1915666 (Refugee) - [2025] ARTA 1126

1915666 (REFUGEE) [2025] ARTA 1126 (9 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1915666
Tribunal:General Member S Fitzsimons
Date:9 January 2025

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

Statement made on 09 January 2025 at 11:46am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – fear of harm based on being liable for repayment of a loan taken out by her stepfather from a loan shark – evidence was consistently vague and lacking in substantive detail – not satisfied that the applicant faces a real risk of serious or significant harm – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 15 June 2019 to refuse to grant the applicant a protection visa under s65 of the Migration Act 1958 (Cth) (the Act).
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 17 June 2019. On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Tribunal can continue this review that commenced in the AAT and consider and determine the matter accordingly.[1]
[1] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
The applicant who claims to be a national of Malaysia, applied for the visa on 13 November 2018. The delegate refused to grant the visa on the basis that she was neither a refugee nor owed complementary protection.
The applicant appeared before the Tribunal on 12 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s36 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 s36(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: s5H(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: s5H(1)(b).
Under s5J(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 s36(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: s36(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 ss36(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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues to be determined in this case are whether the applicant is either a refugee or entitled to complementary protection as set out in s36(2) of the Act. The applicant’s claims relate to a fear of harm based on her being liable for repayment of a loan taken out by her stepfather from a loan shark. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
What is the applicant’s country of nationality?
The Tribunal has before it a copy of the applicant’s Malaysian passport which was included with her protection visa application. The delegate was satisfied of the applicant’s identity. At the hearing the applicant told the Tribunal she is a Malaysian citizen which the Tribunal accepts. The Tribunal finds she is a Malaysian citizen and has assessed her protection claims with Malaysia as the receiving country.
The applicant’s personal background
The applicant was born on [date] [in] the state of Terengganu in Malaysia.
When she was about [age] year of age her biological parents gave her to another couple (who she referred to throughout the hearing as her stepfather and stepmother). She told the Tribunal that her biological parents could not afford to raise her which is why they gave her to her stepparents. She gave evidence that this arrangement was an informal one, not a legal arrangement.
The applicant told the Tribunal that at the time this arrangement occurred, her biological parents gave her stepparents her birth certificate and identity documents which are the documents she then used later to apply for her Malaysian passport. The passport she used to come to Australia was the first passport she had ever had. She told the Tribunal that her surname comes from her biological father.
The applicant gave evidence to the Tribunal that she has lost contact with her biological parents. She lived with her stepmother and stepfather throughout her childhood and has no stepsiblings. The person she refers to in her visa application as her adopted brother is not related to her. Rather he is an old friend she knew from school.
She completed primary school in 2010 when she was [age] years old. She did not attend secondary school. After leaving school she worked in a [workplace] and sometimes worked in a [store].
The applicant told the Tribunal that she left her stepparents family home in July 2018, about a month before she came to Australia. She said she has not had any contact with her stepmother since February 2018 and with her stepfather since late July 2018 when she left the family home.
She said that after leaving her home she went to Kelantan for about three weeks and she worked[doing specified work]. She then went to Kuala Lumpur for about a week and flew to Australia from Kuala Lumpur. She arrived in Australia on [date] August 2018. Since living in Australia she has worked in a [workplace] and has also [did other work].
The Tribunal accepts each of the above matters to be true.
The applicant’s claims for protection
Evidence before the Department
The applicant’s protection claims were contained in her visa application form. The only other document she provided to the delegate was her Malaysian passport. In her protection visa application form when asked the question why she left Malaysia, the applicant stated:
“My foster family has grown up with long debt. I’m happy to find my family, my adopted brother. I always wanted to take advantage of that. I complained to my adopted mother, my adopted mother did not care, my life was not as free as other adolescent. My adopted father love to play gambling. When I lose my place sometimes I cannot bear this hurdle. I try to complain about my neighbours but my aunty ignores the pain I have. I have a friend, I always complain about the problem. I wanted my friend. I helped her but her parents did not allow, I was determined to escape with some of my friend’s help without her parents knowledge. Arrived in Kelantan but my fate was bad because I met my long friends, I ran for help and came across a good uncle, I told me all my problems but the uncle had just stretched out a little. I told me to flee from here, after that I arrived in Kuala Lumpur, I was looking for work. After my job was working to bear my life, but my life in Kuala Lumpur was not safe because I was long around everywhere, because of the pain I took 20 years does not end I’m determined to run out of the country.”[2]
[2] Protection visa application form, Department File No: [DELETED], document ID: 5825771, applicant’s handwritten answer to question 76, page 29 (Form 866) – noting that the Tribunal has copied spelling and grammatical errors verbatim
In the visa application form in response to the question “Did you experience harm in [Malaysia]?” the applicant answered “No”.[3]
[3] Protection visa application form, Department File No: [DELETED], document ID: 5825771, question 78, page 30 (Form 866)
In the visa application form in response to the question “Do you think you will be harmed or mistreated if you return to [Malaysia]?” the applicant also answered “No”.[4]
Evidence before the Tribunal
[4] Protection visa application form, Department File No: [DELETED], document ID: 5825771, question 81, page 31 (Form 866)
The documentary evidence before the Tribunal regarding the applicant’s protection claims is the visa application form provided to the delegate and a statement in her pre-hearing response form: “The reason I don’t want to back to my country because I scared if the people still finding me. I love to stay in Australia while I’m alone here i feel safe and happy.”[5] The rest of the applicant’s evidence before the Tribunal was given orally at the hearing.
