1927457 (Refugee)

[2024] AATA 3222

1927457 (Refugee) [2024] AATA 3222 (9 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1927457

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Stefanie Memmott

DATE:9 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2024 at 11:40am

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – victim of loan sharks – criminal gangs – physical assault – fear of killing – state protection – internal relocation – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of Malaysia, applied for the visa on 6 June 2019.

   CLAIMS AND EVIDENCE

   Claims and evidence before the Department

   Protection visa application

2. The protection visa application form contains, among other things, the following personal information about the applicant:

   ·He was born in [specified year] in Selangor, Malaysia.

   ·He is a citizen of Malaysia and no other country.

   ·He is of Chinese ethnicity.

   ·He completed primary school in Malaysia, and worked as [an occupation 1] for many years.

   ·He travelled to Australia on [a day in] February 2013, arriving the following day as the holder of a visitor visa.

   ·At the time of lodgement he was not married, and his parents remained living in Malaysia.

3. The visa application includes the following claims for protection and related information:

   ·The applicant left Malaysia under the threats of the Malay gangsters and loan sharks. They are evil and cruel and will kill him if he stays in Malaysia. He had no choice but to escape.

   ·The gangsters and loan sharks came to find him many times and asked him to pay the money he owed them. He tried to repay the money but the interest was just too high and he could never be able to repay that kind of money. So they beat him and tortured him.

   ·He didn’t seek help in Malaysia. The police in Malaysia will never come to help. They even protect those loan sharks as they were paid by the gangsters and loan sharks.

   ·He tried to move to other places but they could come to find him wherever he went.

   ·If he returns to Malaysia, he will be found by the gangsters and killed. The Malay authorities never care about their safety, they will not protect them. He will be killed wherever he goes if he is in Malaysia.

   Delegate’s decision

4. A delegate of the Minister for Home Affairs refused the visa application on 20 September 2019, without conducting an interview. The delegate’s decision record sets out country information on gangs, the Royal Malaysian Police and the judiciary in Malaysia. The delegate found that there were effective protection measures available to the applicant in Malaysia, such that he did not have a well founded fear of persecution and there was not a real risk he would suffer significant harm.

   Claims and evidence before the Tribunal

   Application for review

5. The applicant lodged an application for review with the Tribunal on 30 September 2019.

   The hearing – oral and documentary evidence

6. The applicant appeared before the Tribunal on 2 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

7. At hearing, the applicant put forward a claim for protection concerning loan sharks which was, in general terms, the same as set out in his protection visa application. His oral evidence is discussed in more detail below, as relevant.

8. At hearing the applicant presented his Malaysian passport, issued in 2012 in Sepang. No other documents were submitted by the applicant. The applicant did not request the Tribunal to hear from any witnesses.

   CRITERIA FOR A PROTECTION VISA

9. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

10. 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.

11. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

12. 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.

13. 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

14. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Receiving country

15. The applicant gave evidence that he is a citizen of Malaysia and no other country and, as noted above, presented a Malaysian passport at hearing. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a national of Malaysia and that Malaysia is the receiving country for the purpose of assessing his claims.

    Risk of harm – claims at hearing

16. The applicant gave evidence that he grew up in [Town 1] in Selangor, but moved to a fishing village called [Village 1] in Perak state, about [distance] away from [Town 1], when he was [age] years old. He lived there for 11 years and worked as [an occupation 1]. He gave evidence that he was involved in gambling and in 2010 (while living in [Village 1]) he borrowed MYR [amount] from a loan shark group to finance gambling debts and keep gambling.

17. The applicant gave evidence that there was no agreed time frame in which he had to repay the debt as the loan sharks trusted him, the only requirement was that he paid the interest on the loan – which was 15% - every month. The applicant gave evidence that he did make interest payments when he was in Malaysia and kept making repayments when he was in Australia until he was married in 2019, but still owes over MYR [amount]. The applicant gave evidence that when he was in Malaysia some months he didn’t have the money and delayed the repayments, then the loan sharks would pressure him to pay. He also said that he knew some of the loan sharks in the group and they were happy to take less money sometimes.

