1915886 (Refugee)

[2024] AATA 4425

1915886 (Refugee) [2024] AATA 4425 (26 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1915886

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Troy Barty

DATE:26 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 26 September 2024 at 4:46pm

CATCHWORDS

REFUGEE – Protection Visa – Thailand – the family owes money to a loan shark – race – white South African – would face financial struggles – there have been no issues with the loan shark recently – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant arrived in Australia on [date] August 2016 when he was [age] years of age. He applied for the protection visa on 3 November 2017. In his application he said that he was a citizen of Thailand. The delegate refused to grant the visa on the basis that the applicant had not claimed to fear harm on return to Thailand because of his race, religion, nationality, political opinion or for being a member of a particular social group. There was no information to suggest that the applicant would be targeted on return to Thailand for one of those reasons. The delegate was not satisfied there was a real chance of persecution, and the applicant was not a refugee as defined. In relation to financial hardship on return to Thailand the delegate concluded that the harm is not ‘significant harm’ within the meaning of s36(2A) and the applicant was not a person to whom Australia had protection obligations.  

3. The applicant appeared before the Tribunal on 23 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

1. 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

1. 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

1. The issue in this case is whether there is a real chance that, if the applicant returns to Thailand, they will be persecuted for one or more of the five reasons set out in s5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Nationality

1. The applicant claims to be a citizen of Thailand and has provided a copy of his Thai passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Thailand. The Tribunal accepts that Thailand is the applicant’s country of nationality and receiving country.

The applicant’s claims and evidence

1. The applicant’s visa application stated that he left Thailand to study English in Australia and the other reason was his family’s financial situation. He said he could not earn enough to support himself and his family. He could earn more in Australia than if he stayed in his country. If he returned to his country his family would face bankruptcy and might be homeless. Moving to another part of the country would not make any difference – it is the same everywhere in his country, and the authorities are not able to help. 

2. In the pre-hearing information form he provided in April 2024, the applicant said he chose to pursue study in Australia to refine his English skills but also because of financial difficulties his family faced in Thailand. His focus on academics shifted when he arrived in Australia. If he continued to study, his parents would need to make significant sacrifices or work tirelessly. Australia symbolises an opportunity to lift his circumstances despite his limited educational background. He did not face direct peril in Thailand, but unemployment posed significant obstacles.

3. At the hearing, the applicant provided further information in response to the Tribunal’s questions. He said that his father, mother and two younger brothers still live in Udon Thani in Thailand. His family has a farm. His father works on the farm and does some other paid work when that is available. His mother has gout and does not work. One of his brothers has just finished studying and is waiting for a position as [an occupation]. His other brother cares for their parents and helps on the farm. All four of them live together in Udon Thani. The farm grows [vegetables].

4. The applicant completed secondary school and then studied for 2 further years. He then worked at [a] company before coming to Australia in 2016.

5. It was when he was in Australia that he learnt about applying for the protection visa. He completed the application himself. He initially studied English and worked for cash in Australia, and since he obtained work rights he has worked on a [farm].

6. The applicant said he initially came to Australia to improve his English skills. The reason he does not want to return to Thailand is the financial situation. The family has debts and only his father works. The applicant said he is the main income earner for the family, and he sends money to them regularly to repay the debts. Depending on how much they need, he sends about 4,000 to 5,000 THB twice a month for his family and to pay off the debts.

7. When asked about the debts, he said that the family owes money to a loan shark and an agricultural bank. He could not remember how much the family borrowed from the loan shark but thought it was more than 100,000 THB. It was taken out before he left Thailand. Initially he said that they had nearly finished repaying that debt and that 4000 to 5000 THB remained to pay, but later in the hearing he said that the family had repaid about half and owed 40,000 to 50,000 THB. Before he left Thailand, the loan shark threatened them and wanted them to repay the loan but as they are repaying the interest, the loan shark does not trouble his family. When asked, he said if they do not pay the interest, then the loan shark would come.

8. The other loan is a larger loan from a bank (he thought it was for one million THB) which his father took out many years ago and which they use each year to draw money to operate the farm. That loan was also used to pay for his education. When asked what these debts had to do with him, he said that debts are a family responsibility.

9. When asked what would happen to him now or in the reasonably foreseeable future if he returned to Thailand, he said that there is no risk of harm in Thailand directly. The only issues he had before he came to Australia were with the loan shark who would annoy the family. He said there was no problem at the moment.

10. He said if he went back to Thailand, he would face financial struggles, and to have a job is very important. In Thailand the salaries are about 8,000 THB per month, and it is not enough. When we discussed the law and the issue of whether he feared harm for reasons of race, religion, nationality, political opinion or membership of a social group; that the financial hardship he described would not be the result of systematic and discriminatory conduct; and that the harm feared would not amount to serious or significant harm, the applicant said he wanted to continue his education here and his parents sacrificed so much for his education. He acknowledged the main issue was the financial situation, and hardship for him and his family if he returned to Thailand. He said work is hard to find in Thailand.