[5] Quoted verbatim from the applicant’s pre-hearing response form sent to the Tribunal on 9 April 2024, document ID: 12380269.
The Tribunal asked the applicant why she feared returning to Malaysia. She told the Tribunal that her stepfather had borrowed money from a loan shark and had used her as collateral for the loan and the loan shark was the reason she did not want to return. Sometimes throughout the hearing, the applicant used the terms “Loan Shark” and “Ah Long” interchangeably when referring to the loan shark.
In response to questions from the Tribunal the applicant said she did not know how much the loan was for or when her stepfather borrowed the money but that he used to gamble and she thinks that is why he took out a loan.
The Tribunal asked the applicant how she knew a loan existed. The applicant responded stating that a man came to her stepfather’s house in July 2018 and spoke with her stepfather about repayment of a loan for money he had borrowed. She said that the loan shark asked her father when he would repay the loan and her stepfather replied by saying that he has a daughter who works. She initially said that she thought one man came to the house and in response to further questioning from the Tribunal she stated it could have been more than one man as she heard many voices but she was not sure how many people came to the house as she did not see them. She did not talk to the man or men, when they visited the house. They only spoke with her stepfather. She did not see the man or men as she was inside the house and she could only hear the conversation.
She did not speak with her stepfather about the loan after the man or men had left the house. She does not know if the loan has been repaid.
She gave evidence that after the visit of the man or men to the house, a man was eating at the restaurant [and] that man asked her when her stepfather was going to repay the loan and that he had put her as a guarantor for the loan. The man did not tell her how much she had to repay or if there was interest to be paid, how she was to make the repayments or anything about the terms of the loan.
The Tribunal asked if the man threatened her or said he was going to hurt her. She responded by saying that the man said to her that until her stepfather pays, he would be watching her. The Tribunal asked the applicant what it was about the man that made her feel afraid. She responded by saying that the man said she had one month to settle the loan as she was the guarantor for the loan taken out by her stepfather.
The Tribunal asked the applicant how much the loan was for, when the loan was entered into by her stepfather, if there was any interest to pay in relation to the loan and what the terms of the loan were, and she responded to each of these inquiries that she did not know. She gave evidence that she did not know if her stepfather had any paperwork about the loan. She does not know if her stepfather’s debt still exists.
The applicant gave evidence that she did not speak with her stepfather at any point about any detail relating to the loan or about the visit of the man to the house. She did not have a conversation with her stepfather about the loan either after the visit of the man to the house or after the visit of the man to the [restaurant].
The Tribunal asked the applicant about her relationship with her stepparents. She said that everything was fine until early 2018 when her stepfather started gambling and he changed and became angry. The Tribunal asked the applicant if her stepfather ever harmed her. She said he did try and hit her once, but her stepmother intervened and she was not harmed. She told the Tribunal that after her stepfather hit her stepmother, her stepmother left the family home in the middle of the night. This was in February 2018 which was the last time the applicant had any contact with her stepmother. She does not know where her stepmother went, and she has had no contact with her stepmother since then. She said when her stepmother left, her stepfather stopped talking to her.
The applicant told the Tribunal that for most of her life her stepfather worked in the construction industry. Shortly before she left Malaysia, a colleague of her stepfather’s was eating at the [restaurant]. He told her that her stepfather has been sacked from his job as he was unreliable at work often turning up late or not at all. The Tribunal asked her if she discussed this with her stepfather and she said she did not, but she believed it to be true as he was home all the time.
The applicant gave evidence that the time between the man or men coming to her stepfather’s house and her leaving her stepfather’s house and moving to Kelantan was one week. She says she went to Kelantan for about three weeks and then to Kuala Lumpur for about a week before she then left for Australia.
