1921695 (Refugee) - [2024] ARTA 562

1921695 (Refugee) [2024] ARTA 562 (23 October 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 1921695
Tribunal:General Member P Wearne
Date:23 October 2024

Decision:The Tribunal affirms the decision under review.

Statement made on 23 October 2024 at 9:35am
CATCHWORDS
REFUGEE – Protection Visa – China – harm from the creditors or people associated with the creditors – inconsistent evidence – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 July 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 China, applied for the visa on 4 November 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a refugee as defined by s 5H(1) of the Act, or that there are substantial reasons for believing that there is a real risk he will suffer significant harm as defined in s 36(2)(aa).
The applicant appeared before the Tribunal on 18 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin language.
The issues in this case are whether there is a real chance, if the applicant returns to China, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether 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 that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A 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.
Independent information
Shadow lending
Unregulated ‘shadow lenders’, ‘loan sharks’, ‘shadow banks’ or ‘underground banks’ make up a large part of China’s credit market.[1] A Forbes article reported in 2017 that a microfinance company provided loans of between RMB500–10,000 for up to 2 weeks to borrowers with no collateral and no credit score. The entire process is automated with 3 steps – quick online application, instant decision and cash transfer.[2] Another 2017 article refers to interest rates by online microlenders of up to 50–60% for cash loans, sometimes rising to 500–600% or even 1000%.[3]
[1] ‘China ‘granny gang’ jailed in lending clampdown’, Financial Times, The (FT.com) - United Kingdom, 11 August 2017; ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 34, October 2014.
[2] ‘A Chinese Company That Lends To Borrowers With No Credit Scores’, Forbes.com, 22 March 2017- accessed 18 October 2024 <A%20Chinese%20Company%20That%20Lends%20To%20Borrowers%20With%20No%20Credit%20Scores’,%20Forbes.com,%2022%20March%202017>
[3] ‘Crackdown looms for China’s online loan sharks’, Asia Times, 14 November 2017 – accessed 18 October 2024 <>
Although shadow banking operated with the apparent implicit approval of the Chinese authorities,[4] a government crackdown on shadow banking in China has taken place under President Xi Jinping.[5] Chinese authorities cracked down on operations of shadow banks and lenders and police arrested thousands of people in a range of cases, involving funds totalling hundreds of billions of dollars.[6]
[4] ‘Shadow Banking, Chinese Style’, Economic Affairs, Wiley, 1 October 2014, pp. 1–4; ‘China mounts massive crackdown on sprawling underground bank network’, South China Morning Post, 17 August 2016; ‘China jails more than 1,400 in lending crackdown’, Deutsche Welle, 26 April 2013.
[5] ‘Xi Jinping’s war on shadow banking spills over, rocking China’s wider financial world’, South China Morning Post, 10 February 2018; ‘With Jail Sentences and Corporate Flameouts, China Is Tackling Its Debt’, New York Times, The, 10 May 2018.
[6] ‘China bans private lending businesses without approval’, Reuters, 04 May 2018; ‘Loan Shark Linked to Debtor’s Death Gets 25 Years’, Caixin Media, 11 May 2018; ‘Chinese police probe 20‑billion-yuan underground bank trade’, Xinhua (net) also News.cn also China View, 23 November 2017.
The Department of Foreign Affairs and Trade Country Information Report China (the DFAT Report) states that usury has a long history there and the demand for private loans is strong. In modern times, loan sharks might be known by different names such as ‘private finance companies’ and are more likely to be active in poorer, rural areas.
The DFAT report refers to some protection being available to debtors:
‘Usurious loans’ are prohibited under China’s Civil Code, which came into force 1 January 2021, but the interest rate considered usurious is not defined in that legislation. The courts have capped interest rates at four times the official rate. A number of highly publicised violent crimes related to debt collection were discussed in the media in 2017 with police making arrests and people being convicted for serious crimes such as assault and sexual assault related to debt collection. DFAT is also aware of a 2018-20 crackdown by authorities on usury, which was highly public and which saw the prosecution of a large number of people.[7]
Loan shark operations may be large-scale, but police operations are also large scale. In 2019, 253 suspects were arrested in a campaign against loan sharks in Lanzhou. The gang had over 1,300 mobile phone applications and websites to facilitate usurious moneylending. The Chinese Government claims that 41,000 suspects have been detained in 2021, but it is not clear if this is only during the recent crackdown, or if it includes previous arrests.[8]
DFAT assesses that loan sharks are active in China, but assesses that state protection is available. DFAT considers that victims of loan sharks have a plausible fear of violence but that overall the risk is low.[9]
[7] DFAT Country Information Report China December 2021, 39.123.
