1921575 (Refugee)
[2025] ARTA 732
•3 March 2025
1921575 (REFUGEE) [2025] ARTA 732 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1921575
Tribunal:General Member A Hirsch
Date:3 March 2025
Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 03 March 2025 at 12:33pm
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – victim of loan shark – physical assault – death threats – threats of forced drug trafficking – state protection – internal relocation – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZLVZ v MIAC [2008] FCA 1816Any 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 Home Affairs on 2 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Thailand, applied for the visa on 26 June 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 21 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
BACKGROUND
The applicant claims to be a victim of a loan shark due to loans her, her mother and father incurred from a loan shark. She claims that the loan shark has threatened to harm her if she does not repay these loans.
Evidence before the Department consisted only of the applicant’s protection visa application form and identity documents. The applicant did not provide any further evidence to the Tribunal before the hearing but provided additional evidence one week after the hearing. These documents are discussed below.
Evidence before the Department
Evidence before the Department consisted only of the applicant’s protection visa application form and identity documents. In her protection visa application, the applicant claims fear of harm on the basis of the following information:
·The applicant used to own her own business, however, due to unfortunately events, she decided to take out a loan from some community lenders.
·After marking payments on time, the lenders raised the interest rates.
·They tried to force her to do illegal activities for them to repay the loan.
·When she refused, they started to threaten those around her and entered her business and destroyer her property. They threatened to physically hurt her.
·She was scared for her life and those around her so she decided to flee to Australia.
·If she returns, she fears that she will be forced to pay back her money or be tortured.
·She has received death threats from the lenders and she has been physically and mentally abused.
·Her family could not help her and advised her to leave the job.
·Her boss has a very good network of friends and he would have found her if she moved to another part of the country.
·She cannot get help from the authorities because they are corrupt and are most likely bought off by the gang.
The applicant was not invited to an interview before the Department.
The delegate refused to grant a protection to the applicant because they were not satisfied the applicant is a person in respect of whom Australia owes protection obligations. The refused the applicant’s visa application on 2 August 2019.
Evidence before the Tribunal
On 5 August 2019, the applicant applied to the AAT for review of the Department’s decision.
On 8 April 2024, the applicant was invited to complete a pre-hearing form. The applicant returned the pre hearing form on 1 May 2024 with the following claims for protection (copied verbatim):
·I left my homeland because my life in trouble,and had experienced a tough time due to years of struggling.
·1. I loaned money from community lenders and she was paying it off.
·2. The lenders decided to raise the interest rate which the applicant was unable to afford.
·3. I could not meet the new payment and the lenders tried to force me to do illegal things. I refused and they started to threaten people around me, destroyed my property and attacked me.
·4. I was scared for her life and decided to leave the country and come to Australia.
·5. I have received death threats.
·6. My family was unable to assist me and advised me to leave my employment.
·7. Others in my community do not respect women and so the applicant did not receive assistance from them.
·8. does not believe the authorities can assist me as they are corrupt and may be bought off by the gang.
·9. I claim that the lenders have a large network of connections within Thailand.
The applicant appeared before the Tribunal on 21 February 2025 to give evidence and present arguments.
On 1 March 2025, the applicant provided two further documents to the Tribunal:
·A handwritten letter purporting to be from [name], the applicant’s mother, confirming the details of the loans borrowed from loan sharks and the threats from loan sharks. A certified translation of the letter was provided.
·A document which appears to be a handwritten ledger of payments made from 2005 to 2025. The document is in Thai and a certified translation has not been provided. The document appears to show that approximately TBH [amount] was paid each month.
I have considered all the evidence outlined above in reaching my decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s background and claims for protection
The applicant was born in Bangkok, Thailand in [specified year]. She is an only child and grew up in Bangkok. Her father was [an occupation 1], and her mother was self-employed. She completed school and went on to do a [qualification] in [occupation 1] at the age of about [age] years old.
The applicant started her own business selling [products] outside of a large department store in Bangkok. She later worked in an administrative role for a [company].
The applicant claims that her and her mother first borrowed money from a loan shark around 2004. The first loan was THB [amount] to pay for the applicant’s studies in [occupation 1].
The applicant claims that her mother also borrowed approximately THB [amount] for her own business between 2005 and 2010.
The applicant claims that the loan shark was a neighbour in the local community in Bangkok and known to them. She claims that the interest rate was about 10-15% but she does not recall exactly. She does not have a written agreement as it was made verbally. She also claimed that her grandmothers house, where she and her parents were also living, was used an collateral for the loans, however, she does not have any evidence of this. The applicant claims that she could not borrow money from a bank because her salary was not sufficient for the loan.
The applicant claims that her and her mother did not have any difficulty paying their loans, but she is not sure how much more she owes exactly on these loans. She claims that has paid back approximately TBH[amount].
The applicant claims that her problems with the loan shark started when her father passed away [in] July 2014. After his death, she found out that he owed TBH[amount] to the same loan shark for unpaid gambling debts. The loan shark started to harass the applicant and her mother to repay these debts.
A handwritten letter in Thai, with a certified translation into English, has been provided to the Tribunal. The letter corroborates these debts.
The applicant claims that the loan shark threatened her if she did not repay her father’s debts. She claims that the loan shark first said that he will damage her property. She also claims that the loan shark had told her that if she cannot pay back to loan, he will force her to become a drug trafficker for him in order to pay her debts.
The applicant also claimed that the loan shark slapped her and strangled her and threatened to further physically harm her. She claims that she did not go to a doctor after being assaulted.
The applicant claims that she reported this assault to the police. The police called the loan shark to come to the police station and pay a fine. She claims that the person paid the find and then said to her that he doesn’t mind paying the fine. I asked the applicant if she had a copy of the police report and she said she didn’t. I asked if she can get a copy of the police report and she said that she will try to ask her mother. However, at the time of this decision, the applicant has not provided a copy of the police report.
