1922914 (Refugee)

[2020] AATA 4676

1922914 (Refugee) [2020] AATA 4676 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1922914

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Anne Grant

DATE:10 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 10 September 2020 at 11:26am

CATCHWORDS

REFUGEE – protection visa – Thailand – retribution from moneylenders for money owed – protection money – threats from gangsters – damage to property – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 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 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 20 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Thailand, applied for the visa on 21 September 2017. With his application for review of the decision, the applicant provided a copy of the delegate’s decision to the Tribunal. The delegate refused to grant the visa on the basis that they were not satisfied that there was a real chance of persecution for one or more of the reasons in s.5J(1)(a) of the Act and so was not a refugee.   In considering the complementary protection provisions, the delegate found that protection measures were available to the applicant in Thailand such that there wold not be a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of him being returned to Thailand.   The delegate also concluded that there was not substantial grounds for believing that there is a real risk that the applicant faced ‘significant harm’ as defined in s.36(2A) in Thailand.   At the commencement of the hearing, I informed the applicant that it was noted that the delegate had not had the opportunity to take evidence from the applicant and had not made findings about all of the legislative criteria which had been outlined in my opening address.  Therefore I informed the applicant that all aspects of his claims (as I had just outlined) were in issue.  

3. I exercised the Tribunal’s discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. I determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. I confirmed that the applicant was alone and that the hearing was conducted in private.   An interpreter in the Thai and English languages assisted the hearing.  The telephone connection was good and I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

   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 (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 refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Thailand, there is a real risk that the applicant will suffer significant harm.

11. The applicant arrived in Australia on a Thai passport [in] August 2017 with a subclass 500 student visa valid for 4 and a half months.  He lodged his protection application on 22 September 2017.

12. The applicant’s written claims as contained on his application for protection were, in summary, that he came to Australia to be a student and to go back to Thailand in a position to get a better job and help his parents.  However, before he could complete that dream, gangsters had killed his parents and were now looking for him due to his parents not paying protection money.  He claimed that the gangsters would kill or harm him and could find him throughout Thailand if he returned as he was unable to pay the money demanded by the gangsters.  The police are corrupt and ‘in league’ with the gangsters and would not protect him. It is a personal matter and gangsterism, so the police won’t help.

13. At hearing, the applicant described how his wife came to Australia as a student and he followed her.  He thought he had mentioned his wife on his protection visa application.  I noted that he had not.[1]  He claimed that he was a dependent on her student visa.  I noted that he was a student himself.  The applicant appeared confused about the visa process.  He told me that his wife was working [in] Thailand and met customers who were well informed.  One of them told her that she might improve her job prospects by improving her English skills and that one of the places where she could do that, was Australia.  The applicant claimed that he and his wife did study in Australia, just a short term language skills course.  The applicant was entitled to work on his student visa but not enough to earn the money he needed, and he discussed this with a person who told him that if he applied for protection, he would be able to work without limitation on the hours of work.  So, he told that person his situation and the person completed the application. 

    [1] The applicant indicated at question 35 on the application for protection that he had ‘never married’.

14. The applicant said that before coming to Australia, there were problems in Thailand.  His parents do not own a business, but work on his [plantation] where he has also planted [other produce].  The applicant also worked for a [company] as a manager.  The applicant’s parents borrowed [amount] Baht to fund necessary agricultural supplies.  They couldn’t repay it, and so they went to another lender to repay the first loan and borrowed more.  In total, the applicant initially claimed they borrowed [amount] Baht and later stated that they borrowed [amount] Baht.  The lender wanted monthly repayments, but because their crop is farmed annually, they negotiated to pay a lump sum at the end of each year.  They were already having difficulty due to the [other] crops (which were not expected to yield for 4 – 7 years) and then, in bushfires between February and April 2017, half of the [crop] was destroyed.  The applicant said he couldn’t pay the moneylender and spoke to them to see what he could do.  They said that, because he couldn’t pay, they would increase the interest and give him an extension but there would be no further flexibility.  Whilst the applicant had also said that his parents borrowed the money, he described the debt as belonging to himself or ‘them’ as a family.

15. The applicant claimed that he was still working at the [company], and his wife was still working before coming to Australia, but they didn’t earn enough to meet the debt repayments.   His parents were running the farm.  So they were stretched and couldn’t pay what they needed.  They decided to use their savings to come to Australia to further his wife’s career prospects and so he could work whilst she studied. 

16. The applicant said that before he left Thailand, the moneylender had made threats to take the crop and land to satisfy the debt if they did not pay.  He tried going to the police, but they said there was nothing they could do without evidence.  Since he came to Australia, his parents said that the moneylender sent someone to the land and damaged some crop, and destroyed a small shed on the farm, saying that if they didn’t want worse, they would have to pay.  They have not physically harmed his parents (or the applicant) at any stage but he fears that if the debt is not repaid, they will resort to doing so.   He believes the person who wrote his application may have misunderstood what he was told.   The applicant said he would never claim that his parents had been murdered.  They are alive.

