is fun to play. The Tribunal asked the applicant why he would keep playing after he had lost all his money and had to borrow money to keep playing. The applicant replied that he wanted to win his money back.
The Tribunal asked when this happened. Initially the applicant said it was in 1985. When queried if this was correct, he said 1995. When queried that 1995 was 22 years before he came to Australia, the applicant said it happened three years before he came to Australia, in 2014.
When asked how much he borrowed, the applicant said it was [Amount] yuan (approximately AUD[amount] at the current exchange rate). When asked, he said he borrowed the money from a loan shark. When asked why a loan shark would lend him such a large amount of money, the applicant said he used his house and car as security. When queried why he would borrow such a large amount of money to gamble on cards, the applicant said when a person is gambling they will do anything. When the Tribunal put to the applicant that it has trouble believing that he would borrow that much to gamble on cards, the applicant said he did it in batches. When asked why he would continue to borrow if he was risking his home, car and the safety and security of himself and his family, the applicant commented that gamblers cannot control themselves.
The Tribunal asked the applicant why a loan shark would lend him such a large amount of money, commenting that loan sharks want to be sure they can get their money back. The applicant replied that they used his wife and daughter as a threat.
The Tribunal asked the applicant what happened next. He said he was not able to work after that and had to hide. He commented that they told him if he did not pay the money back they would amputate his arms and do something to his wife and child.
The Tribunal asked the applicant if he has repaid the money. He said he sold his house and car but it was not enough so he divorced his wife and fled. The Tribunal asked the applicant how much he still owed the loan shark. He replied that he cannot calculate the amount ‘clearly’ because the interest has ‘rolled over’. He said the interest is 3 per cent per month. When asked, the applicant said he paid them [Amount] yuan when he sold his house and car. The Tribunal asked the applicant if he came to an agreement with them about repaying the remainder of the debt. The applicant replied that it is useless because they would not agree. The tribunal asked the applicant if that was the case, why he paid them [Amount] yuan. He replied that he did it to buy time, so he could prepare to come to Australia. The Tribunal asked the applicant if he had made any repayments since he has been in Australia. The applicant said he had not, commenting that he could not afford to.
The Tribunal queried why the loan shark would have lent him more than they could recover from the security he had put up. The applicant replied that two friends acted as guarantors. The Tribunal commented if that was the case, those people would be responsible for the debt if he could not pay it. The applicant replied that he later learnt those two people belonged to ‘the same group’.
The Tribunal asked the applicant what happened when he told the loan shark he could not repay the debt. He replied that he thought he would become disabled. The Tribunal asked the applicant how he avoided these people. He replied that the only choice he has is not to return to China. The Tribunal asked the applicant how he was able to avoid these people while he was still in China. He replied that he fled to another city. The Tribunal asked the applicant if he could avoid these people by relocating to another city why couldn’t he return to China and live in another city. He replied that he can’t because they have good connections. When queried why they did not find him while he was in China, the applicant said he went to Australia before they came for him.
The Tribunal put to the applicant that in the claimed circumstances it would be expected the loan shark would have targeted his family for repayment of the loan, as had been suggested in his protection visa application. The applicant replied that he has disconnected from his family. The Tribunal commented that in his application it was stated that these people also disturbed his family. The applicant replied that is why he went to seek protection in Australia, commenting that he wants to ask his family to join him in Australia. The Tribunal commented that his evidence, including when asked about his family at the start of the hearing, does not indicate that he is divorced or disconnected from his family. The applicant replied that his contact with his family is private, adding that he superficially told the loan shark he is divorced.