The applicant left Thailand and come to Australia [in] May 2016. She has been working in Australia, [in two specified businesses]. She claims that she did not apply for a protection visa until 26 June 2018 because she did not know that such a visa existed until a friend told her.
The applicant claims that she continues to pay off some of the loan while living in Australia. She claims that she sends her mother money via [a money transfer], and that her mother gives the loan shark cash. A handwritten ledger provided by the applicant appears to show repayments of about TBH [amount] per month. However, a certified translation has not been provided and it is not clear exactly what these payments are for.
Claims for protection
The applicant claims that if she returns to Thailand she will face harm from the loan shark in the form of physically harassment, torture/inhuman treatment and being forced into drug trafficking.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case are as follows:
·Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s identity and country of reference
The applicant claims to be a citizen of Thailand. The applicant provided a copy of her passport to the Department. The Department accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the application for protection.
The Tribunal accepts that the applicant is a citizen of Thailand which is also her receiving country for the purposes of refugee and complementary protection assessments.
Findings of fact
The applicant provided only a few documents to substantiate her claims, including a handwritten letter purporting to be from her mother, and a hand-written ledger which appears to show monthly payments of approximately TBH [amount] each month from 2005 to 2025.
While the applicant did not provide all relevant documents to substantiate her claims, I accept that that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims.[1] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.[2]
[1] SZLVZ v MIAC [2008] FCA 1816 at [25].
[2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
The applicant’s oral evidence was reasonably consistent with her initial protection visa application. She explained that a friend of a friend who had better English had assisted her in completing the application. I accept that any inconsistencies between her oral evidence and her initial protection visa application are due to the assistance of this person.
The applicant’s oral evidence at the hearing was reasonably consistent but lacked specificity and detail. For example, she could not recall precise dates when the loan was taken out, or precise amounts of the terms of the loan. She was also somewhat inconsistent as to whether her grandmother’s house was used a collateral for the loans.
While I have some doubts regarding the credibility of these claims, for the purposes of the decision I have decided to give the applicant the benefit of the doubt. Based on the evidence before me, I make the following findings of fact:
·The applicant borrowed approximately TBH[amount] from a loan shark in 2004 for her studies.
·The applicant’s mother borrowed approximately TBH[amount] from the same loan shark between 2005 and 2010.
·The applicant and her mother were able to continue the repayments on these loans and did not experience any harm from the loan shark when making these repayments.
·The applicant’s father passed away [in] July 2014. After his death, the same loan shark told the applicant that her father owed TBH[amount] due to unpaid gambling debts.
·The applicant was unable to pay the debt her father owed, and the loan shark threatened to physically harm the applicant. The loan shark also slapped and strangled the applicant, and she complained to the police. However, the police action did not deter the loan shark. The loan shark has threatened the applicant that he will force her to become a drug trafficker if she does not repay the loans.
I will now turn to consider whether the applicant is a person in respect of whom Australia owes protection.
Does the applicant satisfy the refugee criterion for protection?
Based on the evidence before me, I am satisfied that there is a real chance applicant would face harm in the reasonably foreseeable future if returned to her home area of Bangkok, Thailand.
I find that this harm is serious, as set out in s 5J(5), which includes physically harassment and ill-treatment from the loan shark if the applicant fails to repay her father’s debts.
However, as I put to the applicant, I am not satisfied that the harm the applicant would face is for an essential and significant reason as required by s 5J(4)(a). If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). The harm the applicant fears is because she is being personally pursued for her father’s gambling debts by a loan shark, not because of any of the five reasons set out above. As such, I am not satisfied that the applicant fears harm for an essential and significant reason as required by s 5J(4)(a).
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
As above, I find that there is a real chance of harm to the applicant from [the loan shark]. In MIAC v SZQRB,[3] the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
[3] [2013] FCAFC 33.
I am satisfied that the harm the applicant fears from the loan shark amounts to significant harm. ‘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.
I am satisfied that the harm feared from the loan shark would constitute cruel or inhuman treatment.
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country.[4]
[4] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
I have considered whether it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk of significant harm, such as Chang Mai. I discussed the possibility of relocating to Chang Mai with the applicant. As I put to the applicant, I do not find that the loan shark would be able to find the applicant if she moved to another city in Thailand, such as Chang Mai. The loan shark is based in the same neighbourhood in Bangkok as the applicant’s mother, where the applicant also lived. The loan shark knows where the applicant and her mother live. However, if the applicant was to move to another city, such as Chang Mai, I am satisfied that the loan shark would not be able to find the applicant. This is further strengthened by the fact that Thailand has a population of over 67 million people, as I put to the applicant.
When I put this to the applicant, she said that it would be difficult to move somewhere else because her house is nearby to the loan shark. She explained that because of her financial difficulties she won’t be able to afford to relocate elsewhere in Thailand. In response, I put to the applicant that the Australian Government provides a relocation allowance for asylum seekers in Australia who return home.[5]
[5] See the Department of Home Affairs, Return and Reintegration Assistance Program (RRAP), >
Given the applicant’s personal circumstances, including her high level of education ([qualification] [in occupation 1]) and her work experience ([occupation 1], administration and running her own business), I find that it is reasonable for the applicant to relocate elsewhere in Thailand, such as Chang Mai. I find that she will be able to find suitable work to support herself and that she will not face any harm from the loan shark. While the applicant may face some costs to relocate, she can seek assistance from the Department of Home Affairs’ Return and Reintegration Assistance Program, which provides US$5,100 as cash or in-kind per person to return to any country.
As such, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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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