17. The applicant has been sending money back to Thailand to his parents to pay the debt.  He believes that he currently owes around [amount] Baht.  I noted that this sum seemed to be around the equivalent of [amount] AUD and the applicant agreed. 

18. I discussed with the applicant that he had lived in [location] his whole life and he confirmed that the reason he didn’t go to work in Bangkok was because of his [plantation].  Since he has been in Australia, his parents are looking after it.    I noted that his parents were capable of looking after the farm so it would apparently be possible for him to return to Thailand, live in Bangkok and earn money to send home, just as he has been doing here in Australia.  The applicant said it is hard to live in Bangkok, because of the high cost of living, the money earned is low and it would not be enough to pay back the debt.  He agreed he has some good business skills and work experience but claimed they would not be enough to get him a good job in Bangkok.   He claimed that if he goes back and doesn’t pay the money owed, that they would take his crop and he would have nothing left.  He also claimed that he might be assaulted and so may his family.

19. I discussed with the applicant that if the moneylenders harmed him, (or killed him) or his family, this would defeat their purpose as they would never get the money they were owed.  The applicant agreed but said that he doesn’t want to lose his life to be an example to other borrowers. 

20. I discussed with the applicant that he might be able to seek protection from police if they threaten or harm him on return.  He indicated that they may be reluctant to interfere with a debt problem.  By principal they should assist, but they may also be corrupted by the lender, who is ‘big within the community’.   

21. The applicant concluded by saying that he doesn’t want to stay in Australia permanently.  He wants to stay until he has paid the money back and then will return to Thailand. 

    Is the applicant a refugee?

22. According to Department of Foreign Affairs and Trade’s (DFAT) July 2020 Country Information Report on Thailand, ‘short term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt levels are very high.’

23. The applicant’s evidence about borrowing money is therefore consistent with the general country information.  I accept that the applicant has a debt owing in Thailand and for the purposes of this review, I have proceeded on the basis that he and his family still owe around [amount] Baht, and that he has been sending payments back to his family from Australia.   I accept that he has a plantation in Thailand which grows [produce].  I accept that the applicant has historically supplemented the income from the farm by working at a [company] and that he is married and his wife [worked].  I accept that due to factors apparently outside his control, (such as bushfire and weather events) he was unable to make the required payments on the loan and that he and his wife decided to travel to Australia to improve their English skills and consequently their employment options in Thailand.  The applicant also hoped to earn more in Australia to assist with repayment of the loan.

24. I note DFAT’s reference to enforcers known as black helmets who ‘may inflict injuries on recalcitrant borrowers as a means of ensuring the debt is repaid, though deaths are reportedly uncommon.’  Nonetheless, I do not accept, based on the applicant’s evidence, that he or his family has ever been physically assaulted or harmed by the money lenders or people associated with them.  His parents are alive and working the farm; and so I do not accept that they were murdered by the moneylenders or gangsters, or even that they have been harmed by such people.  I accept that the moneylenders have on one or two occasions, damaged property (including crops) at the farm as a show of force intended to intimidate the applicant’s family to ensure the money owed was repaid. As noted above, the applicant has been making repayments by sending money to his parents.

25. I find, based on the information and evidence before me, that the essential and significant reason for the persecution feared from the money lender is because of a personal debt dispute and not due to the applicant’s race, religion, nationality or political opinion. 

26. I have considered the provisions of s.5L and whether the applicant fears persecution because of his membership of any particular social group, such as ‘persons who have borrowed money from money lenders’ or ‘persons who have not repaid borrowed money’.  The only characteristic that the applicant shares with other members of such groups is the fact of having borrowed money from a moneylender which has not been fully repaid. I consider that having borrowed money from a money lender or not repaid borrowed money to a moneylender are not characteristics that are innate or immutable, fundamental to the applicant’s identity or conscience, and neither do those characteristics distinguish the group from other members of  society.  I am not satisfied that the either of those potential particular social groups satisfy the definition in s.5L.  In any event, I consider that even if the applicant could be classified as a member of such a particular social group, the essential and significant reason the for the persecution from the moneylender is not because of any particular social group that the applicant may be a part of, but because he personally has breached a financial agreement made and owes them money.     I find that the applicant does not fear being persecuted for any of the reasons in s.5J(1)(a).  I find that the applicant does not have a well-founded fear of persecution and he is not a refugee as described in s.5H.

27. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary Protection

28. The issue of money lenders (described as loan sharks) is discussed in Department of Foreign Affairs and Trade’s 10 July 2020 Country Information Report on Thailand and includes the following: 

    3.115In-country sources report that short-term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt levels are very high. Many individuals in these areas have no other way of gaining access to money for agriculture or small businesses than to borrow money from an informal moneylender, or ‘loan shark’. Loan periods in agricultural areas tend to be very short loans of a ‘tide-over’ nature – for example, an individual may borrow five hundred baht and be required to pay back six in a week’s time. Security for such a loan may be the individual’s bankbook or their ATM card and pin number, with the loaner withdrawing the requisite sum on the next payday. Security for longer-term loans may take the form of a motorcycle or land, with the borrower surrendering ownership immediately.