11. When asked about his protection application which mentioned homelessness and bankruptcy, he said that before he came here, the loan shark threatened them and wanted them to pay. If he had to return, the applicant said that if they did not have the money the lender would come and threaten them. When pointed out that his brothers and father could also work and pay off debts, he said that with their income, it is hard to save money to repay the debt. When asked how other farming families managed, he said that he did not know and could not comment on other families.

12. When asked if he had anything else he wanted the Tribunal to consider, the applicant said that he came here to study and because of his family’s financial situation. Financial hardship for the family is the main issue.

Country information

1. In relation to the economic situation in Thailand, DFAT reports that Thailand experienced rapid economic growth and social development since the 1960’s. It is considered an upper-middle income economy. Tourism is a large part of the economy – 20% overall. Other major sectors are services, manufacturing and agriculture. Agriculture contributes less than 10 percent of GDP, with about one-third of the population employed in agriculture.[1]

   [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, 18 December 2023 at 2.7-2.8

2. Poverty has reduced in the last 30 years to 6.8 percent in 2020. Inequality remains very high, with rural households generally much poorer than urban households. The official unemployment rate is very low but in practice there is considerable unemployment and underemployment. Other economic challenges include low productivity, high levels of household debt and falling real wages and a large shadow economy.[2]

   [2] DFAT at 2.9

3. Thailand has expanded its welfare system over the past decade and about 14.5 million Thais are eligible for benefits.[3]

   [3] DFAT at 2.10

4. Country information indicates that illegal lending is a serious issue in Thailand. DFAT reports that it accounts for an estimated 20 per cent of total lending. Many borrowers have multiple debts – lending from one to pay off another. Loan sharks charge high interest rates.[4]

   [4] DFAT at 3.112-3.113

5. Loan shark operators include criminal gangs, wealthy individuals and corrupt officials. Enforcers use a variety of means to get borrowers to repay their debts, including verbal harassment, threats of legal action and vandalism. It can also extend to seizing household assets, burning down homes or businesses, violent threats against victims, their family members and guarantors and carrying out physical attacks. DFAT reports of cases where victims were beaten or forced into drug trafficking or sex work to repay their debts.[5]

   [5] DFAT at 3.113 – 3.115

6. Loan Sharking is a criminal offence and interest is limited to a maximum of 15 per cent. Loan shark victims can get support and police do investigate loan sharks.[6] The government is active in disrupting the practice and police arrested 100 people in the first half of 2022,[7] although recent news reports confirm that assaults and harassment and threats continue to occur.[8]

   [6] DFAT 3.115 – 3.117

   [7] DFAT at 3.116

   [8] Thongnoi J, Millions of Thai borrowers struggle to get out of debt, Benar News, 1 March 2024, Millions of Thai borrowers struggle to get out of debt — BenarNews; Ngamkham, W, Loan sharks held for hitting woman, Bangkok Post, 29 July 2024, Bangkok Post - Loan sharks held for hitting woman

7. In December 2023 the Prime Minster declared a crackdown on illegal loans and loan sharks as a national priority. In addition the police set up a suppression centre to receive complaints about loan sharks.[9] Mechanisms put in place to help mediate between debtors and non-banking creditors were accessed by 150,000 people.[10] DFAT also reports that corruption is a serious obstacle and local officials are often involved in loan sharking or turn a blind eye to it and it can be difficult to access state protection where the alleged loan shark is a high-ranking official, military or police officer or local powerbroker.[11]

The Tribunal’s analysis and conclusions

[9] Wipatayotin, A, Loan sharks now targeted by Srettha, Bangkok Post, 9 December 2023, Bangkok Post - Loan sharks now targeted by Srettha

[10] The Nation, Govt will keep helping loan shark victims, even unregistered ones: Anutin, 3 March 2024, Govt will keep helping loan shark victims, even unregistered ones: Anutin (nationthailand.com)

[11] DFAT at 3.117

1. The applicant’s evidence at the hearing was generally clear and direct. He has consistently stated that the reason he came to Australia was to improve his English and to assist his family financially. At the hearing, other than some differences about the outstanding debt remaining to the loan shark, his evidence was consistent, and the Tribunal accepts that his family has two loans (one to a bank and one to a loan shark) and his income in Australia is important to support the family to repay them. He may not be the principal debtor but feels and accepts an obligation to assist.

2. The applicant stated that at present he has no concerns about returning to Thailand but is concerned for his and his family’s financial situation. When given the opportunity to discuss the nature of his concerns, he reiterated financial hardship. During the hearing when asked about the loan shark, he spoke of threats and being annoyed by them which had stopped since they had been repaying the loan.

3. Based on the applicant’s evidence and the country information, the Tribunal concludes that the economic situation in Thailand affects all individuals. There is nothing to suggest that any individual or group of individuals are targeted or subjected to financial hardship or negative economic circumstances in a directed or deliberate way. In relation to the applicant’s fear of economic harm, being his family’s financial situation, difficulty repaying debts, difficulty finding work and lower income, the Tribunal finds that the harms feared by the applicant are not for the essential and significant reason of his race, religion, nationality, political opinion or membership of a particular social group. As a result, the applicant does not meet the criteria in s5J(1)(a) and therefore the applicant does not satisfy s 36(2)(a). 