18. The applicant gave evidence that when he was in Malaysia the loan sharks threatened him, saying if he didn’t repay the loan they will come and get him. These threats were made by phone and in person. The applicant gave evidence that they never physically harmed him.

19. The applicant told the Tribunal that about a year before he travelled to Australia he decided to go to Kuala Lumpur to escape the loan sharks, which is about [distance] away from [Village 1]. It was easier to hide there because it is a bigger city, and the loan sharks couldn’t locate him. He worked as a relief supervisor in [industry 1] there for about 6 months, at which point he had a car accident and had to rest for 6 months. The applicant told the Tribunal that he kept making the interest payments when he lived in Kuala Lumpur. The loan sharks did try to call him there but he didn’t answer and then changed his number so they couldn’t contact him. He said that they spoke to his friends who relayed threats to him – saying things like ‘don’t let us catch you’ and ‘I will take a hand or a leg from you’.

20. The applicant said he never went to the police to report these threats, because it would be useless and there would be no point, because of corruption. He said that the police only recognise money, not people. He said there are different rules in Malaysia, whatever they do they can bribe the police and will be let off – Malaysia is a very corrupt country.

21. The applicant gave evidence that some friends told him that Australia is a good place in terms of work and getting money, and that the government here respects human rights. So, he thought he’d try coming to Australia and found these things were true.

22. The applicant gave evidence that he has had no contact with the loan sharks since coming to Australia as they don’t have his number and he’s told his friends not to give them his number. He said that the loan sharks get his friends to convey threats to him, saying things like ‘don’t let me catch him’ and ‘don’t let us find you’. They have conveyed quite a lot of threats like this. He said that some his friends are friends with the loan sharks and socialise with them, they drink together. The loan sharks asked those friends about the applicant and asked where he is, but they wouldn’t threaten these friends. The loan sharks don’t know he’s in Australia.

23. The applicant gave evidence that his grandmother lives in [Village 1] and that is where is his mother is from, so the loan sharks know her and contact her. When his mother goes to visit his grandmother the loan sharks talk to her face to face. The last time was in January this year. The applicant gave evidence that the loan sharks haven’t harmed his friends or his mother or done anything else other than convey verbal threats (against him).

24. The applicant also gave evidence during the hearing that the loan sharks had been to his parent’s house and warned him not to return.

25. The applicant gave evidence that he was married in 2019 to a Malaysian woman living in Australia as the holder of a student visa, and that they now have [children]. He told the Tribunal that if he had to return to Malaysia they would live with his wife’s family in Sepang, [details deleted] in Kuala Lumpur. He would try to avoid the loan sharks and keep where he was living confidential. However he is concerned that the loan sharks might find him, as they have networks everywhere, and that it would be very hard to live like that.

26. When asked by the Tribunal what he feared would happen if he went back to Malaysia and continued to make loan repayments, as he did for many years, the applicant gave evidence that he couldn’t really say. He said that these people don’t have a conscience and he dares not think about what they would do. He told the Tribunal before he came to Australia there was news about loan sharks killing people, murdering and that kind of thing, that Malaysia is a very dark country with lots of murdering, people shooting people and people being arrested and getting out within a month and nothing happening to them.

27. The applicant confirmed he does not have any other fears or concerns about returning to Malaysia, other than his fear of being harmed by these loan sharks.

    Assessment

28. The Tribunal had some concerns about the credibility of the applicant’s evidence concerning the existence of the loan and repayments made. However, country information is to the effect that loan from unlicenced money lenders, typically referred to as ‘loan sharks’ or ‘ah long’ are common in Malaysia.[1] Given this, the Tribunal is prepared to accept that the applicant took out a loan of MYR [amount] in 2010 from an unlicenced money lender or loan shark, that he has made repayments over the last 14 years, and that he currently owes around MYR [amount].

    [1] Largely pandemic-proof, loan sharks are swimming freely', Bernama (Malaysian National News Agency), 28 March 2023; DFAT Country Information Report – Malaysia, 29 June 2021 (paras 3.109-3.118): DFAT Country Information Report – Malaysia, 24 June 2024 (paras 3.149-3.154).

