1917784 (Refugee)

[2024] AATA 4434

1917784 (Refugee) [2024] AATA 4434 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917784

COUNTRY OF REFERENCE:                   China

MEMBER:Mary-Ann Cooper

DATE:10 October 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 10 October 2024 at 10:18am

CATCHWORDS

REFUGEE – Protection Visa – China – feared harm from loan sharks in China– evidence regarding the unidentified loan sharks vague and unconvincing – delay in applying for protection in Australia – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 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 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 11 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 who claims to be a citizen of China, applied for the visa on 4 March 2019. The delegate refused to grant the visa on the basis that on the basis that the applicant did not satisfy the criterion in s36(2)(a) of the Act and was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa).

3. The applicant appeared before the Tribunal on 28 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. Section 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

12. In relation to the complementary protection provisions, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

13. The applicant has provided a copy of the biodata page of his Chinese passport, issued [date] 2017. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of China and as such his protection claims will be assessed against China as the country of reference and ‘receiving country’ respectively.

    Background

14. The applicant arrived in Australia on [date] August 2017 on a Visitor (Class FA) (Subclass 600) visa which ceased on [date] November 2017. On 4 March 2019 he applied for a protection visa which was refused by the Department for the reasons noted below.

    Protection visa application

15. According to the applicant’s protection visa application he was born in Jining, Shandong in the People’s Republic of China on [date], he is married but his wife remains in China and he has no other family in or outside Australia. He has no religion and is of Han ethnicity. He stated he left China because he had borrowed money from lenders and lost his investment so could not pay them back. He said they sent gangsters to demand the money and they will hurt him if he returns. He claimed he sought help but no one could help him. He said there is nowhere else he can go in China and claimed he will be hurt if he returns because they want their money back

    Decision of the Department

16. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record, a copy of which the applicant provided with his review application.

17. The delegate outlined the applicant’s claims, observing the existence of underground banks and illegal money lenders in China which operate in a ‘grey area of the economy’ but, while acknowledging instances of corruption and political interference in the police force, and relying on significant country information indicating a crackdown on shadow banking in China, concluded that effective protection is available from the State. The delegate was not satisfied that the applicant met the criteria on s 36(2)(aa) of the Act.  The delegate also concluded the applicant did not meet s 36(2)(a) of the Act because he did not satisfy s 5J(1)(a).

    Tribunal hearing

18. At the hearing the applicant confirmed that his parents and wife and children live together in Shanzhei Province and he provides them monetary support. In relation to his educational and employment background, he said finished middle school and had not had a steady job in China, working ‘odd jobs’ in the construction industry. He claimed that he had travelled to [a country] in or around 2011 to study and work and had gained a [certificate].

19. He said in 2016 he and a friend had decided to open a restaurant and had started renovations, planning to open it on 8 March 2017. They had need 1 million RMB to do so. He had borrowed 500,000 RMB from his relatives and his friend had proposed to sell his house to raise the additional 500,000 RMB. His friend borrowed that amount at a high interest rate, pending the sale of his house and the applicant had been his guarantor. On 1 May there was an electrical fire and the restaurant burned down. The applicant had been unable to repay his loan to his relatives and his friend had disappeared. Consequently, he claimed, the loan sharks from whom his friend had borrowed the money looked to the applicant for its repayment. He was unable to recall any details about the lenders, he did not know their names and had no documentation.  He claimed they came to his family’s home and smashed it up. He said his family have relocated and have not returned to their home town since. He said the family told him to leave the country because otherwise he would be attacked.

20. The Tribunal queried why the loan sharks had thought he was a suitable guarantor when he had a large loan himself and why they had simply not taken the possession of his friend’s house as repayment for the loan. The applicant claimed the house had reduced in value, the loan sharks did not know about the house and he did not feel he had the right to tell them about it. He then said he did tell them about the house but they could not track down his friend. The Tribunal found the applicant’s responses in this regard vague and unconvincing.

21. The Tribunal then asked the applicant why he had delayed almost two years in applying for the protection visa. It suggested to the applicant that it appeared he had just run out of options to remain in Australia and had chosen to apply for a protection visa, not because he feared harm from loan sharks in China, but to extend his stay in Australia. He responded that he did not dare return to China.

22. The Tribunal asked if he had repaid any of his loan from his relatives. He said he had repaid part of it but his wife kept the records. He said he thought still owed them 200,000 RMB. He said he and not repaid any of his friend’s debt but because of interest he thought the amount he owed would now be in the millions.

