1926956 (Refugee) - [2024] ARTA 734

1926956 (REFUGEE) [2024] ARTA 734 (6 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1926956
Tribunal:General Member J Edis
Date:6 December 2024

Place:Perth
Decision:The Tribunal affirms the decision under review.

Statement made on 06 December 2024 at 10:21am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Chinese ethnicity – harassment and serious threat from the loan shark – vague evidence– credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (now known as the Minister for Immigration and Multicultural Affairs) to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The application was initially lodged with the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.[1] This decision and statement of reasons is made by the Tribunal.
[1] The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
BACKGROUND
The applicants comprise a trio of Malaysians: namely, the first-named applicant, his de facto partner ([Miss A]), and his older sister ([Miss B]).
The first-named applicant is the primary applicant in this case. [Miss A] and [Miss B] have not made any claims in their own right. For simplicity, I will mostly refer to the first-named applicant as ‘the applicant’ hereon in.
The applicant and [Miss A] travelled to Perth on [date] March 2019 holding UD-601 Electronic Travel Authorities (ETAs).
[Miss B] travelled from Malaysia to Perth later, on her own. She arrived on [date] April 2019.
The applicants lodged a protection visa application via ImmiAccount[2] on 7 June 2019.
[2] The Department’s online visa application system.
According to what was stated on the application form, the applicants left Malaysia because of an ‘economy issue’, to the effect that they could not find jobs or support themselves.
The applicants were not asked to provide more details or attend a Departmental interview.
The delegate made the refusal decision on 17 September 2019. The applicants sought review of that decision via the lodgement of the application to the AAT on 24 September 2019.
On 26 July 2024 the AAT Registry contacted the applicants to inform them that their case was being prepared for a hearing. They were invited to complete and return a ‘pre-hearing information form’ (the Form), which they did, on 2 August 2024.
On the Form, the applicant wrote that he left Malaysia together with his partner and sister ‘to escape from harassment and serious threat from the loan shark’. He explained:
·He borrowed from a loan shark to carry on a business.
·After he received the money, the loan shark imposed a higher interest rate than initially agreed.
·He could not meet the repayments.
·As a result, the loan shark became violent and threatened harm to him and his family.
·The loan shark was connected to underworld gangsters and local police.
·The loan shark threatened him that if he went to the police, he and his family would be harmed.
·They had no choice but to escape from Malaysia to Australia.[3]
[3] The applicant provided further particulars of these claims in a statement emailed to the Tribunal on 11 November 2024, in response to a Request For Information sent to him.
The applicant also stated on the Form that he had provided these details to the migration agent, but the agent did not include them on the protection visa application.
The applicants were all invited to attend a Tribunal hearing to present arguments and evidence in support of their case.
The hearing took place on 20 November 2024 before me. The applicant appeared by video‑link. He was assisted by a Malaysian interpreter. [Miss A] and [Miss B] chose not to attend.
I have closely considered the applicants’ evidence and information, and assessed the claims they have made as to why they left Malaysia and do not wish to return.
For the following reasons, I have determined that the applicants do not meet the protection visa criteria and I therefore affirm the decision under review.
OUTLINE OF EVIDENCE AND CLAIMS
I set out below an outline of the evidence and claims presented on behalf of the applicants.[4]
[4] The outline of evidence is derived from the Form, the applicant’s written statement of 11 November 2024, and the applicant’s oral testimony on 20 November 2024. I have not relied on the visa application form because the applicant unequivocally told me at the hearing that he had never seen it.
Personal circumstances
The applicants are Malaysian citizens.[5] They are of Chinese ethnicity and Buddhist faith.
[5] They travelled to Australia on Malaysian passports. Copies were provided to the Department. I have no reason to doubt the validity of these documents.
The applicants come from ([Town 1]) situated in Perlis, which is the smallest and northern-most state in Malaysia. Perlis shares a border with Thailand. [Details deleted].
The applicant is [age] years old. Miss [A] is [age]. They have been together since around 2011.
[Miss B] is [age] years old. The applicant and [Miss B] are 2 out of 4 children; they have 2 brothers.
The applicant and [Miss B]’s father passed away over 20 years ago. Their mother is still alive and lives in [Town 1] with the eldest of the 2 brothers, together with his wife and 2 children.