29. However, the Tribunal considers that the applicant has exaggerated or fabricated his evidence as to the conduct of the loan sharks and his fear of harm, and that his evidence about these issues is not credible, for a number of reasons.

30. Firstly, although the applicant told the Tribunal that before he came to Australia he had heard about loan sharks killing people, he did not make an application for a protection visa until over 6 years after he arrived here. The applicant told the Tribunal that he came here on a visa which would allow him to stay 3 months. When the Tribunal asked the applicant if he had done anything to try to make sure he could stay here on a long term basis he said no, not until he met his wife and had a family. If the applicant had been threatened for many years, if he had continued to receive threats after coming to Australia and if he genuinely feared he would be killed or harmed by loan sharks on return to Malaysia, the Tribunal would expect that he would have taken some action to seek to stay in Australia on a more permanent basis than 3 months.

31. When this issue was raised with the applicant, he said he didn’t think about these things, he just wanted to escape from them. Later in the hearing, when specifically asked by the Tribunal whether he had applied for any other visa, he told the Tribunal he did apply for a student visa when he was in Perth (where he lived for about 2 years after first arriving in Australia) but that this was declined, and noted he couldn’t study and didn’t know what he’d applied to study. He said that when he first arrived he didn’t know any English and didn’t know anything, he only heard from his friends that he could apply for a student visa, he had not heard about refugee visas. He also said he did nothing after his application for a student visa was declined (in terms of obtaining another visa). While the Tribunal can appreciate that the applicant may not have understood different visas and options available to him and accepts that a lack of English would create challenges for the applicant, as discussed with him at hearing, had his fears of harm and his evidence about the conduct of loan sharks been genuine, the Tribunal would have expected him to take some action, however small, such as speaking to the Department of Home Affairs or to a lawyer, to secure a longer term or permanent visa. The fact that he did not do so until many years after his arrival and several years after the refusal of his student visa application, strongly suggests to the Tribunal that his evidence about the conduct of the loan sharks and his fear of harm is not credible.

32. Secondly, as noted above, after discussing the delay in applying for a protection visa, the Tribunal specifically asked the applicant whether he had ever applied for any other kind of visa. At that point the applicant told the Tribunal that a friend asked him to apply for a student visa, but it was declined. The applicant told the Tribunal that he didn’t know what he had planned to study and he couldn’t really study, but he applied for the visa to protect himself and so that he had the ability to go back to Malaysia and then return to Australia, for a brief visit, a week or so, if something happened at home. That the applicant wanted to have the ability to return to Malaysia suggests to the Tribunal that he did not genuinely fear that he would be killed or harmed if he returned to Malaysia. It also suggests to the Tribunal that the applicant has exaggerated or fabricated the conduct of the loan sharks in threatening him, including through friends and his mother.

33. When this issue was raised with the applicant, he explained that he was thinking there might be something that might require him to return. He’d be going home ([Town 1]) not to [Village 1] and his family wouldn’t announce him as being back. The Tribunal has considered this response, but in itself it suggests the applicant does not genuinely fear that the loan sharks would be looking for him or able to track him down outside of [Village 1]. Further, the applicant’s evidence about the way he made repayments to the loan sharks from Australia was that he used the bank accounts of friends to transfer money to his family (as he hasn’t had his own bank account until recently), and then the loan sharks would go to his family home to collect the money. He also said that the loan sharks had been to his parent’s house and warned him not to return. On this evidence, the loan sharks know where his family home is, and the fact the applicant gave evidence to the effect would not be concerned about going to his family home if needed (albeit only for a short period) adds to the Tribunal’s impression that the applicant’s evidence about his fear of harm and the reasons for this claimed fear is not credible.

34. Thirdly, while the applicant made a general reference to coming to Australia because of the loan sharks towards the beginning of the hearing, when the Tribunal specifically asked what made him decide to come to Australia, the applicant said that some friends told him that Australia is a good place in terms of work and getting money, and that the government here respects human rights. This evidence does not suggest he left to escape the loan sharks, as suggested in his protection visa application. Rather it suggests he came to Australia in order to earn money and seek a better quality of life.

