1924676 (Refugee) - [2021] AATA 2128

1924676 (Refugee) [2021] AATA 2128 (5 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1924676
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Sheridan Lee
DATE:5 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 5 May 2021 at 10:59 am
CATCHWORDS
REFUGEE – protection visa – Malaysia – political activity – beaten and threatened due to dealings with politician – fear of economic harm – debt to loan shark – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MZAKQ v MIBP [2016] FCCA 1186
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLPN v MIAC [2010] FCA 202
SZLVZ v MIAC [2008] FCA 1816
SZNRZ v MIAC [2010] FCA 107
SZQMB v MIAC [2012] FMCA 24
SZRGE v MIAC [2013] FMCA 18
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 September 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a [age]-year-old female from Malaysia. She applied for the visa on 1 July 2018 on the basis that she would be persecuted for political activity in Malaysia. The delegate refused to grant the visa, finding that protection would be available to the applicant from the state.
The Tribunal viewed a copy of the applicant’s Malaysian passport. I accept that the applicant is a citizen of Malaysia and will assess the applicant’s claims against Malaysia as her country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
The applicant appeared before the Tribunal on 2 November 2020 via telephone to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal 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. The Tribunal 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments and the applicant did not raise any concerns in respect of the conduct of the hearing
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 (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).
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, I have 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
The applicant arrived in Australia [in] April 2018 on a Subclass 601 Electronic Travel Authority visa. She applied for protection on 1 July 2018. The applicant identifies as Buddhist and of Chinese ethnicity, however noted at the Tribunal hearing that she had not been practicing Buddhism in Australia.
The application for protection form outlined that Malaysian politicians use racial differences in Malaysia to divert attention from the actual problems that exist in Malaysia. The applicant claimed to have received money from [a politician, Mr A,] to create havoc at political speeches, rallies, or meetings. On one occasion the applicant was ‘busted’ and beaten up. Since that time, the applicant claims to have been harassed and threatened. The applicant alleged that she received a phone call threatening to kill her if she disclosed any information about [Mr A].
On 2 September 2019 a delegate of the Minister for Immigration refused the application for protection. The applicant applied to the Tribunal for merits review of that decision. A copy of the delegate’s decision was provided to the Tribunal on review.
At the Tribunal hearing on 2 November 2020, the applicant gave evidence that prior to departing Malaysia she lived with her parents in Sarawak. She has one brother who continues to live in Sarawak. The applicant completed high school and was employed [as an Occupation 1]. In Australia the applicant works on a construction site.
The applicant stated that she personally completed the application for protection with some translating assistance from a friend [named] who is a migration agent.
When asked why she feared returning to Malaysia, the applicant explained that her father passed away approximately four years ago and her family is poor. The applicant stated that nothing specific would happen to her if she returned to Malaysia, but she hoped her mother’s health was good.
At the start of the hearing, I had explained the purpose and criteria for the grant of a protection visa. At this time, I clarified if the applicant had understood the information and she confirmed that she had. I then asked her to explain how the criteria applied to her. The applicant alleged that the criteria applied to her, but she didn’t know how.
I questioned what harm the applicant would face. In response, the applicant explained that her family had no money and might be belittled by relatives. The family may not be in a position to afford rent or food. The applicant claimed to be paying her mother’s rent. The applicant’s brother also assists with financial contributions and is employed [as an Occupation 2].
The applicant accepted that she could find another job in Malaysia but felt the salary would not be high. The applicant gave evidence that she has no savings and would need to cover the cost of rent and utilities.
I highlighted that the applicant’s evidence at the hearing was very different to the information outlined in her application for protection. In response, the applicant outlined that when she filled in the form, a friend helped her. She didn’t know much, she just wanted to come to Australia and earn money.
I asked the applicant if she still claimed that she would be persecuted for political activity. The applicant said she didn’t understand. I asked if the applicant received money to create havoc at a political speech. The applicant said she wasn’t clear, her friend helped. I asked the applicant if the event happened, to which she confirmed that it had not.
I questioned if the applicant had been beaten up or threatened by gang members. The applicant then claimed to have borrowed money from a loan shark in Malaysia when she wasn’t working, approximately three or four years ago. She outlined that they did not beat her, but they warned her to make the repayment each month. Each month the applicant sends money back to Malaysia. She originally borrowed [Amount 1] MYR (approximately $[amount] AUD) and now owes [approximately a third of Amount 1] MYR (approximately $[amount] AUD).
The applicant claimed to have no record of the loan. She alleged that the other party has a record and she only knows the approximate balance. I asked if she had any record of the transfers that she could provide the Tribunal. The applicant said she exchanges currency with someone, and they make the transfer, so she has no record. She did not know the name of the person from whom she borrowed the money from, but said their nickname was [Mr B].
I expressed to the applicant that I had some difficulty believing aspects of her evidence. In particular, I found it difficult to accept that the applicant would be unable to provide details about who she borrowed money from or have a record of how much was owed.
RISK OF HARM
I accept that the applicant is a Chinese-Malaysian female and a Buddhist. For the reasons below, I do not accept that the applicant was assaulted or threatened as a result of her political activities. I do not accept the applicant’s claim to have to have borrowed money from a loan shark and I do not accept that the applicant is at risk of harm from moneylenders. I do not accept that the applicant faces a real chance or risk of serious or significant harm now or into the reasonably foreseeable future on the basis of either her political beliefs, having borrowed money or for any other reason.
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, I am aware of the need and importance of being sensitive to the difficulties asylum seekers often face. In SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims’.[1] However, as outlined in The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.[2]
[1] SZLVZ v MIAC [2008] FCA 1816 at [25].