The Tribunal put to the applicant that it seems likely the loan shark would still target his wife and daughter to try to get their money back, noting he indicated his daughter had been going to university, which suggested they had some money. The applicant said he asked them to make a report to the police, so the loan shark would only target him. The Tribunal queried the applicant why he didn’t make a report to the police himself if that would deter the loan shark. The applicant replied that in China the police have no ability to manage matters involving the mafia. The Tribunal asked why, if that was the case, he would have asked his wife and daughter to make a police report. The applicant replied that it is just psychological comfort. The Tribunal queried if that was the case, it would be expected that the loan shark would continue to target his wife and daughter. The applicant replied that his wife and daughter have fled to the countryside. When the Tribunal commented that he said earlier in the hearing that they were living in Luoyang city, the applicant said they are in a newly rezoned area that previously was countryside. When asked, he said he did not think he would be safe living there as he would still be fearful that the loan shark would find him.
Noting the comment in the applicant’s statement submitted with the review application that he could provide the loan contract, the Tribunal asked the applicant if he had any documentation relating to the money he claims to have borrowed. The applicant replied that he gave them a debt note. The Tribunal asked if there was a loan contract. He said he just gave a debt note at the gambling place with his fingerprint on it. He commented that it did not include the interest. When asked, he indicated he did not retain a copy. The Tribunal asked the applicant why his statement of 22 May 2019 indicated that he is currently working hard as much as he can to pay his debt and that he could provide the ‘debt loan contract’ if given the chance, contrary to his evidence at the hearing that he has not repaid any of the claimed debt since he has been in Australia and does not have a copy of the claimed debt loan contract. The applicant replied that the debt note is similar to a contract.
Assessment
After carefully considering the totality of the applicant’s evidence, the Tribunal concluded that he has concocted his claim to have borrowed a large sum of money from a loan shark, which he cannot repay, and that he was threatened and beaten by the loan shark/their mafia gang agents and would be threatened, beaten and tortured if he returned to China. This is for the following reasons, considered cumulatively.
Firstly, the Tribunal found the applicant’s evidence generally regarding the circumstances in which he came to borrow a claimed [Amount] yuan to be vague and unconvincing. The applicant’s evidence was not spontaneous and detailed but was only elicited following close and persistent questioning by the Tribunal. As discussed further below, the Tribunal found the applicant modified his evidence under questioning, contradicting his earlier statements.
Second, the applicant struggled to indicate when he borrowed the money, finally settling on about three years before he came to Australia. He could not explain to the Tribunal how he managed to avoid the loan shark and their mafia gang agents over the ensuing period once it became clear that he could not repay the claimed debt, other than to claim that he fled to another city, contradicting his written claim that he did not move, or try to move, to another part of China to seek safety because he was threatened not to, otherwise his family would be under risk.
Third, the applicant claimed that he got involved in gambling on a card game, which he said resulted in the claimed debt, because he was entrapped by two friends, but he could not provide a plausible reason (such as some past incident that might have resulted in enmity between them) why friends would have done such a thing or why his friends would be associated with a mafia gang without his knowledge.
Fourth, in his oral evidence the applicant did not indicate that he was beaten or that his family were disturbed, as was indicated in his written claims. While he claimed he was told they would amputate his arms and do something to his wife and child, he did not indicate that either he or his family members had suffered harm. When asked what happened after he told the loan shark he could not repay the claimed debt the applicant commented that he reckoned he would become disabled. When asked how he avoided these people, however, he did not provide an answer but commented that the only choice he has is not going back to China. As noted above, when pressed further he said he fled to another city, contradicting his written evidence.
Fifth, at the hearing the applicant indicated that his family made a report to police, on his advice, contracting his written statement that he did not make any police reports because he was threatened that if he did it would put his family’s safety at risk.
Sixth, the applicant’s oral evidence at the hearing that he has not made any repayments while he has been in Australia and does not have a copy of the debt/loan agreement clearly contradicted the written statement submitted with his review application on 22 May 2019, which indicated that he was working hard to pay off his debt while he was in Australia and had a copy of the loan document which he could provide.
Seventh, the applicant’s oral evidence at the hearing did not indicate that his family (wife and [age] year old daughter) had been disturbed, threatened or harmed in any way in the over three years since the applicant left China and came to Australia, contrary to his written statements that he was threatened that his family’s safety would be at risk if he either went to the police or relocated to seek to avoid his claimed creditors. As noted above, when queried at the hearing on why his family had not been approached about his debt, the applicant made inconsistent and contradictory claims, firstly that he had divorced his wife and disconnected from his family (contrary to his evidence earlier in the hearing which made no mention of him being divorced and indicated he is still in close contact with his family, and his later evidence that he wants his wife and daughter to join him in Australia); secondly, that they had made a police report for their safety (contrary to his written statement that no police reports were made because he was threatened that would place his family’s safety at risk) and thirdly; that his family had relocated to the countryside (contrary to his evidence earlier in the hearing that they lived in Luoyang city). The Tribunal considers that if the applicant had a large remaining debt as claimed, his creditors would have located and harassed and threatened his family members, as had been indicated in the applicant’s written claims.
Eighth, the applicant could not provide a plausible reason why a loan shark would loan him so much more money ([Amount] yuan) than the value of the claimed securities he offered (his house and car valued at [Amount] yuan). Initially he said they used his wife and daughter as a threat. As discussed with the applicant, the Tribunal considers that loan sharks want to make money from their loans, so want to have some assurance that the borrower will have the capacity to repay the amount loaned plus interest repayments. When pressed on this issue, the applicant altered his account, commenting that he was able to borrow so much money because two friends acted as guarantors for the loan. When queried if that was the case, his friends would be responsible for covering the debt, the applicant again altered his evidence, commenting that he later learnt his friends were part of the same mafia gang. The Tribunal considers if this was the case, it makes no sense for them to act as guarantors for the loan, because it would result in more money being lent than could possibly ever be recovered.
As the Tribunal finds that the applicant does not owe a large amount of money to a loan shark and has not been threatened or beaten by a loan shark or mafia gangs acting on behalf of a loan shark, the Tribunal finds that there is not a real chance or a real risk that the applicant would suffer serious harm or significant harm from a loan shark or their mafia gang agents should he return to China.
As the Tribunal finds that the applicant does not face a real chance of suffering serious harm or a real risk of suffering significant harm should he return to China, the Tribunal finds that the applicant does not require the protection of the Chinese authorities.
Does the applicant have a well-founded fear of persecution if he returned to China?
For the reasons given above, the Tribunal does not accept there is a real chance that the applicant will suffer persecution involving serious harm from a loan shark or mafia gang debt collectors acting on their behalf, for one or more of the five reasons mentioned at s.5J(1)(a), if he was to return to China, now or in the foreseeable future.
Accordingly, 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
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to China, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from a loan shark or mafia gang debt collectors acting on their behalf, or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
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.
…

[2020] AATA 5738

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