[8] DFAT Country Information Report China December 2021, 39.124.
[9] DFAT Country Information Report China December 2021, 39.125.
Regarding state protection, the DFAT report states as follows:
The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. These agencies often collectively and individually called the local ‘Public Security Bureau’ (PSB). The People’s Armed Police (PAP) is a paramilitary force organised under the People’s Liberation Army (PLA) responsible for internal security and stability (such as combatting riots and terrorism, but also domestic monitoring of perceived security threats), maritime security and support of the PLA. The PAP is also active in Xinjiang. Regular police generally do not carry firearms and gun crime is rare in China.
Police maintain public order and social stability, which are overriding priorities for the CCP. Loyalty to the Party is important among police ranks, as it is in all government positions. Police, including at lower levels, can be investigated for corruption (which is a threat to stability and Party legitimacy) and loyalty offences.
Police carry out day-to-day crime fighting activities and investigate crimes. Day-to-day crime rates are low in China but where crime does occur, DFAT understands that police investigate thoroughly and prosecute alleged criminals.[10]
[10] DFAT Country Information Report China December 2021, 5.1–5.3.
CLAIMS AND EVIDENCE
The protection application indicates the applicant is a [age]-year-old married man born in Shandong. He departed China on [date] September 2017 on a Chinese passport valid to 2020.[11] He indicates that his wife, son and parents reside in China. He declares that he travelled to [Country 1] for work and a copied page of his passport confirms travel to [Country 1] in 2010. He provides 2 long-term residential addresses and details of employment in China. He indicates that he had 12 years of education.
[11] The applicant brought a reissued Chinese passport to the hearing which is valid until 2032.
The applicant attached a statement with his application. A summary follows:
·The applicant is a Chinese national. In March 2016, he opened a [Product 1] shop. At the urging of his friend, he borrowed money in February 2016 from a private loan company called [name].
·He thought at that time that as many people were wanting to purchase [Product 1], he could easily make a profit and repay the loan. He borrowed RMB100,000 believing that he would be able to repay it by the end of 2016.
·At that time, many people preferred to purchase goods online as it was cheaper than buying from ordinary shops. Due to this the applicant was not able to gain much profit from his shop.
·While he gained less than RMB50,000 from his [business], he had to pay off RMB200,000 for his loan. In December 2016, the usurer came to his shop and asked for the payment of the loan. He gave the usurer RMB4,500 and told him that he did not have much money. The usurer demanded that he pay his loan by the 31 December, or he would be killed. The applicant thought that it was just a threat. However, in the middle of December the door of his house was splashed with the word ‘death’. The applicant became scared. He borrowed money from his family and friends to repay his loan from the usurer but the amount he obtained was not enough.
·On 31 December 2016, the usurer came again. The applicant gave the usurer RMB120,000 and told him that he could get more money. The usurer demanded that the applicant pay the rest of his debt before April 2017. The applicant agreed. However, in April 2017, he was told that the money owing plus interest was RMB100,000. They had doubled the interest. The applicant argued with the usurer, but he was almost beaten to death. He called the police who told him as it was an economic dispute so they could not help the applicant. He was advised to just pay off the loan.
·The applicant had no money to pay the unreasonable debt. His house was broken into and his wife was threatened so he asked her to move into her parents’ home. Fearing for his safety he left for Australia in September 2017. He fears that the usurer will have him killed if he returns to China as he was unable to repay his debt.
·He tried to relocate to his mother’s house in the rural area of his hometown, but they found him and threatened his parents and maltreated him. The triad group will be able to find him.
During the hearing the applicant gave evidence about his family and background in China and the reasons he made this application, and I questioned him about his claims.
The applicant said that shortly after arriving in Australia, he was referred to an unknown ‘paralegal’ who prepared his protection application. The applicant provided his personal information and his written claims to this person via [social media].
The applicant gave me the address of his parents and confirmed that he also had resided in this family home in [a] City between 1994 and 2017.[12] He confirmed that his wife and son continue to reside there with his parents.
[12] Same address as the applicant had provided for himself and his wife in the application.
The applicant contacts his wife every 2 to 3 days. He sends money to her once a month which she also uses to support his parents. His [age]-year-old son is about to commence a university [course].
His only other sibling is a sister who lives in [a] District. He contacts her every 2 to 4 weeks.
The applicant detailed his extensive employment in China: [details deleted]. He also worked in [Country 1] for 3 years. When asked why he had done this he explained that he was offered a position there where he could earn more money than he was earning in China. The job was arranged during his employment as a [occupation]. He said that he didn’t return to China during this 3‑year period as he would have not been able to maintain the high salary he was earning.
