1913076 (Refugee) - [2024] ARTA 647

1913076 (REFUGEE) [2024] ARTA 647 (7 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1913076
Tribunal:General Member Gabrielle Simm
Date:7 November 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 07 November 2024 at 10:59am
CATCHWORDS
REFUGEE – protection visa – Malaysia – economic conditions and crime – application completed by another person without applicant’s knowledge of contents – fear of harm from money lender – borrowed to gamble – physical health, disability and reduced employment opportunities – no documentation or contact or harm to family members – explanation for late claim – challenge of completing long and complex form in English – no adverse inference drawn – country information – universal health care system and disability payments – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 376A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Malaysia, applied for the visa on 16 February 2019. The delegate refused to grant the visa on 15 May 2019.
The applicant appeared before the Tribunal on 30 April 2024 to give evidence and present arguments. The hearing was commenced with the assistance of an interpreter in the Malay and English languages but after a few minutes, the interpreter suggested that another language would be more appropriate. After an adjournment the hearing recommenced with an interpreter in the Mandarin and English languages.
The applicant appeared at further hearing on 1 October 2024 in a combined hearing with his wife. Due to the need to use different language interpreters, each applicant gave evidence separately. The applicant gave evidence with the assistance of an interpreter in the Mandarin and English languages.
The applicant was unrepresented in relation to the review.
BACKGROUND
The applicant is a [Age]-year-old man from Sabah, Malaysia. He identifies as being of Chinese ethnicity and Buddhist. Based on his written and oral evidence, the Tribunal accepts the following to be true:
a.The applicant’s parents are retired and living in Penang. He is not in contact with them.
b.The applicant was the [birth order] of [children] but his oldest sister had died. His older brother worked in [job task 1] in Sandakan, Sabah. The applicant was not in contact with him. One sister works in [work sector] in Kuala Lumpur and he remains in contact with her. She sends him money once a month. His other sister doesn’t work and lives in Penang.
c.He completed school in Penang and then went to work for his uncle in Sabah in a [shop] for ten years.
d.In 2010 he married [Ms A], [a Country] citizen, in Sabah They have [children, genders, names and dates of birth]. The children are currently living with his wife’s mother in Sabah.
e.He is in contact with his [children] and used to send them money while he was working but hasn’t been able to since he stopped work.
f.The applicant arrived in Australia with his wife. He had worked [doing job task 1] in Victoria and Queensland but stopped working in November 2023 due to complications of [condition] with his [body part], which was [operated on] in December 2023.
g.He currently lives in Melbourne rent-free with his carer close to the hospital where he goes for check-ups. He receives financial support from his wife and one of his sisters in Malaysia.
Evidence before the Department
In his protection visa application, the applicant stated that he was born in Sabah, Malaysia; that he was of Chinese heritage and a Christian. He had gone to school in Ipoh, Perak state, had finished school in [Year] and then been employed in [job task 1] at [Employer] from 2004 until 2017. He and his wife [Ms A] travelled together to Australia. No children were listed on the form.
He claimed to fear crime, in particular ‘thefts, snatches,’ gangsterism and child kidnapping in Malaysia. He also referred to the Malaysian economy as being in a critical condition and raised concerns about the cost of living.
The applicant was not invited to interview. The delegate refused his application on the basis that he did not fear harm for a refugee reason so he was not a refugee. He was not entitled to complementary protection on the basis that state protection was available.
Evidence before the Tribunal
At hearing, the applicant stated that he had paid someone to fill out the form for him who had not read it back to him and that he did not know what it contained. He could speak conversational Malay but required a Mandarin interpreter for formal situations like the hearing. He clarified that he was not Christian, but Buddhist. He corrected the date provided for his marriage and was unsure of his wife’s date of birth. He had never worked for [Employer] but he had worked for his uncle, opening and closing his [shop], in Sandakan, Sabah, for ten years. He had not gone to school in Ipoh but in Penang.
The applicant gave evidence that the claims made in the protection visa application form were not his claims. He claimed that:
·he had borrowed a total of MYR 1.6 million from friends and an Ah Long (moneylender) called [Mr B] in Penang. There were no documents associated with the loans as those people had trusted him.
·He had gambled at the casino and lost all the money and he had not repaid any of it. He now owes more than MYR 1.6 million plus interest but is not sure exactly how much he owes.