35. When this issue was raised with the applicant, his response was that he has a friend whose been in Australia for 30 years, but went to [Village 1] all the time, and he heard about Australia from this friend.

36. Fourthly, even on the applicant’s own evidence, the conduct of the loan sharks does not suggest they have any interest in harming the applicant or even actively pursuing him, which indicates to the Tribunal that the applicant has exaggerated or fabricated his fears about returning. While the applicant’s visa application stated he was beaten and tortured by the loan sharks, at hearing he gave evidence that the loan sharks never physically harmed him, and the Tribunal prefers and accepts that oral evidence. Further, he gave evidence at hearing that the loan sharks have never harmed or threated his friends or mother, despite him taking 14 years to pay back only a third of the loan and despite him ceasing to make loan payments when he was married in 2019. They did not track him down in Kuala Lumpur when he lived there, and despite being friends with his friends and asking about him, they have still not worked out that the applicant is in Australia – though he has been here for 11 years. If the loan sharks were really inclined to kill the applicant, to ‘get’ him, to take a hand or a leg or otherwise harm him as claimed, the Tribunal would have expected them to engage in stronger or more aggressive conduct to track him down – such as threatening his friends and / or his mother to obtain this information.

1. When this issue was raised with the applicant, his response was that he just wants to stay in Australia for another 2 or 3 years. The Tribunal notes the applicant has been in Australia for 11 years, and has only repaid a third of the loan. The expressed desire to stay another 2 or 3 years accordingly does not seem connected to the debt (as it seems unlikely he could repay the remaining two thirds of the debt in that period, based on past repayments), adding to the Tribunal’s impression that the applicant’s evidence about his fear of harm and conduct of the loan sharks is not credible.

2. The Tribunal is prepared to accept that when the applicant was in Malaysia the loan sharks may have occasionally made verbal threats when he was late with payments and that since he has been in Australia they may have occasionally asked his friends and his mother about his whereabouts and made threats directed towards the applicant. However, given the loan sharks never actually harmed the applicant and given the concerns the Tribunal has about the credibility of his evidence about the conduct of the loan sharks (as set out above), the Tribunal does not accept that these threats were genuine (in the sense of the loan sharks ever actually intending to carry out threats of violence), and the Tribunal does not accept the loan sharks have made or conveyed these threats with any frequency. The Tribunal also considers, given its concerns outlined above, that the applicant has never believed these threats were or are genuine, in the sense that they would be carried out.

3. The applicant has stated that if he returns to Malaysia, he will live in Sepang with his wife’s family. The Tribunal considers he will continue to make loan repayments when he is able, as he has done in the past. The Tribunal does not accept that the loan sharks will make any real attempts to look for the applicant or otherwise track him down.

4. While the Tribunal accepts the loan sharks may occasionally communicate threats to the applicant via friends or family or ask as to his whereabouts, the Tribunal is not satisfied that this in itself would amount to serious harm for this applicant (noting the Tribunal has found the applicant has not ever believed these threats to be genuine). The Tribunal is also not satisfied that occasionally having threats communicated and having the loan sharks ask about his whereabouts would constitute significant harm. It would not involve the death penalty or arbitrary deprivation of life, and that Tribunal is not satisfied that it would involve the intentional infliction of severe pain and suffering (whether physical or mental) or conduct which causes and is intended to cause extreme humiliation which is unreasonable, such as to satisfy the definitions of torture, cruel and inhuman treatment or punishment or degrading treatment or punishment.

5. Given the concerns and findings outlined above and the fact that, on his own evidence, the loan sharks have never physically harmed the applicant, the Tribunal is not satisfied that there is a real chance the applicant will be killed, beaten, tortured or otherwise harmed by the loan sharks now or in the reasonably foreseeable future. For the same reasons, the Tribunal is not satisfied that there is a real risk that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, the applicant will be killed, beaten, tortured, or otherwise harmed by the loan sharks.

   Concluding findings

6. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

7. 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). For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

8. 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

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

   Stefanie Memmott
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

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

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

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …