1926498 (Refugee)

[2021] AATA 688

1926498 (Refugee) [2021] AATA 688 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926498

COUNTRY OF REFERENCE:                  China

MEMBER:Dominic Triaca

DATE:2 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 March 2021 at 11:33am

CATCHWORDS
REFUGEE – protection visa – China – loan sharks – discrepancies between initial claims and evidence given the Tribunal hearing – initial claims denied – no other claims made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379

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 18 September 2019 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s. 65 of the Migration Act 1958 (the Act)[1]. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.

   [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611

2. The visa applicant applied for a visa on 30 June 2019. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s.36(2) (a) or (aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).

1. The applicant appeared before the Tribunal on 19 February 2021 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

1. For the following reasons, the tribunal has concluded the decision under review should be affirmed.

RELEVANT LAW

1. The criteria for the grant of a protection visa are set out in s. 36 of the Act and Schedule 2 of the Regulations. An applicant must establish that they are a non-citizen of Australia and that they are either:

   (a)A person in respect of whom Australia has protection obligations because that person is a refugee (the refugee criterion)[2];

   (b)A person in respect of whom Australia has protection obligations because of other complementary protection grounds (the complementary protection criterion)[3]; or

   (c)A member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion)[4].

   [2] Migration Act 1994 (Cth), s 36(2)(a)

   [3] Migration Act 1994 (Cth), s 36(2)(aa)

   [4] Migration Act 1994 (Cth), s. 36(2)(b),(c).

2. 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 protection in that country.[5] 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 they are unable or unwilling to return to that country.[6]

   [5] Migration Act 1994 (Cth), s 5H(1)(a)

   [6] Migration Act 1994 (Cth), s 5H(1)(b)

1. 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 of the Act.

1. The term persecution is not expressly defined in the Act. The term persecute is not defined in the Act. The standard Australian dictionary, the Macquarie Dictionary, defines the verb to "persecute" as "to pursue with harassing or oppressive treatment; harass persistently" and relevantly, "to oppress with injury or punishment for adherence to principles".[7]

   [7] SEE CHEN SHI HAI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] HCA 19; 201 CLR 293 AT [61] TO [65] FOR A DETAILED DISCUSSION OF THE MEANING OF PERSECUTION.

1. Section 5J of the Act states that for the purposes of the application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race nationality, membership of a particular social group or political opinion’ and that there is a real chance they will be persecuted for one or more of these reasons in the event they return to their receiving country. The real chance of persecution must also relate to all areas of the receiving country.[8]

   [8] Migration Act 1958 (Cth) s5J(1)(c)

1. In Chan v MIEA[9] the Court, when considering ‘well-founded fear’ for the purposes of the Refugee Convention, held that it involves both a subjective and objective element.[10] Mason CJ said at 389:... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. Dawson J said at [397] ‘Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear ‘and at 398 that a “real chance is one that is not remote regardless of whether it is less or more than 50%”.Toohey J said at 407:The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. McHugh J said at 429:...a fear may be well-founded for the purposes of the Convention and Protocol even though persecution is unlikely to occur...an applicant for refugee status may have a well-founded fear of persecution even though there is only a ten per cent chance that he will be...persecuted.

   [9] (1989) 169 CLR 379

   [10] the meaning of “well-founded fear of persecution”, and “real chance” of persecution were the subject of earlier judicial commentary when the applicable tests were found in the Refugees Convention. Those authorities remain apposite. In AKH16 v Minister for Immigration and Border Protection[2019] FCAFC 47;  (2019) 269 FCR 168 (AKH16) (Besanko, Middleton and Mortimer JJ) and AON15 v Minister for Immigration and Border Protection[2019] FCAFC 48; (2019) 269 FCR 184 (AON15)(Besanko, Middleton and Mortimer JJ) the Full Court usefully discussed some of the main authorities.

1. The Act provides that a person is only considered to have a ‘well founded’ fear of persecution if three elements are satisfied.

   (a)They fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;[11] and

   (b)There is a real chance that, if they are returned to their home country, they would be persecuted for one or more of those reasons;[12] and

   (c)The real chance of persecution relates to all areas of the receiving country.[13]

   [11] Migration Act 1958 (Cth), s 5J(1)(a)

   [12] Migration Act 1958 (Cth), s 5J(1)(b)

   [13] Migration Act 1958 (Cth), s 5J(1)(c)

2. In the event that a person fears persecution for one or more of the prescribed reasons, the Act imposes the following three further requirements[14]:

   (a)The identified reasons(s) for the persecution must be the essential and significant reason(s) for the persecution;

   (b)The persecution must involve serious harm to the person; and

   (c)The persecution must involve systematic and discriminatory conduct.