23. The Tribunal asked if he had any evidence such as police reports associated with the loan or the loan shark attempts to retrieve its debt. He claimed he reported the damage to his home but the police told him it was a civil dispute and did not act. He told the Tribunal that his arm and leg was broken. The Tribunal asked if he had any medical evidence or reports associated with this injury. He said he sought medical attention but did not have any evidence in this regard.

24. When asked if he had asked the authorities for assistance he responded that no-one in his home town cared about such things. The Tribunal observed that his family has successfully relocated and queried why he had not done so. He responded that he preferred finding a country where he could make money to repay his relatives. He maintained that the loan sharks would find him if he returned. The Tribunal noted that it had been over 7 years since the debt was incurred and it doubted that they would still be looking or having any interest in him. He said he was not sure. He confirmed neither he nor his family has had any contact with the loan sharks since his departure.  He claimed the loan shark problem was ‘severe’ in his hometown and that, according to his wife, they may be working with ‘political persons’ and police.

25. The Tribunal advised the applicant of country information indicating that relocation was common in China and that there had been a large successful government crackdown on loan sharks. It also suggested that he had nothing to fear because he would be able to get protection from the authorities.[1] Combined with the fact of his family’s successful relocation and an absence of any contact from the loan sharks, it considered he would have no need to fear harm. He acknowledged that this may be the case but if they did find him it would be a big issue because the size of the debt was now in the ‘millions’. He said he had not been making much money in Australia only enough for his children and the family’s living expenses. He said the issue had been stressful for him and he had heart problems and surgery. He said he would like to remain in Australia and be reunited with his family.    

    [1] Australia. Department of Foreign Affairs. DFAT Country Information Report: People’s Republic of China, 22 December 2021 (DFAT China report) [3.122]-[3.125], [5.1]-[5.55], [5.24].

    Credibility

26. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This, in turn, requires the Tribunal to assess whether the applicant’s claims are credible. In doing so, the Tribunal is conscious of the difficulties often faced by asylum seekers such as anxiety and nervousness and the length of time between the events they are required to describe and the hearing date. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[3]

    [2] SZLVZ v MIAC [2008] FCA 735 [28].

    [3] MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.

27. Nevertheless the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It is for the applicant to satisfy the Tribunal that all the statutory elements are established. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[4]

    [4] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70).

28. Overall the Tribunal found the applicant’s evidence regarding the unidentified loan sharks vague and unconvincing. It was not supported by any probative objective evidence and, given the applicant’s unexplained delay in making his application, considers it may have been fabricated to support his application. Further, in the absence of any persuasive evidence in this regard, it also considers it highly implausible that even a loan shark would require a person already in debt to the tune of 500,000 RMB to be guarantor for someone who already has collateral for the loan. For all these reasons, the Tribunal does not accept that the applicant’s claims regarding the loan sharks are credible. It does accept that the applicant owes his family money and he is in Australia to repay that debt and has remained because, as he claimed, there is still 200,000 RMB outstanding.

29. In this context, the Tribunal accepts :

    ·     The applicant is from China.

    ·     He borrowed money from relatives to fund a business venture however that venture failed.

    ·     In order to pay back his relatives he came to Australia to work so he could repay those relatives.

    ·     After the expiry of his visa on [date] November 2017 he remained in Australia unlawfully until he applied for a protection visa on 4 March 2019.

    ·     He is currently employed in Australia and has repaid some but not all of his loan to his relatives.

    Refugee assessment

30. Section 5H(1) of the Act provides that 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. As noted above, the applicant’s nationality is Malaysian and he is outside that country.

31. Section 5J of the Act provides that a person has a well-founded fear of persecution if:

    ·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·     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 above; and

    ·     the real chance of persecution relates to all areas of a receiving country.

32. ‘Persecution’ is not defined in the Act, however ss 5J(4)-(5) provide meaning. Specifically, a person will not meet the definition of a refugee unless the persecution involves: serious harm to the person; systematic and discriminatory conduct; and the essential and significant reason or reasons for the persecution is for reasons of race, religion, nationality, membership of a particular social group or political opinion.

33. 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. As noted above, 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.[5]

    [5] Chan v MIEA (1989) 169 CLR 379.

34. The applicant claims to fear harm in China because he owes money to loan sharks. While the Tribunal accepts that he owes money, for the above reasons, it does not accept that he was or is being pursued by loan sharks.