·He had not been contacted for over five years by the money lender as he and his parents changed their phone numbers after he arrived in Australia.
·If he had to return to Malaysia, he was concerned that if he had to leave the house to buy food, the money lenders would see him.
·He was not concerned about thefts or gangsterism.
The applicant was concerned about his children being kidnapped by the people to whom he owed money. When the Tribunal put to him that if someone had wanted to kidnap or otherwise harm his children or his parents, they had had over five years to do this since he arrived in Australia, but that nothing untoward had happened. The applicant responded that if something happened to the children, his parents would make a report to the police.
The applicant was concerned about police corruption in Malaysia. When the Tribunal put to him DFAT’s assessment that the police in Malaysia are generally effective, he disagreed, stating that ‘if you are rich in Malaysia, you can do things.’ He also said that he thought that police corruption was still the same as when he left Malaysia, it was very bad.
The applicant was concerned about the cost of living if he returned to Malaysia. He stated that he used to be able to earn much more in Australia compared with Malaysia. Now that his [body part] had been [operated on] and he used a [mobility aid 1], he was not sure what would happen if he had to return to Malaysia and he did not know what work he could do.
When asked whether he could stay with the uncle for whom he had worked for ten years, the applicant replied that he could not as he was no longer working for him. His older sister is married and does not have room for him to stay. She told him not to return as people might be looking for him. She had not been contacted by anyone looking for him as she lived in Kuala Lumpur.
The Tribunal asked whether the applicant was able to provide any medical reports about his health. He stated that his diabetes was now being managed and he was taking medication for cholesterol. He was waiting for a [mobility aid 2]. The Tribunal gave the applicant three weeks following the hearing to provide any further medical reports but none were received.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (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.
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, 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Findings
The applicant provided the Department with a copy of his Malaysian passport. On this basis, and given that the delegate had no concerns about the applicant’s claimed nationality, the Tribunal accepts that the applicant is a national of Malaysia and has assessed his protection claims accordingly.
Section 376A of the Act requires the Tribunal to draw an inference adverse to the credibility of the claim or evidence not before the primary decision maker if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
At hearing, the applicant claimed for the first time that he had borrowed money from a moneylender and that he feared harm from them. The Tribunal has considered whether it should draw an adverse inference in relation to the applicant’s credibility and has decided against it. The Tribunal accepts the challenges facing applicants for protection visas who are newly arrived and required to fill out a complex and lengthy form without English language skills and relying on a third party. The Tribunal therefore accepts these circumstances to be a reasonable explanation for this.
I find that the applicant has a large outstanding debt owed to people in Malaysia and that he is unsure of the exact amount he owes. I find that neither he nor any of his family members, including those who live in Penang where he borrowed money, has been contacted by the moneylenders since 2018. I find that his children have not been threatened with kidnapping and have continued to live at the same address in Sabah with their maternal grandmother during this time. I find that the applicant and his wife are living separately in Australia. I find that if he had to return to Malaysia, the applicant would return to his parents in Penang and that he would return earlier than his wife as he is unable to work in Australia. I find that he would not return to Sabah where his children are living in the care of his mother-in-law. I find that the applicant’s diabetes is now being managed and that he is undergoing rehabilitation following the [operation on his body part]. I find that he is taking medication to manage his cholesterol levels.
Country Information
DFAT’s most recent (July 2024) Country Information Report on Malaysia provides the following analysis of the situation for victims of loan sharks:
3.149 Usury is illegal. The Moneylenders Act (1951) requires that moneylenders have a licence and not charge interest rates above 18 per cent for an unsecured loan, which must not compound. Loan sharking is also covered under section 427 of the Penal Code, which prohibits ‘committing mischief’ and can carry a five-year prison term.
3.150 In practice, loan sharks or ‘pay-day financiers’ (unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), operate openly in Malaysia and charge interest as high as 50 per cent. Advertisements for cash loans appear on public property, including lamp posts and utility boxes. Loans offered through social media or smartphone apps are also common.
3.151 Motivations for taking out loans vary and can include gambling and economic disruption caused by the COVID-19 pandemic. Others take out loans for to finance small business which, if the business fails, sometimes become unsustainable debts. Loans are also made by people rejected by banks or who find bank decision-making slow or to require a lot of paperwork.