   [14] Migration Act 1958 (Cth), s 5J(4)(a)(b)(c)

3. A person will not have a well-founded fear of persecution if effective protection measures are available to the person in their home country or if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in their home country.[15] In determining whether a person has a well-founded fear of persecution, any conduct engaged in by that person in Australia is to be disregarded unless the person satisfies the tribunal they engaged in the conduct otherwise then for the purpose of strengthening their claim to be a refugee.[16]

   [15] Migration Act 1958 (Cth), s 5J(2) and (3)

   [16] Migration Act 1958 (Cth), s 5J(6)

4. 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 gran 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 consequences 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 36(2B) respectively, extracted in the attachment to this decision.

1. An applicant is considered not to be at real risk of suffering significant harm in a country if it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm[17],or the tribunal is satisfied that the applicant could obtain protection from an authority of that country such that they would not be a real risk that the applicant would suffer significant harm or the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally . That is, the level of protection must be such that the risk that the applicant will suffer significant harm is less than a real risk.[18]

   [17] Migration Act 1958 (Cth), s.36(2B)(a)

   [18] Migration Act 1958 (Cth), s.36(2B)(b).

1. The tribunal has concluded that the decision to refuse the applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:

   (a)The delegate’s decision record;

   (b)The applicant’s original written visa application;

   (c)The oral evidence and arguments of the applicant presented at the hearing;

   (d)All written material filed by or on behalf of the applicant in relation to this case;

   (e)Other relevant documents on the Tribunal and Department files;

   (f)The ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs’[19];

   (g)Country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, also mandatory considerations under Direction No. 84.

   [19] These are mandatory considerations as prescribed by Ministerial Direction No. 84, a direction made under s.499 of the Act (Direction No 84)

2. Not all the evidence and material that has been placed before the tribunal is specifically referred to in the tribunal’s reasons set out below. The reasons refer to information that is materially significant to the determination of the issues at hand.

CONSIDERATION OF CLAIMS AND EVIDENCE.
Applicant’s Background.

1. The applicant is a [age] year old citizen of China. He states that he comes from the Hubei province.  He provided a copy of his passport to the Department corroborating this claim. He does not claim to hold citizenship of any other country.

2. The applicant stated he is married. His wife lives with him in [City 1] in [regional] Victoria where he works as a [Occupation 1]. They have one child, a son aged [age] years old. He lives with and is cared for by his wife’s family in China.

1. The applicant arrived in Australia [in] May 2019 on a Visitor (subclass 600) visa – tourist stream. The applicant lodged his application for Protection (subclass 866) visa and associated Bridging visa on 30 June 2019. He has remained in Australia since that time.

Protection Claims.

1. The applicant’s original claims are set out in his original visa protection form and summarised in the delegate’s decision. In summary those claims are as follows:

   (a)The applicant and his wife had a [store] and wanted to extend it. They borrowed money from a loan company on the internet and the contract was to repay the money and 5% interest after one year. However, the loaner cheated them. After two months, the loan company wanted all the money returned and the interest paid.

   (b)As the applicant could not do that, the loaner hired some people who smashed the applicant’s store. The windows, door of the store and [specified] tools were broken. The applicant was very badly beaten and they also threatened to kill him if the money was not repaid.

   (c)Nobody wanted to help the applicant after they saw what happened to him and his store.

   (d)The authorities Do not care about such things and would force the applicant to pay the money.

   (e)The applicant did not have money to move as the owner took everything.

   (f)On return to China the applicant fears he will be beaten or killed. The loners are powerful and have friends all around China.

1. The applicant was invited by the Department to provide further information in support of the application, but he did not do so. He did not attend an interview with the Department prior to the assessment of the application.

Evidence given at the Tribunal Hearing.

1. The applicant arrived in Australia in 2019. He initially resided in Melbourne. He has resided in [City 1] for approximately 18 months. He lives with his wife. She does not work in Australia. He says she is on home duties. He works as a [Occupation 1].