The applicant completed high school in [Town 1] and went on to study at a tertiary level. He completed 3 out of the 4 years of the university course before moving to Penang for a job.
The applicant lived and worked in Penang for around 1.5 years and then returned to [Town 1].
In 2014, the applicant started work as a [manager]. His employer was in the business of [details deleted].
How the loan shark debt arose
In late 2016, the applicant was approached by a [customer] of the business he worked for. The customer sought to enter into a deal directly with the applicant rather than via the company. The deal was to the effect that the applicant would purchase goods using his employee discount. He would then privately supply the goods to the customer, who would on-sell them in [Country 1] at a profit within 3 weeks. They were to split the profit equally.
The applicant needed MYR20,000 to buy the goods. He did not have the money. He tried to obtain a bank loan but was rejected. So, he turned to a friend. He borrowed MYR4,000 from the friend. The friend introduced him to a loan shark to obtain the remaining funds.
The applicant entered into an agreement with the loan shark. He borrowed an amount of MYR20,000 on the basis that repayments were to be weekly, and the interest rate was 20%.
The applicant borrowed the money from the loan shark in anticipation of receiving his share of the profits from the [customer] within the 3-week timeframe. He was expecting to make an overall profit of almost MYR30,000 from the deal based on the assumption that he would end up paying the loan shark a total of around MYR40,000 (i.e., comprising the principal and interest).
As it turns out, the loan shark did not follow the agreement. For example, they deducted MYR4,000 immediately upon loaning the money, telling the applicant that it comprised an administrative charge and the initial interest payment. In other words, the applicant did not even receive the full amount of MYR20,000 – instead, he only received MYR16,000. The loan shark also increased the interest rate to an amount that was higher than 20%.[6]
[6] The applicant did not give clear evidence about the numerical value of the higher percentage rate, simply that it was ‘very high’ and ‘illegally fixed and imposed’ without his agreement.
To make matters worse, the [customer] absconded with the goods. The applicant lost contact with him after he supplied the goods. He tried to find his whereabouts, including by visiting [Country 1] and asking for his contact numbers from the companies who he knew there. But no one could find him. As a result, the applicant was entirely out of pocket from the initial purchase, did not receive any profit, and was left with a rapidly increasing loan shark debt.
The applicant ultimately managed to pay MYR20,000 back to the loan shark from his wages and some funds borrowed from his mother and one of his brothers. But the loan shark insisted that he continue to pay the interest. The applicant did not agree to the higher interest and refused to keep making payments.
The harm experienced by the applicant
Throughout 2017 and 2018, the applicant was repeatedly harassed by the loan shark to make payments to them. The harassment comprised frequent phone calls, as well as personal visits to his home and nearby to his workplace. They knew he worked at the [workplace]. They would often be waiting for him nearby, either at the start or end of his shift. They intimidated and threatened him to pay the interest that he owed. The threats included either that they would lock him away, or they would harm his mother, or they would make his girlfriend ([Miss A]) disappear. The applicant would tell them that he had already paid back the money he owed, but he could not pay the interest because it was too high.
On one occasion, in around May 2018, the loan shark contacted the applicant during a work shift. The applicant was told to come outside and meet up with them. The applicant did not want a scene at the [workplace] , so he complied. He was told to get into a car with them, which he did. They drove to the countryside on the outskirts of [Town 1]. They made the applicant get out of the car and walk into some [fields]. They gave him the impression they were going to kidnap and torture him as a consequence of not meeting the repayments. But they did not proceed to do so. Their intention was to terrify him, which they did. They then abandoned him in the fields. He called a friend, who found him and brought him back to [Town 1].
Attempts to get away
The applicant gave evidence about his unsuccessful attempts to get away from the loan shark in [Town 1] and their repeated demands. He first tried going to Penang.[7] But he soon encountered ‘their people’ and was reminded about the debt. His evidence was unclear as to when this took place, but he said it was before he had paid the total of MYR20,000 to the loan shark. He returned to [Town 1] and resumed making payments.
[7] Approximately 2.5 hours away from [Town 1] by car.
By early 2019, the applicant was so stressed by the ongoing loan shark situation that he decided to leave [Town 1] again. The applicant and [Miss A] departed on [date] January 2019. They travelled to [City 1] by motor vehicle.