3.152 Those who do not repay loans face serious harassment. On rare occasions, victims of loan sharks have faced violence or have been sold into slavery. It is common for borrowers to have their house splashed with red paint, which is generally culturally understood to mean that they have not paid debts, causing public shame. They sometimes have their picture or pictures of their identity documents posted on telegraph poles, and families are sometimes harassed. Loan sharks sometimes hold victims bank cards or passports as collateral. Loan sharks sometimes continue their harassment even after loan has been paid off.
3.153 State protection is available to victims of loan sharks, but it is often ineffective. Being the victim of a loan shark is often perceived as a moral failing, and some police believe debtors have a religious obligation to pay their debts and consequently will not act to protect them. Formal credit agencies can consolidate loan shark debts and provide payment plans, providing some options for victims.
3.154 DFAT assesses that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. DFAT assesses that victims of loan sharks also face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters. State protection is available but not always effective.
DFAT reports on the economic and employment situation as follows:
2.7 The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2022, real GDP growth was 8.7 per cent and per capita GDP was USD 11,993 (AUD 18,000). Since Independence, Malaysia has transformed from a commodity-based economy focused on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia has also developed its service sector, which now contributes half the country’s economic growth.
2.8 Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. Households living below the national poverty line of MYR 2,589 (AUD 864) fell from over 50 per cent in the 1960s, to less than less than 6.2 per cent in 2022. Persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population (known as the ‘B40’) who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states.
2.9 The COVID-19 pandemic had a major economic impact on Malaysia, particularly on the most vulnerable. Poverty rates rose and growth fell due to the COVID-19 pandemic in 2020 and 2021, although the economy has since recovered. Ongoing economic challenges include inflation and cost of living increases, as well as high levels of household debt.
2.10 In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium and large enterprises are highly reliant on migrant labour.
On the Malaysian health system and people living with disabilities, DFAT reports as follows:
2.11 Malaysia has a well-established universal health care system which is accessible to most of the population. Health facilities are generally available within a five kilometres radius in urban centres. Healthcare is less available outside major cities, especially in Sabah and Sarawak. Healthcare for Malaysians is generally affordable: in-country sources reported that Malaysians can pay as little as MYR 1 (AUD 0.33) for a doctor’s visit and MYR 1.5 (AUD 0.50) per day to stay in a hospital.
2.12 While foreign nationals, stateless people, asylum seekers and refugees technically have the same access to the public health system as Malaysian citizens, they are required to pay ‘first class’ treatment fees, which are much more expensive. First class fees can range from three to 10 times what would be paid by a Malaysian citizen – in-country sources report first class fees of approximately MYR 15 (AUD 5) for a doctor’s visit and MYR 200 (AUD 66) per day for a stay in hospital – although fees can vary at the discretion of medical and hospital staff. These first class fees are generally unaffordable for poor, undocumented migrants.
2.13 People living with disabilities (PLWD) in Malaysia often face challenges in daily life. UNICEF reports that PLWD, especially children, are often hidden, portrayed negatively or excluded from society, face daily stigma and discrimination, and are prevented from accessing their rights due to gaps in legislation.

DFAT notes that Malaysia is party to the Convention on the Rights of Persons with Disabilities.[1] According to the US Department of State, disability rights NGOs reported that employers were reluctant to hire persons with disabilities and there were no laws that expressly protect Malaysian from discrimination in employment on the ground of disability.[2]
[1] DFAT Country Information Report – Malaysia – 24 July 2023, 2.24.
[2] US Department of State, 2023 Country Reports on Human Rights Practices: Malaysia (2024).
The Malaysian OKU (disability) card which provides the following benefits to eligible persons: telephone discounts, disability allowance, general assistance payment, tax relief and transport discounts.[3] Malaysian citizens are eligible for a minimum MYR 300 monthly payment and potentially for a disabled worker’s allowance if they are employed.[4]
[3] How an OKU card benefits persons with disabilities | FMT; 28 August 2022; JPOKU (Daftar OKU) (in Malay).
[4] Kazaneh Research Institute, ‘Building Resilience: Towards Inclusive Social Protection in Malaysia’ (2021), p72. KRI - Building Resilience.
Does the applicant satisfy the refugee criterion for protection?