[2] Geneva, 2019, para 204.
I further note that the Australian courts have not endorsed a free standing ‘benefit of the doubt’ obligation and various judgments have expressed doubts as to its existence under Australian law.[3] In particular, it is questionable whether such an approach is consistent with the statutory requirement for a decision-maker to be ‘satisfied’ of the matters set forth in s 65 of the Act.[4]
[3] See SZNRZ v MIAC [2010] FCA 107 at [19]–[21]; SZLPN v MIAC [2010] FCA 202 at [16]–[17]; MZAKQ v MIBP [2016] FCCA 1186 at [50]–[61]; SZRGE v MIAC [2013] FMCA 18 at [52]–[60]; SZQMB v MIAC [2012] FMCA 24 at [48]–[51].
[4] See SZNRZ v MIAC [2010] FCA 107 at [20].
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[5]
[5] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
Considering all the evidence cumulatively and having regard to the applicant’s narrative as a whole, I do not find the applicant to be credible. The applicant’s evidence at the Tribunal hearing was vague, inconsistent and lacked plausibility. None of the claims raised in the Tribunal hearing were raised with the Department of Home Affairs and the applicant had little to no understanding of the claims presented in her application form.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
The applicant’s evidence at the hearing was entirely different to the claims outlined on her protection application form. The applicant gave evidence that she was assisted with her form by a friend who is a migration agent. I accept that minor inconsistencies might arise when an applicant provides a statement which is translated into English by an unqualified individual. Nevertheless, this does not assist to explain why the applicant’s friend would change the substance of her claims for protection. When I raised my concerns with the applicant, she was unable to provide an explanation for the inconsistency. The application form outlined a fear of harm on the basis of political activity. At the hearing, the applicant expressed a fear of economic harm and had limited knowledge or understanding of the earlier claims. This divergence in evidence is not readily explained by a lack of English comprehension. As such, I have drawn an inference unfavourable to the credibility of the applicant’s claims put forward to the Tribunal.
At the Tribunal hearing, the applicant gave evidence that she borrowed money from a loan shark known as [Mr B]. She could provide no further detail about the moneylender’s identity, had no record of the loan having been taken out or repayments having been made, despite claiming to make repayments each month. It is difficult to accept that the applicant would be able to make repayments without any details of the loan or lender or any record of a transaction or currency conversion. I also note that the applicant did not raise any concerns about moneylenders until she was asked about whether she had been threatened or beaten by gang members, as outlined in her application form. However, in her original application, the applicant claimed that she was beaten and threatened as a result of her political activities, not because of an outstanding loan. I do not accept that the applicant took a loan from an unlicensed moneylender or that she would be harmed by a moneylender if she returned to Malaysia.
The applicant expressed a desire to remain in Australia and make money. She felt that her family may not have sufficient money to cover basic expenses if she returned to Malaysia. The Department of Foreign Affairs and Trade (DFAT) Country Information Report on Malaysia[6] outlines that:
the World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2018, its real GDP growth was 4.7 per cent, while per capita GDP was USD10,942 (AUD14,630). Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (USD 8.50 (AUD 12.26) per day in 2012) falling from over 50 per cent in the 1960s to less than 1 per cent today. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, which predominantly consists of Bumiputera. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. The UNDP’s Human Development Index ranked Malaysia 57 out of 189 countries in 2018, placing it in the ‘high human development’ category…
The Malaysian Department of Statistics reported a labour force participation rate of 68.6 per cent in June 2019, while in February 2019 the Malaysian Department of Statistics reported an overall unemployment rate of 3.3 per cent. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians…
[6] 13 December 2019.
DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.
I note that the applicant was previously able to find employment [as an Occupation 1] in Malaysia and has gained additional experience working in construction in Australia. I acknowledge that the employment available to the applicant would involve lower wages than jobs which require higher education (and would pay lower wages than she could earn in Australia). Nevertheless, as discussed with the applicant at the hearing, I am not satisfied that the applicant would be unable to find any work at all, such that her ability to subsist was compromised if she returned to Malaysia now or in the reasonably foreseeable future. Other than expressing a hope that her mother’s health was good, the applicant gave no evidence to suggest that it was poor or that her mother had any specific needs or expenses. In addition, the applicant’s brother assists the family financially through his employment as [an Occupation 2].
Considering the available evidence, I am not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood for any reason, including for reason of her ethnicity, religion or lack of education, such that her capacity to subsist would be threatened. I accept that the applicant is concerned about being able to support herself and her family, but find that she would be able to do so by finding employment in Malaysia (albeit at a lesser rate than she has been able to do in Australia).

At the Tribunal hearing, the applicant made no claims in respect of her political activity or beliefs. She showed limited understanding of the contents of her original claim. Further, she confirmed that the incident at a political rally, outlined in her application for protection, did not happen. For these reasons, I do not accept that the applicant was or would be politically active in Malaysia. I do not accept that she would face a real chance of harm on that basis.
I note that s. 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant did not claim to have been personally discriminated against in employment or education, or harmed, or prevented from worshipping as a Chinese Malaysian or a Buddhist. Nevertheless, I note that while previous harm (or the lack thereof) is not an infallible guide to assessing whether there is a real chance of an applicant suffering harm in future, the combination of the DFAT information and the applicant’s evidence leads me to conclude that she does not face a real chance of serious or significant harm on account of her Chinese ethnicity. I further consider that she would be free to practice her religion as a Buddhist if she chose to do so either now or in the foreseeable future.
For the reasons above, I find that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason if she were returned to Malaysia. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[7] I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that she will suffer significant harm: s.36(2)(aa).
[7] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
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).
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. It follows that the second named applicant is unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
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.
…