Within a couple of weeks of arriving in [City 1], the applicant saw a person who he recognised as one of the loan shark’s debt collectors who had previously harassed him in [Town 1]. The person was a [Country 1] national. He was part of the group who had taken the applicant to the [fields] in May 2018. The person approached the applicant and showed him a photo of the applicant’s identity card and asked: ‘are you this [name]?’. He indicated that he knew about the debt and told the applicant there were people looking for him.
The applicant became very scared. He decided he and [Miss A] needed to move on from [City 1]. They rented a car and drove to ([City 2]).
After 2 weeks in [City 2], the applicant was approached by a debt collector again. His evidence about what happened was vague. Regardless, he said he no longer felt safe in [City 2] and did not want to remain there either.
The applicant had already turned his mind to him and [Miss A] potentially leaving the region altogether and heading to Australia, before going to [City 2]. He organised their ETAs in mid-February 2019 and booked their flights to Perth on a ‘random date’ in March 2019.
Travel to Australia
The applicant did not know anyone in Australia, but some of his family had visited before and he had a bit of online ‘research’. He was confident that he would be able to find work in a [workplace]. He was also aware of Malaysians travelling to Perth on ETAs and then working on farms.
The plan was for the applicant and [Miss A] to ‘stay as long as possible’ in Australia because they were ‘really terrified’ of the loan shark. They found some ‘casual work’ not long after arriving in Perth. The applicant got a job as a [occupation].
The applicant contacted his family in [Town 1] firstly from Perth airport, and then after he got his job. He wanted to let them know he was safe, and they need not worry about him. He spoke with his sister, [Miss B]. The applicant got the impression from [Miss B] that she had been harassed by the loan shark, although she did not say as much. The applicant told [Miss B] that he was ‘very happy’ in Perth.
According to the applicant, [Miss B] ‘made her own decision to come’ to Australia. She arrived on [date] April 2019. She did not move in with the applicant and [Miss A] at that time, and she does not presently live with them either. She found her own work.
The protection visa application
The applicant has never seen the protection visa application form lodged with the Department on 28 May 2019. It was prepared and submitted by someone to whom he paid AUD1,700 and who he thought was a migration agent. He never met this person; the ‘agent’ was based in Melbourne.
The applicant was reassured by the ‘agent’ that Australia would provide protection to him, [Miss A], and [Miss B]. The applicant explained the loan shark situation to the ‘agent’ and assumed that the relevant details had been included on the visa application form. The applicant was surprised to receive a refusal outcome.
The ‘agent’ helped the applicants lodge an application for review with the AAT in September 2019 and said to them: ‘as long as you stay inside Australia, then everything will be fine’. The ‘agent’ did not otherwise help them with their case. The applicant has tried calling him; the phone number is not connected.
The reasons why the applicants fear returning to Malaysia
The applicant anticipates the loan shark, and his network of debt collectors, would find him if he returned to Malaysia, and he is at risk of death because it will be impossible for him to repay the debt, which would be in the vicinity of MYR300,000 due to accumulated interest. He fears that he will be caught and killed by the loan shark. He told me that his organs will be harvested and sold in other countries, like Laos.
The applicant’s fear is based not only on his own experiences before he coming to Australia, but also because one of his friends was beaten to death by ‘those people’ in 2022. The friend in question owed money to the loan shark. The applicant had previously contacted that same friend to find out about his own situation. The friend told the applicant that it was better for him to stay in Australia than return home.
The applicant thinks he cannot live safely anywhere in Malaysia because of the loan shark network. He is of the belief that ‘the moment [he] enters Malaysia, they would find out’. He also has no expectation the Malaysian authorities would protect him. He said the government doesn’t care about situations like his.
According to the applicant, [Miss A] and [Miss B] are afraid to return to Malaysia for the ‘same reasons’ as him. They anticipate being harmed by the loan shark and have nowhere to hide either. They do not have any separate or different protection claims.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994. An overview of these criteria was explained to the applicant at the outset of the hearing. The key provisions are extracted in full as an attachment to this statement of reasons.
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.
Refugee criterion
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 (PSG) 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.
Complementary protection criterion
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 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). Pursuant to s 36(2A), a person will suffer significant harm if they 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.
ARE THE APPLICANTS ELIGIBLE FOR THE VISA?
Do the applicants satisfy the refugee criterion?