She told the Tribunal that she had originally applied for a passport as she was considering a holiday in Singapore but that holiday did not eventuate.
The Tribunal asked the applicant when she made the decision to come to Australia. She said that she decided this when she was in Kuala Lumpur as a friend of a friend told her that she could seek protection in Australia.
Assessment of the applicant’s protection claims
Fear of persecution from a loan shark
The Tribunal has considered the applicant’s evidence in relation to the events leading to her stepmother leaving the family home and her evidence regarding the events during the week between the loan shark coming to the house and her leaving the house for Kelantan (and then ultimately leaving Malaysia). The Tribunal finds that it is plausible that:
·the applicant’s stepfather started gambling
·he took out a loan from a loan shark to service his gambling debt
·her stepfather’s demeanour changed towards his stepdaughter (the applicant) after his wife left him
·her stepfather lost his job
·the applicant did not wish to discuss the loan with her stepfather as he was angry most of the time
The Tribunal accepts that a loan was taken out by the applicant’s stepfather for his own gambling debts.
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[6] The mere fact that a person claims to fear 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, the fact 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.
[6] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[7]
[7] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
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.[8]
[8] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The applicant left the family home in Malaysia in July 2018, over 6 years ago. She has not spoken with her stepfather since then. In response to the Tribunal’s questions regarding the current existence of the loan, its amount, its terms and evidence of her being responsible for payment of her stepfather’s loan, the Tribunal found the applicant’s evidence to be unsatisfactory. Her evidence was consistently vague and lacking in substantive detail in these key areas of fact regarding the claimed loan and her role in that loan as guarantor. The applicant consistently told the Tribunal that she did not know if the loan still exists. The onus is on the applicant to specify the particulars of her claim to the Tribunal.[9]
[9] s5AAA of the Migration Act 1958.

The Tribunal is not satisfied on the evidence before it that the loan does still exist and that the applicant is liable to repay her stepfather’s loan. The Tribunal finds the applicant does not have a well-founded fear of persecution from money lenders or loan sharks or for any related reason, now or in the reasonably foreseeable future or as a necessary and foreseeable consequence of her removal to Malaysia. This is because the Tribunal does not accept that the loan still exists or that she is liable to pay her stepfather’s loan.
When the Tribunal put to the applicant that based on the evidence before it the Tribunal may find it difficult to accept that there is a factual basis for her fear (that is the existence of the loan) and therefore there is not a well-founded fear of persecution now or the in the reasonably foreseeable future, the applicant responded that she did not know if the loan still existed.
In making its findings, the Tribunal has considered that on several occasions throughout the hearing the applicant answered the Tribunal’s questions in English and this impressed upon the Tribunal that the applicant understood the questions put to her. The applicant was assisted throughout the hearing with a Malay interpreter.
Does the applicant satisfy the refugee criterion for protection?
For the applicant to be considered at law a refugee,[10] she must have a well-founded fear of persecution. The law requires a factual or objective basis for the fear to be well-founded.[11] The law also requires that there be a real chance of persecution for the fear to be well-founded.[12] As the Tribunal is not satisfied on the evidence before it that the loan still exists and that the applicant is liable for her stepfather’s loan, there is no objective factual basis for the fear she holds and there is also no real chance that the applicant will be persecuted if she returns to Malaysia. For the reasons above, and on the evidence before it, the Tribunal has concluded that the fear held by the applicant is not well-founded.[13]
[10] s5H(1)(a) of the Migration Act 1958.
[11] Chan v MIEA (1989) 169 CLR 379 at 412, 396, 406, 429. As Dawson J stated at 396, ‘Whilst there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear’.
[12] S5J(1)(b) of the Migration Act 1958.
[13] s5J(1)(b) of the Migration Act 1958.
The Tribunal is not satisfied that the applicant is a refugee as defined in s5(H)(1)(a) and therefore she does not meet the criteria for protection in s36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa).
For the applicant to satisfy the complementary protection criterion, the Tribunal must be satisfied that, as a necessary and foreseeable consequence of her being removed from Australia there is a real risk she would suffer significant harm.[14] Significant harm is defined in s36(2A) of the Act. For the reasons outlined above, and on the evidence before it, the Tribunal is not satisfied that the loan still exists and that the applicant is liable to repay her stepfather’s loan and it follows that there is not a real risk that the applicant would suffer significant harm, as legally defined, if she returns to Malaysia in the reasonably foreseeable future.
[14] s36(2)(aa) of the Migration Act 1958.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
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 s36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).
There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(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.
Date of hearing: 12 December 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.
…
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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