2007079 (Refugee) - [2024] ARTA 911

2007079 (REFUGEE) [2024] ARTA 911 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative:  Mr John William Galloway (MARN: 9254439)
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2007079

Tribunal:General Member Noelle Hossen
Date:19 December 2024

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

Statement made on 19 December 2024 at 9:50am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – threats from criminal gang – sexual assault – forced drug supply – fear of sex trafficking – fear of killing – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) FCAFC 33
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 on 14 April 2020 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 national of Malaysia, applied for the visa on 7 June 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on the 4 October 2024 and a second hearing on 16 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the hearing.
The applicant provided sufficient evidence of their identity and their passport to the Department. The Department accepted that the applicant is a national of Malaysia. The Tribunal accepts that the applicant is a national of Malaysia.
BACKGROUND
The applicant was born in Georgetown, Pilau Pinang, Malaysia on [date].
She applied for a passport in Malaysia which was issued [in] 2015. She arrived in Australia [in] April 2018. She married her husband [in] April 2018 and they travelled to Australia together.
She made an Application for Protection on 7 June 2018.
She confirmed at the hearing that she had signed the Application for Protection on 2 June 2018. The Tribunal accepts that she cannot speak or read English properly and that her husband organised for a friend to prepare the document.
She met her husband [named] in Malaysia in 2014. She said she met him as she worked in a [business 1].
She had attended school and had gone to [grade] in high school. She said that she worked as [an occupation 1] and assisted her husband in selling [specified] products.
She said that she was one of [number] the children of her family. [Details of siblings, genders and occupations deleted], and they live in the same town as her parents. She said that her sister is into [a business type].
The Tribunal accepts the background information as set out in the preceding 7 paragraphs.
Evidence before the Department
The Delegate summarised in the Decision the applicant’s claim as follows:
The applicant was raped because her father owed money to the loan shark.
She was forced to pass drugs to another buyer.
The applicant reported to the police, but the police did not catch the men who raped her. The men saw her report to the police and threatened to send the applicant to another country.
On return to Malaysia the applicant fears being raped and harmed because her father owes money to a loan shark.
The authorities will not protect her.
The delegate was not satisfied that the applicant is a refugee as defined by section 5(H)(1) of the Act. Therefore, the delegate was also not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in section 36 (2)(a) of the Act.
The delegate also was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that the applicant would suffer significant harm as outlined in section 36 (2) (aa) of the Act.
The applicant was not required to attend an interview with the Department.
Evidence before the Tribunal
The applicant made an Application for Review on the 14 April 2020 and provided a copy of the Decision of the Delegate at the same time to the Tribunal.
The applicant was invited to attend a hearing on the 16 August 2024 to be held on the 4 September 2024.
The applicant filed a Hearing Response on the 23 August 2024 stating that further documents would be lodged.
On the 29 August 2024 the applicant sought to postpone the hearing as the Representative was unavailable due to ill health. The Tribunal accepted the application, and the hearing was relisted for the 4 October 2024.
On the 30 August 2024 the applicant had lodged a Statutory Declaration that she had signed on the 27 of August 2024 before a Pharmacist. The details contained in the document are as follows:
The applicant’s claims for protection are summarised below:
The applicant was raped because her father owed money to a loan shark. She was forced to pass drugs to another buyer.
The applicant reported to the police, but the police did not catch the men who raped her. The men saw her report to the police and threatened to send the applicant to another country. On return to Malaysia the applicant fears being raped and harmed because her father owes money to a loan shark.
The authorities will not protect her.
These statements are by and large correct.
In relation to the claims, I make the following clarifying statements:
At the time in 2016 and 2017 I was living in a government flat in [Town 1], which is [near] the capital of Georgetown on the island of Penang (Pulau Pinang) in Peninsular Malaysia.
My father owned a local small [business 2] called in Malay [name] located in the same area.
The [business 2] was struggling financially and eventually the time came that it was no longer viable as it was mired with debt. My father was no longer able to pay the bills.
On [a day in] March 2017 there was a social event in the capital Georgetown, and my father dropped me there to attend. At that event three young men who I now know to be gangsters came up to me. I do not know their full names.
They were very aggressive and told me that I had to pay back my father’s debts to the loan arranger (loan shark) I would need to sell drugs at my workplace.
I said I could not do that and after some argument they took me to a room where they assaulted me and then raped me.
They then warned me that the loan shark had instructed them that they could rape me again, If I did not listen and sell the drugs as instructed.
I was very scared because of this traumatic experience and went to the police. However, the police did not catch the men who raped me. The men somehow became aware of me reporting the incident to the police and threatened to kidnap me and send me overseas (presumably as a sex traffic victim).
A short time later I confided in a friend who said she would help me to escape, and she gave me money to come to Australia.
On the 10 September the applicant through her representative stated that further documents to be lodged would include further submissions including family composition.
On the 27 September 2024 the applicant lodged further submissions to confirm her marital status and further documents including her passport, marriage certificate, birth certificates of her children and her husband’s Passport.
The Tribunal relisted the second hearing for the 27 November 2024, but the representative indicated that he was unwell, so the hearing was adjourned to the 16 December 2024.
Evidence at the first hearing
At the first hearing the applicant told the Tribunal that she had difficulty reading English properly and that her husband and his friend had organised her Application for Protection. She said that she was asked to tell her story. She confirmed to the Tribunal that the matters raised in her Application for Protection were wrong. At the first hearing the Tribunal told the applicant that it would be necessary for her husband to attend at the Tribunal to confirm her story. It was decided that the matter would be adjourned to another date for a hearing which was 16 December 2024.