Real chance of serious harm
Under s5J(1)(b) of the Act, the applicant needs to show that there is a real chance that, if he returned to Malaysia, he would be persecuted for a refugee reason.
Victim of loan sharks
Neither the applicant nor any of his family members, some of whom continue to live in Penang where he borrowed money from the moneylender, has been contacted by the moneylenders or anyone associated with them since 2018.
The applicant’s children live in Sabah with their maternal grandmother. The applicant claimed to fear that they would be kidnapped by the moneylender or his associates. However, there is no suggestion that the moneylenders are aware that the applicant has children or whether they live. The children have continued to live at the same place since the applicant departed for Australia in 2018 without any contact from the moneylenders.
The applicant indicated a general mistrust of police in Malaysia on the basis that they are corrupt. Giving the applicant the benefit of the doubt, the Tribunal has interpreted this claim in the context of his claim to fear harm from the moneylender, ie that if he were threatened by harm from the moneylender, the police would not protect the applicant if the moneylender bribed the police. This claim receives some support from the DFAT Country Information Report on Malaysia which concludes that for victims of loan sharks, ‘state protection is available but not always effective.’[5] However, the issue of whether state protection is available and effective does not arise unless there is a real chance of serious harm to the applicant. Given that neither the applicant, nor his family members in Penang, nor his children in Sabah, have been contacted by the moneylender since 2018, the Tribunal does not accept that the chance that the moneylender will contact them now or in the reasonably foreseeable future is anything more than remote.
[5] DFAT Country Information Report, above n1, 3.154.
For these reasons, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant now or in the reasonably foreseeable future as a result of his unpaid loans if he returns to Malaysia.
Economic hardship
The Tribunal has considered whether the applicant might face economic hardship if returned to Malaysia. ‘Significant economic hardship that threatens the person’s capacity to subsist’ is listed as an indicative example of serious harm in s5J(5)(d) of the Act.
Serious harm
Following the [operation on his body part], the applicant may be considered to face reduced employment prospects as his previous work was a range of manual labour. The applicant is in a less competitive position than other jobs seekers in the labour market and is likely to face discrimination from potential employers.
Real chance
However, the applicant is a Malaysian citizen, which means he will be eligible for disability payments. He is not eligible for any government assistance in Australia so since he stopped working when his [body part was operated on], his sister in Malaysia has been sending him money. Further, although he has not had contact with his parents for some time, he remains in contact with his sisters and he is confident that he will be able to live with his parents in Penang if he has to return to Malaysia. The financial support provided by his sister, accommodation provided by his parents, and the government disability allowance and other benefits mean that there is a not real chance that the applicant will suffer significant economic hardship that threatens his capacity to subsist.
The Tribunal is not satisfied that there is a real chance of serious harm in the form of significant economic hardship to the applicant if he returns to Malaysia.
Health and disability status
The Tribunal has also considered whether the applicant’s health status, namely his diabetes, combined with his disability [status], means that he is particularly vulnerable and that, taken cumulatively with his other claims, might increase his chance of facing serious harm to a real chance. However, according to the country information, Malaysia has an excellent health system which the applicant will be able to access at very low cost as he is a Malaysian citizen.[6] He gave evidence that his diabetes is now under control and that he is also managing his cholesterol levels through medication.
[6] DFAT Country Information Report, above n 1, 2.11.
As a Malaysian citizen, the applicant will be eligible for an OKU (disability) card which provides a minimum MYR 300 monthly payment, with higher payments available to disabled persons who are working. The OKU card also provides other benefits described above to people with a disability. The applicant will be fitted with a [mobility aid 2] and undergo physiotherapy to ensure he can use it properly, which will increase his mobility. The applicant has family support: he is in contact with both sisters, one of whom has provided financial support to him even while he is in Australia, and he expects to be able to live with his parents on return to Penang.
Having carefully considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm, if he was to return to Malaysia, 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).
Does the applicant satisfy the complementary protection criterion for 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).
Real risk of significant harm
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, 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].
Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
Having concluded that there is no real chance of harm to the applicant in relation to the refugee claim, the Tribunal finds that there is no real risk of harm to the applicant in relation to the same claims ie that he faces harm from moneylenders or from economic hardship, considered cumulatively with his health and disability status.
Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
CONCLUSIONS
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).
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).
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.
Dates of hearings:             30 April 2024, 1 October 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(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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