35. Even if the Tribunal accepts the applicant’s claims relating to a debt accrued in China and fears of being harmed by people if he returns to China, the evidence indicates that any threats or harm from his friend’s creditors and/or the loan shark and/or his family would arise from the applicant’s failure to repay the money owed to them. This is the essential and significant reason for the harm the applicant claims he will suffer, and is not one of the 5 reasons listed in s 5J(1) of the Act. As such, the Tribunal is not satisfied that the applicant has a ‘well-founded fear of persecution’ from loan sharks/his friend’s creditors and/or his family as required for the purposes of the definition of a ‘refugee’ contained in s 5H of the Act.

36. The Tribunal has also considered the applicant’s concerns regarding the effect of his debts on his physical health. The Tribunal accepts that the applicant has experienced a degree of stress and anxiety arising from his debts however, as noted above, the Tribunal does not accept that the essential and significant reason for any deterioration in the applicant’s health would be for one of the five reasons listed in s 5J(1)(a) of the Act but rather because of the debt he owes.

37. Therefore, in relation to any claim regarding the applicant’s’ health, the s 5J(1)(a) criteria are not met.

38. Consequently, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution and therefore he does not meet the definition of ‘refugee’ in s 5H of the Act. Accordingly, in relation to his claims, the applicant is not a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion in s 36(2)(a).

    Complementary protection

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 a protection 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 the applicant 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’).

2. ‘Significant harm’ for these purposes 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.

3. In this context, a ‘real risk’ in s 36(2)(aa) has been held to impose the same standard as the assessment of ‘real chance’ in the refugee criterion in s 36(2)(a).[6] A ‘real chance’ in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[7]

   [6] MIAC v SZQRB (2013) 210 FCR 505; Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1, as re-issued 29 February 2020; MZYXS v MIAC [2013] FMCA 13.

   [7] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559.

4. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

5. The Tribunal accepts that the applicant owes a debt in China that he was unable to repay and that the lenders (his relatives) require repayment. However the applicant has not claimed, and there is no evidence to suggest, that he is at any risk of them arbitrarily depriving him of his life; carrying out the death penalty on him, subject him to torture or to cruel or inhuman treatment or punishment or to degrading treatment or punishment. It follows that the Tribunal is not satisfied there are any grounds which establish that as a necessary and foreseeable consequence of the applicant being removed from Australia to a China, there is a real risk that he will suffer significant harm as defined from his relatives to whom he owes money.

6. Even if the Tribunal accepts the applicant’s claims regarding the loan sharks (which it does not), when considered with the fact that they have not contacted him or his family in the seven years since he has departed China, combined with the country information, to which the Tribunal attributes significant weight, that the government has undertaken large scale police operations against loan sharks and that ‘DFAT considers that victims of loan sharks have a plausible fear of violence but that overall the risk is low’[8], the Tribunal is not satisfied that there are significant grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. Furthermore, the Tribunal considers, based on the DFAT China report, that s 36(2B)(b) applies such that there is taken not to be a real risk that the applicant will suffer significant harm. That is, the Tribunal is satisfied that the authorities are willing and able to assist the applicant in any dealings with the loan sharks, and are willing and able to actively investigate and prosecute illegal money lenders such as those the applicant claims are pursuing him.

   [8] Ibid.

7. In addition, given the successful relocation of the applicant’s family from their house to another part of China, the Tribunal also considers that there is no reason, and none have been plausibly provided by the applicant, that he could not also successfully relocate. In this context the Tribunal consider that s 36(2B)(a) applies and there is taken not to be a real risk that he will suffer significant harm.

8. As noted above, the applicant also gave evidence at the hearing that his health had been affected by his debts. The Tribunal accepts that the applicant has experienced stress and anxiety arising from his debts, however, in the absence of any medical evidence, the Tribunal does not accept that the stress and anxiety experienced by the applicant is of such a severity as to constitute ‘significant harm’ as defined in s 36(2A) of the Act. There is no claim nor any persuasive evidence before the Tribunal that any deterioration in the applicant’s health if removed to China would amount to ‘significant harm’ because it would not be a result of any deliberate act or omission of any group or person done with the intention of causing them to suffer significant harm.[9]

   [9] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

9. Considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk he will suffer significant harm as defined in s 36(2A) of the Act. It follows that the criterion in s 36(2)(aa) is not met.

   CONCLUSION

10. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

11. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Also 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)(aa).

12. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Mary-Ann Cooper
    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.

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    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.

    …