The applicants have not identified a fear which is linked to their race, religion, nationality, political opinion, or membership of a PSG. The first-named applicant has been very clear and consistent that the reason why he is afraid to go back to Malaysia is because he expects he will be seriously harmed by the loan shark. The situation resulted from his own specific triggering actions in 2016, when he borrowed money from the loan shark of his own accord to facilitate a ‘business deal’ and unfortunately found himself unable to meet the interest repayments that were being demanded from him. Evidently, this is not a reason enumerated in s 5J(1) of the Act.
In short, I find there is no correlation between the applicants’ circumstances[8] and the defined meaning of ‘well-founded persecution’ per s 5J of the Act. On this basis, I cannot be satisfied the applicants meet the definition of a refugee per s 5H and, as such, they do not invoke Australia’s protection obligations under s 36(2)(a) of the Act.
[8] That is, the first-named applicant and, by claimed association, [Miss A] and [Miss B].
Are the applicants owed complementary protection?

Having concluded the applicants do not meet the refugee criterion in s 36(2)(a), I am required to consider the alternative criterion in s 36(2)(aa). This involves a prospective assessment of the applicants’ circumstances and a consideration whether there are substantial grounds for believing there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of returning to the receiving country.[9]
[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13].
As a first step, I find the receiving country to be Malaysia and that the applicant experienced what can be described as ‘cruel or inhuman treatment or punishment’ at the hands of the loan shark in [Town 1], throughout 2017 and 2018.[10]
[10] See s 5(1) of the Act for the definition of ‘cruel or inhuman treatment or punishment’.
Put simply, I accept what happened to the applicant in [Town 1]. His decision to borrow money from the loan shark turned out to be a disaster for him. He anticipated being able to meet the repayment terms because he expected to receive a quick profit from the ‘business deal’. When that fell through, he was at the receiving end of relentless threats and harassment and intimidation by the loan shark and his associates.[11]
[11] The applicant’s experience is consistent with the information reported by the Department of Foreign Affairs and Trade in its Country Information Report for Malaysia, published on 24 June 2024, at [3.149] to [3.154].
I find the applicant managed to repay MYR20,000 to the loan shark but, after doing so, he decided not to make any further payments on the basis that the interest rate was exorbitant, and the applicant considered it to be both unfair and futile to give more money to the loan shark. I find the cumulative stress of the repeat harassment, including the [field] incident in May 2018, on the applicant precipitated his decision to leave [Town 1] in early 2019. I find that [Miss A] left [Town 1] together with the applicant because the couple were in a committed and longstanding relationship. I find she was also afraid of being harassed by the loan shark as means of inducing the applicant to return and/or pay them money, so it made sense for her to depart with him rather than stay behind in [Town 1].
I have some reservations in respect of the applicant’s evidence about what took place in [Country 1], but I am prepared to accept that he encountered an individual in [City 1] who was connected to the loan shark in [Town 1] and he was reminded of the outstanding debt. It was this incident which motivated the applicant to organise the ETAs and book flights to Perth. I am not convinced the applicant received a further approach from a different person in [City 2]. In any event, I find the applicant had already decided by then that he wanted to travel to Australia to escape from the situation. He had made the necessary arrangements after all.
The applicant and [Miss A] arrived in Perth on [date] March 2019. The applicant started working soon thereafter. He contacted his sister, [Miss B], and reported to her that he was ‘very happy’ here. I find it was this conversation which motivated [Miss B] to travel to Perth approximately 6 weeks later. I do not accept that [Miss B] became the target of the loan shark after the applicant left [Town 1]. She has not given any evidence of her own accord to that effect. Moreover, the applicant admitted that she did not actually expressly say anything of that kind to him. At most, he said she ‘implied’ she had been harassed; I find this aspect of the applicant’s evidence unconvincing and unreliable.
The applicant assumes that he now owes a very large sum of money to the loan shark in [Town 1], because of the accrued interest, and he will be expected to pay it off if he returns there. He also anticipates that, because he will not be able to meet the repayments, then he will be physically harmed or indeed killed by the loan shark, and have his organs removed for sale.
I take account of the fact that over 5.5 years has passed since the applicant left [Town 1] in fear of the loan shark but, on his own evidence, in the lead up to the Tribunal hearing, he has not attempted to make any recent enquiries about the risk of harm he might face if he is removed from Australia .[12] Yet he has family members who have been living in [Town 1] all this time. No one from [Town 1] has provided a statement, either verbally or in writing, which seeks to corroborate the assumptions and claims made by the applicant about the reality of the current situation. This leaves me with an unsatisfactory vacuum of information.