4. In relation to complementary protection considerations, there is no suggestion that the economic harm the applicant may experience in Thailand (as discussed above), would arise from the intentional or deliberate act or omission of a third person or persons that would amount to arbitrary deprivation of life, the carrying out of the death penalty, cruel or inhuman treatment or punishment, degrading treatment or punishment, or torture. For these reasons the Tribunal does not accept that any economic harm to which the applicant may be subjected if returned to Thailand meets the definition of ‘significant harm’ as that term is defined in s36(2A) and s5.

5. Although not pursued by the applicant as a reason he was concerned about returning to Thailand, given that he told the Tribunal that his family was indebted to a loan shark and country information indicates that lending from loan sharks can present a serious issue for their debtors in Thailand, the Tribunal considered the applicant’s family’s debt to a loan shark and the application of the protection criteria.  

6. Throughout the hearing the applicant emphasised that the main issue for him in returning to Thailand was the potential economic harm. When asked about the loan shark, the applicant’s evidence was delivered in a moderate tone and with a calm demeanour, which was consistent with his manner throughout the hearing. He spoke of threats and the loan shark annoying his family in the past. The applicant’s clear evidence is that he left Thailand to improve his English and help his family’s economic situation overall, not because of the loan shark. His family have remained living and working in Thailand, and the applicant’s evidence did not disclose any concern for their safety. The Tribunal accepts that the family still owes money, and it accepts the applicant’s evidence that there have been no issues with the loan shark recently. When asked what would happen in future, if they did not repay the loan, the applicant said that the loan shark would come.

1. Although given the opportunity to explain what had happened in the past and his fear of the loan shark, the applicant only mentioned them annoying his family and threats, he did not express any potential for, or fear of escalating harm. The applicant is clearly aware of the operations of loan sharks and has experience of their actions in the past. The Tribunal accepts the applicant’s evidence.

2. The family has repaid a large part of the loan. The applicant’s evidence is that he has been sending not insignificant amounts of money to his family twice a month.  The applicant’s father operates a farm, works and one of his brothers has recently completed his [training] and is hoping to gain employment. The Tribunal finds that if the applicant returned to Thailand, income from the applicant and his family members could be used to repay the family’s debts. The Tribunal also finds that the family’s capacity to generate income from a number of sources also reduces the prospect of complete default of the loan.

3. The Tribunal accepts that a loan shark annoyed the applicant’s family and threatened them in the past. The Tribunal also finds that the debt is less than it was at that time. There is nothing to suggest that if the applicant’s family is unable to maintain repayment of the remaining loan that the loan shark’s actions would be different from their past actions or would increase in intensity or severity.

1. In considering the protection criteria, the Tribunal finds that the applicant’s family owes a debt to a loan shark, has been repaying the debt and the loan shark has not harmed or threatened him or the family recently. Despite the country information about the extent and severity of actions of some loan sharks to recover their loans, the applicant did not express fear of harm from their lender beyond what they had experienced in the past, and that harm did not involve actions that would involve a threat to his life, his freedom, his health and safety, nor involve a restriction on his capacity to subsist. Given the lender’s actions in the past, that the debt is less than it was, and the family members are capable of generating income in order to make repayments, the Tribunal finds that the chance of the lender’s response escalating and becoming more severe, is less than remote. Consistent with what had occurred previously, the Tribunal finds that any harm which would arise if the family did not continue repayments would not amount to more than low-level harassment of the applicant and his family.

2. If a person fears persecution, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c). For the purposes of the Act, the Tribunal must consider whether there is a ‘real chance’ of ‘serious harm’.  Without limiting what is serious harm, s 5J(5) sets out instances of serious harm. It says serious harm can include a threat to the person’s life or liberty; significant physical harassment; significant physical ill-treatment; or significant economic hardship, denial of basic services or denial of the capacity to earn a living where those things threaten a person’s capacity to subsist. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.

3. The Tribunal finds that if the applicant returned to Thailand now or in the foreseeable future and his family were not able to maintain repayments to the loan shark, the low-level harassment that his family would experience from the loan shark would not amount to serious harm, and the chance of it escalating is less than remote. There is not a real chance he would be subjected to serious harm. Section 5J(1) is not satisfied and he does not have a well-founded fear of persecution.

4. In relation to complementary protection considerations, low level harassment which the applicant and his family would experience from the loan shark if his family were not able to maintain repayments would not amount to arbitrary deprivation of life, the imposition of the death penalty, cruel or inhuman treatment or punishment, degrading treatment or punishment, or torture. For these reasons the Tribunal is not satisfied that if the applicant returned to Thailand now or in the foreseeable future and his family were not able to maintain repayments to the loan shark, the low-level harassment which the applicant would experience meets the definition of ‘significant harm’ as that term is defined in s 36(2A) and s 5.

CONCLUSIONS

1. 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).

2. 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).

3. 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

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

Troy Barty
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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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