The applicant has worked in Australia in a range of [positions]. He does not know the names of his bosses for these jobs as they were referred to by nicknames and he was paid cash. Since 2019 he has worked as a [occupation] getting jobs through an app.[13] It was difficult for him during the COVID-19 restrictions, but the applicant managed to keep working and make some money.
[13] [Name] – an app for Chinese [Australians].
The applicant has moved residences in Sydney 4 or 5 times since arriving here in 2017. He lives in a house by himself in [a suburb]. He cannot stay in a unit as he has a lot of [equipment].
I asked the applicant about his claims for protection. He said that he had trouble with organised gangs in China, which started when he had some money issues. He said that he had been stabbed on his finger and on his stomach and another finger had been twisted. He confirmed that he was talking about the attack claimed in his written statement. I asked him if he had gone to hospital for treatment of these injuries. He said that he had, however he didn’t have a hospital report or record as it happened ‘too long ago’.
I noted that his statement had referred to him almost being beaten to death. I asked him whether he had been beaten or stabbed. He said that he had been stabbed.
I asked the applicant about how his money issues started. He said that before he opened his shop, he borrowed the amount of RMB150,000. When I pointed out that his protection application had referred to him borrowing the amount of RMB100,000, he said that he had borrowed an extra amount of RMB50,000 later. I noted that this later extra amount had not been mentioned in his claims for protection. The applicant said he had borrowed the amount of RMB100,000–150,000.
The applicant said that he had borrowed the RMB50,000 and paid it back less than a week later. I noted that his statement stated that the amount he had paid back was RMB45,000. I observed that he was providing inconsistent evidence about the loan amount.
I asked the applicant what interest rate applied to the loans twice. He did not provide the interest rate. He told me he opened with a loan of RMB100,000 and had to pay back RMB130,000 at the end of the year. He added that he had only received the amount of RMB90,000 as RMB10,000 had been paid in the commission. He was expected to pay back RMB130,000. In regard to the loan of RMB50,000 he said that he paid back the amount of RMB55,000. I noted that according to his protection application he had paid off a total of RMB165,000 (RMB45,000 and RMB120,000) at the end of 2016. I told him I was finding his evidence about the loan amounts and repayments inconsistent.
The applicant then said that he borrowed money from several people. He said that there were probably 3 to 4 of them he borrowed from. There were different loans.
I noted that this was a different scenario from his protection statement which had referred to 1 loan company. The applicant said that he had thought it would be better that he simplified his story for the protection application. This is why his evidence differed.
I noted the applicant had referred to borrowing money from his friends and family in his statement. The applicant agreed that he had done this. He said that he had gradually paid them all off since coming to Australia. But when I asked how much the applicant currently owed, he said that the only amount owing was RMB60,000 to his sister.
The applicant confirmed that no further amount was owed to anyone else, including the loan company.
I asked why, given all the money had been repaid to non-family creditors, would he fear to return to China. The applicant said that he had been warned that he would be attacked. There was personal hatred.
I explained I had difficulty accepting this claim or that he genuinely feared harm in China for this reason. It is over 7 years since he left China. The money had been paid back. The applicant said the loan gangsters were not rational. If you look at them in the street they will attack you. They know his home address in China.
I asked what evidence he had of any interest in harming him, noting that he had not claimed family members had received any threats since he left China. The applicant said that it was personal. It was just him. I told the applicant that I had difficulty accepting his claim was credible.

I noted that in discussing his employment in China earlier in the hearing, he hadn’t mentioned opening a [shop], despite me prompting him on several occasions. The applicant said that he had included opening [the] shop in the protection application and thought it was obvious. I explained that I had pressed him for details of further employment activity earlier in the hearing. He said that he had possibly made a mistake.
I noted that he had made a claim in his written statement that he had tried to relocate to his mother’s house in the rural area of his hometown, but he had been found there with his parents. I noted the applicant’s earlier evidence had been that he lived with his parents in the family home from 1994–2017, so his written claim appeared to be inconsistent. The applicant said that his parents had another residence in his hometown as well.
I noted that he had also claimed that his wife had moved into her parents’ home when he had received threats from the creditor. However, his evidence earlier in the hearing indicated that she had remained at the same family home with the applicant and his parents and that she continued to live there. The applicant said that his wife moved into her parents’ place in the same district for short time, then she returned to his family home.
I referred to independent information[14] indicating a changing attitude from authorities in regard to victims of unregulated loans. I noted that DFAT had assessed that while loan sharks are active in China there is state protection available and that while victims may have a plausible fear of violence the overall risk was low. The applicant said that this report was superficial. In smaller regions the creditors were linked to the police and there was police corruption, so he did not trust the police.