2. The applicant’s evidence at the hearing was significantly different to the matters set out in his application. Whilst he confirmed that he was the proprietor of a small [business] in his hometown for approximately 5 years and he had sought to borrow money for the purpose of expanding the business, the balance of his evidence was completely different to his initial application.

3. He says he sought to borrow [amount] RMB for the purpose of expanding his business. He went to [Bank 1] in China. He made an application to the bank to borrow money and his application was refused by the bank. He says that he did not borrow any money as the application was refused. He denied that he had borrowed money from an illegal lender or loan shark. He said that he had not borrowed any money since arriving in Australia. He also stated that his wife had not borrowed any money in China or Australia.

4. When asked to explain the differences in his evidence, he suggested that it may have been that the documents prepared by his agent did not accurately reflect his circumstances at the time of the application.

5. He said that he is not afraid of returning home to China and he could not state any reason why he could not return home. He says he is not afraid of the lender. He says that the statement in relation to his [shop] being ‘smashed up’ was not correct. The only concern he raised in relation to returning home to China was that in doing so he may be prevented from travelling to Australia in the future.

6. The applicant said that he enjoyed living in Australia and ‘it is pretty good here’ and ‘suits him’. He would like to stay for a further three years, possibly longer.

Country Information.

1. The Department of Foreign Affairs and Trade (DFAT) most recently published an information report about China in October 2019. That report provides the following information that is potentially relevant to the applicant’s case on review,[20] relevantly with respect to loan shark practices:

   • 3.236 There is no comprehensive data available on short term cash lending (including online lending), as illegitimate lenders (otherwise known as loan sharks) operate illegally. In 2017, the supreme People’s Court ruled that courts could only accept cases involving debt collectors seeking repayment of their loans if the interest rate charge did not exceed 24 per cent. Media reports claim that, as a result of the ruling, creditors have been forced to find other ways to get their money back if the rate is higher, and reportedly often resort to physical violence and threats against borrowers. Media reports also claim the loan sharks predominantly operate online and are increasingly designing debt traps disguised as legitimate lending. In May 2019, media reported that Shanghai authorities charge 316 criminal gangs, detained more than 1770 suspects and retreat more than our RMB 1.2 billion in loan shark victim losses during October 2019 in a crackdown on loan shark activity.
   • 3.237 DFAT considers these claims plausible, but is unable to verify them, and has no further information on the prevalence of loan sharks or alleged maltreatment of borrowers in China.

Analysis of Evidence and Factual Findings.

[20] Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China (3 October 2019).

Credibility.

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim^.[21] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[22]

   [21] Migration Act 1958 (Cth) s.5AAA

   [22] MIEA v Guo (1997) 191 CLR 559 at 596

1. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s  credibility[23]. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [23] Minister for Immigration and Ethnic Affairs and McIlhatton v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445 per Foster J at p.482

1. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt where they are unable to fully substantiate their claims[24].  However, such a benefit should 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.

   [24] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3]

2. The tribunal is not obliged to assist the applicant make their case. Nor is it required to accept uncritically and or all of their claims. It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[25]

   [25] Migration Act 1958 (Cth), s.5AAA(2)

Factual Findings.

1. In this case, the tribunal is satisfied that the applicant is a citizen of China and of his general personal background as described by the applicant tin his evidence before the Tribunal, and the delegate and his original protection visa application. In this respect the tribunal finds:

   (a)The applicant is a citizen of China.

   (b)China is the country of reference for the purpose of assessing his application against the criteria for the grant of a Subclass 866 visa.

1. Given that the applicant has said his initial claims were false, and he has made no other claims to fear harm, I am not satisfied that he faces a real chance of serious or significant harm in China. In light of the applicant’s evidence I consider he has no well-founded fear of serious or significant harm and  there does not appear to be any real chance of the applicant suffering serious or significant harm upon his return to China.

2. Accordingly, the tribunal finds the applicant does not meet the refugee criterion.

Does the applicant meet the Complementary Protection Criterion?

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the tribunal is satisfied that Australia has protection obligations because the tribunal 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 [they] will suffer significant harm.[26]

   [26] Migration Act 1958 (Cth), s 36(2)(aa)

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

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

4. For the same reasons that have been set out above, the tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk the applicant will suffer serious or significant harm.

5. The tribunal is not satisfied that the applicant meets either the refugee criterion or the complementary protection criterion.

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

D Triaca
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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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