[12] Specifically noting the applicant was informed by the AAT Registry on 26 July 2024 that the case was being prepared for a hearing and that the hearing did not take place until 20 November 2024, some 4 months later.
Speaking of the family members in [Town 1], the applicant has not suggested at any stage that they have been harmed in his absence. He gave vague evidence about his mother possibly having given some of her jewellery to the loan shark in response to demands for money. But it was unclear whether this took place before or after the applicant left [Town 1]. In any event, by all accounts, the applicant’s mother, his 2 brothers, and their family, still reside in [Town 1] and are leading uneventful lives. If the loan shark was still keenly interested in provoking or threatening the applicant, I would expect the situation to be otherwise.
In this regard, I find it to be highly relevant that the applicant did not leave [Town 1] in 2019 without having paid off the principal loan of MYR20,000 to the loan shark. In other words, the loan shark was not left out of pocket; rather, they missed out on the profit they had intended to receive from the interest payments. I consider the motivation on the part of the loan shark to earnestly pursue the applicant for the foregone interest likely dissipated some years ago.
The applicant referred to having made contact with a friend in [Town 1] in 2022 who warned him that it was best to stay away. He said that friend was later killed by the loan shark. Whereas I am prepared to accept the applicant’s friend may well have died in [Town 1] in circumstances involving an attack on him, I am not satisfied there is any connection between that event and the present risk being faced by applicant. The applicant could not provide anything other than hearsay, speculative evidence about the circumstances in which his friend came to grief. It may well have involved an entirely different scenario to his own. At most, this evidence reinforces what I already accept, namely, the loan shark and his associates are violent thugs.
I well understand the applicant is inviting me to find that the loan shark will resume their conduct where they left off, if he returns home. But it is not enough to rely on past harm as evidence of potential ongoing mistreatment, or to establish a presumption about what might happen in the reasonably foreseeable future.[13]
[13] See the Complementary Protection Guidelines at [3.5.4].
At the end of the day, I must be satisfied the risk of significant harm faced by the applicant in Malaysia is ‘real’. The Courts have long held that there must be an objective factual basis for finding that there is a ‘substantial chance’ of the feared harm occurring.[14] I need to assess what will take place imminently and in the reasonably foreseeable future as a necessary consequence of the applicant being removed to Malaysia. Neither the Department nor the Tribunal has any responsibility or obligation to proactively assist an applicant in establishing their claim.[15]
[14] My emphasis. See the High Court case of Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62, which discussed the ‘real chance’ test, which has later been held to involve the same approach.
[15] See s 5AAA of the Act.
The applicant has not sought to adduce any evidence about the current state of affairs in [Town 1] (or elsewhere in Malaysia) to substantiate why he remains at real risk of harm. By contrast (and to recap), he has given evidence about matters which cumulatively mitigate against that risk existing, being that at least 5 to 6 years has passed since the loan shark harassed him; he left [Town 1] having repaid the actual amount of money he had borrowed; and his family has continued to live in [Town 1] without incident. I also found his evidence about why he could not live elsewhere in Malaysia to be unpersuasive. I reject the applicant’s assertion that the loan shark ‘network’ would mean that he would be quickly discovered even in a large, populous city such as Kuala Lumpur or Johor Bahru if he chose to reside there instead of going back to [Town 1]. The gist of his evidence was the loan shark and their associates were more closely affiliated with [Country 1] than Malaysia, which made sense given the geographic location of [Town 1] and consistent with what he said happened in [City 1].
In summary, based on an overall assessment of the accepted evidence and information in this case, I find the applicant does not face a genuine prospect of ongoing harm from the loan shark. I am simply not satisfied there are substantial grounds for believing there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of returning to Malaysia.
It follows that I find there is no real risk of significant harm to [Miss A] and [Miss B] in Malaysia either. That is because neither of them has made a separate claim from the first‑named applicant.
Consequently, for the above reasons, I conclude the applicants do not invoke Australia’s complementary protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
For completeness, I note there is no suggestion the applicants satisfy s 36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, I also find the applicants do not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant protection visas.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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