[14] See Independent Information, above, from para 12.
I noted that the applicant had lived in [Country 1] for 3 years. He had moved to Australia where has remained for the past 7 years. He has moved addresses in Sydney 4–5 times. He has had a range of employment skills and a dedicated work pattern. Given this, I considered that he would be able to relocate to another area of China to avoid the harm from the creditors or people associated with the creditors. The applicant said that he was not very smart. He was not skilful with his hands; he would not be able to support his wife, his son and his parents. His son is about to start a university course. His parents aren’t healthy and they are [approximate ages]. He would not be able to earn money to support them in China. The applicant said that it was his duty to financially provide for his family. I acknowledged that he may not be able to earn as much in China as he has been earning in the last 7 years he has been in Australia. Although he may have an initial difficulty securing employment, his work history indicated that he would find employment which would be enough to survive on and support his family.
I asked the applicant if there was anything further that he wished to say. He said that he wanted to stay in Australia for a little longer so that he could pay the gangster and earn enough to support his son, wife and parents. I asked for clarification about why he would pay the gangster given he had repaid all the debts apart from his sister’s. The applicant said that there was one staff member of the creditor who wanted to hurt him. If he paid this man money he would not be hurt. I referred to independent information which indicated that state protection was available to him.
On the basis of the independent information that I have referred to, I accept that unregulated or shadow lenders operate in China. However, the applicant was unable to provide any convincing or consistent detail about the amount of money borrowed, the interest rate applied and what amounts were repaid while he was in China. He also gave inconsistent evidence about the claimed injuries he received from his creditors or people acting on their behalf. Because of this lack of convincing detail and the inconsistent evidence to support his claims, I am not satisfied that he borrowed money from the loan company or any other non‑family member or friend regarding a [shop]. Accordingly, I am not satisfied that the loan company, other creditors, staff members or anyone acting on their behalf harassed the applicant or his family, or that they demanded repayment from the applicant, harmed him or would pursue or harm him upon his return.
For the same reasons that I don’t accept the applicant’s claim that he borrowed money from a loan company or any other non-family or friend creditor, I also reject derivative claims that the loan company, other creditors or anyone acting on their behalf harassed the applicant’s wife or parents. I don’t accept that the door of his home was splashed with red paint and ‘death’ was written on the door. Even though the applicant may have an injury to his fingers and a scar on his stomach, I don’t accept that these injuries were caused by, or the applicant was beaten or stabbed by, someone from the loan company or any other creditor or someone acting on their behalf. It follows that I don’t accept that the applicant reported the incident to the police. I don’t accept that the applicant’s home was broken into and his wife threatened or that he requested her to move into her parents’ home. I don’t accept that the applicant moved to his parents’ rural home or that the loan company staff members or any other creditors found the applicant there and maltreated the applicant more and threatened his parents. I don’t accept that there is a personal issue or hatred to the applicant from the loan company staff member or any other creditor or staff member, or that the applicant will be threatened or harmed by a triad group member, a staff member of the loan office or any other creditor on his return to China.
While I accept that the applicant would earn a lower wage there than he currently does working in Australia, I find that given his dedicated work pattern and commitment to provide for his family, the applicant would be able to find suitable employment in China based on his education, his past work experience and skills. I find that the applicant would be able to support himself and his family and would not suffer significant economic hardship that would threaten his capacity to subsist or anything that would otherwise amount to serious harm or significant harm.
Given all the above, I am not satisfied the applicant faces a real chance of serious harm from the loan company, any other creditor or their staff or anyone else for reasons of the loans or any other reason. Given these findings and this conclusion it is unnecessary to address the issue of whether the harm feared by the applicant is for a specified reason set out in s 5J(1)(a).
It follows that I am not satisfied the applicant meets the requirements for recognition as a refugee as defined by s 5H of the Act and I am not satisfied that he 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), I have also considered the alternative criterion in s 36(2)(aa). Having rejected the applicant’s claims that he borrowed money from the loan company or any other non-family member or friend, I am not satisfied that he is at risk of any adverse attention or interest from loan company staff members or any other creditor upon return to China. I have already found that the applicant would be able to support himself and his family and would not suffer significant economic hardship that would threaten his capacity to subsist or anything that would otherwise amount to significant harm. I find there is no basis, on the evidence, to conclude that the applicant faces a real risk of arbitrary deprivation of his life; or that the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to China. I am 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date of hearing:  18 October 2024
Representative of Applicant:             n/a
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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