    3.116So-called ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid, rather than doing so directly. This can lead to debt moving around within communities. Black helmets or their local agents may inflict injuries upon recalcitrant borrowers as a means of ensuring the debt is repaid, although deaths are reportedly uncommon. There is reportedly a strong overlap between loan sharks and police in rural areas, and borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security. DFAT is not aware of any official moves to address the issue in any substantial way.

    3.117DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay or service the debt. Depending on the size of the loan or the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence. Borrowers are unlikely to be able to access protection from state authorities.

29. Taking into account the country information and my findings about the applicant owing  a debt to a money lender referred to above, I find that the applicant might plausibly suffer demands and pressure for repayment of the debt, and some harassment (such as repeat phone calls and visits demanding he pay up) and intimidation (in the form of damage to property) by the moneylender on return to Thailand if he does not make arrangements to or is unable to repay the debt.    

30. I therefore turn to consider whether the potential harms faced by the applicant amount to ‘significant harm’ as that term is defined in s.36(2A). Bearing in mind the country information which suggests that deaths from moneylenders are unusual, the moneylender’s conduct to date, (limited to some damage to property and words threatening worse,) and the efforts the applicant has made to repay the debt from Australia, I am not satisfied that the information and evidence before me establishes that there is a real risk that the applicant will be arbitrarily deprived of his life, that the death penalty will be carried out on him, or that he will be subjected to torture by the moneylender if he is returned to Thailand, now or in the reasonably foreseeable future. I do not accept as plausible his claims that he will be physically harmed or killed by the money lender.

1. The definition of ‘cruel or inhuman treatment or punishment’ in s.5 of the Act states that it means an act or omission by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person or where ‘pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission would reasonably be regarded as cruel or inhuman in nature.’   The definition in s.5 in relation to ‘degrading treatment or punishment’ states that it means an act that causes, and is intended to cause, extreme humiliation which is unreasonable. 

2. In the past, the debt collector has demanded payment and has damaged property on the applicant’s farm in an attempt to intimidate the applicant and his family to repay the debt.  The applicant’s evidence is (and I accept) that the moneylender has never physically harmed him or his family, despite what was written in his claims. Whilst they have tried to intimidate him (and his parents since he departed),  the information before me does not suggest that the money lender has  inflicted pain and suffering (or would in the foreseeable future) which could be described as severe pain or suffering, which would amount to cruel or inhuman treatment or punishment.  Nor does the information and evidence before me suggest that the moneylender has inflicted (or would in the foreseeable future) any act which causes or is intended to cause extreme humiliation on the applicant (or his family) which is unreasonable.   I have taken into account that he has been outside of the country since mid 2017 and had fallen even further behind on this debt over the supervening period and until he started making repayments from Australia.  The country information does not establish that all moneylenders resort to violence in Thailand if debts are not honoured, merely that it ‘may’ occur; and I am of the view that the past and demonstrated conduct of an individual moneylender must be considered in assessing the level of harm posed by the risk to an applicant in the future if he or she is returned to their receiving country. 

3. I have taken into account the applicant’s evidence of previously negotiating with the moneylender about repayment arrangements, and that he came to Australia to improve job prospects for his wife and to hopefully earn a higher income and not because of a fear of harm from the moneylender.  I have also considered that the applicant has made some additional repayments toward the debt from Australia, which I consider would be taken as a demonstration of the applicant’s intention to honour his debt and would decrease further any risk that the moneylender would take extreme action (amounting to causing him or his family significant harm) on his return.   On the information and evidence before me, I do not accept that the moneylender’s previous conduct establishes that they have a propensity to or that there is a real risk that they will undertake conduct or acts which would reasonably be characterised as amounting to the intentional infliction of severe pain or suffering (physical or mental)  or of pain or suffering which could be regarded as or cruel or inhuman in nature. I also do not accept that there is a real risk that the moneylender will commit acts or omissions which cause the applicant extreme humiliation which is unreasonable if he is returned to Thailand.    

4. In all the circumstances, I am not satisfied that there is a real risk that the applicant will suffer significant harm from the money lender if he is returned to Thailand (whether or not he makes arrangements to repay the debt).  He may face demands for payment and to honour the debt arrangement, seizure of his property in settlement of the debt or the threat of same;  but I am not satisfied that facing such actions by the moneylender would amount to causing the applicant significant harm.

5. The information and evidence before me does not raise any other reason why the applicant would suffer harm on return to Thailand (significant or otherwise) apart from his fear of the moneylender. 

6. I conclude, based on the information and evidence before me, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Thailand, there is a real risk that he will suffer significant harm.  I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. There is no suggestion on the information and evidence before me 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

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

   Anne Grant
   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.

   …

   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.

   …