She said that her passport had been issued in 2015 as her parents had obtained the passport for her. She had travelled with her husband to [two specified countries]. She had travelled in May and June 2015 for a holiday.
She confirmed that she had met her husband at work. They met in 2014. They were married prior to arriving in Australia. The Application for Protection does not state that they had ever been married. She confirmed that that was another mistake in the Form.
She said that her husband had his own [business 3] in Malaysia. She told the Tribunal that they had only lived together for a period of 10 months before travelling to Australia. There were married [in] April 2018. She had indicated in the application for a Protection that she had lived with her parents from [birth] to 2018. She told the Tribunal that his mother lived in Pinang and that he occasionally lived with his mother.
She said that her husband had difficulties with his mother and that he had sought assistance from a Christian church as he could no longer live with her. Her husband had wanted to be independent and was renting a room. She said that her husband had been living with his brother but unfortunately, he was killed in a car accident.
She told the Tribunal that her family, meaning her siblings were successful as [occupations of siblings deleted]. She said that she did not have the same intellectual ability as her siblings. Her siblings apart from her brother who is [an occupation 2] all live in Pinang.
She said that her parents own their own home, and her father owned a [business 2]. She said that she did not have a lot of contact with her family whilst living in Australia. She did send money to her younger brother’s account, but it was usually organised by her husband.
She said that her husband had some difficulties as his mother was a gambler and had a problem. She had borrowed from loan sharks. She said that her husband sent photos of his children to her family. She and her husband have [number] children who are aged [respective ages]. The children were born in Australia.
She said that she does not have a good relationship with her father. She said that she had some personal difficulties, including in Australia, as she found that people took advantage of her due to her intellectual disabilities.
She was in Australia prior to having the children for approximately 2 years and in that time, she worked as an [occupation 3]. She worked as they owned a small car. The family have now purchased a van.
She was not a very good historian, and she indicated that the husband’s mother had won some money from gambling and had given them both some money to travel to Australia. This fact was contradicted by her husband who said at the second hearing, that they had were given money by one of her friends to travel to Australia and not his mother. She also indicated that she had very little knowledge about her family as she did not contact them, yet she was able to tell the Tribunal that [one] brother was married. [One sibling] has a baby, and, in the end, she said that she had contact with them through Facebook save for her sister who does not have Facebook. Her husband in his evidence said that they both speak to her mother. He also said that they had lived together from 2014 and not for 10 months as she had stated in her evidence.
She said she decided to come to Australia because she felt that someone was following her in Malaysia. She said that she was approached by persons who wanted her to sell drugs. It happened in the car park of her workplace. Apparently, she was then threatened, and they told her that if she did not sell the drugs that would make her go to another country and not come back.
When they arrived in Australia as they travelled together, they lived in a house in [Town 1] and worked on a farm. It was a vegetable farm. She only worked for a period of 2 years thereafter as when the baby was born, she gave up her job.
She said that she left Malaysia because she was being targeted by 3 people. She said that they did not hurt her, and she was very frightened because they were pushing her to sell drugs and threatened to abduct her.
She then said that she had spoken to the police on one occasion, and they had told her that the 3 men had not hurt her yet so they would not get involved.
She said that her father had gambled, and he had borrowed from loan sharks to pay gambling debts.
Evidence at the second hearing
At the second hearing on 16 December 2024 the applicant was asked by the Tribunal what she feared if she had to go back to Malaysia. She said she feared being harmed because she owed a lot of money to a loan shark. She said that they were chasing her to repay. She said that they had threatened to rape her and asked her to sell drugs. She said she was too scared and agreed to sell the drugs and run away from them. She was asked the name of the loan shark. She said she had no idea. She was asked how much money she had borrowed, and she replied that it was her father who had borrowed from them, and she had no idea how much.
She was asked when the last time was, that she had heard from the loan shark. She said the last time that she heard from them she could not recall as it was at her workplace being the [business 1]. She said she was in the shopping mall car park. She was asked whether she could furnish a date and year. She said that she could not recall. She was asked whether it was soon before she came to Australia. She said it was a week before she arrived in Australia.
She kept saying that she had had difficulties with the loan sharks because they had arrived at her workplace on one occasion. They had asked her whether she knew a person being her father. She then said that she organised for her husband to take her to work. However, she later changed story to say that she drove herself back home, but she was very scared. She also said that she never returned to work after the incident in the car park. It was difficult for the Tribunal to follow her story. She said that the loan sharks had told her that her father owed them a lot of money and that she either had to repay or sell drugs for them.
She said she could not tell how much she had to repay because the loan sharks were compounding the interest at 200%. She said she did not know the fixed amount. She was asked whether she had asked her father how much he had borrowed. She said she had not asked her father and she does not know whether the loan sharks have been paid back. She was asked whether she had told her father that she had been threatened by loan sharks. She said that she did not because her father would simply have told her not to get involved.
She said that both her parents are still alive, and they live in Pinang. She confirmed that they own their own home. She said that her husband no longer sends money to her parents.
She said that her father worked in a [business 2]. She stressed that she no longer contacted her parents and said that this has happened since she came to Australia. She said her father can be quite aggressive and yells. She was asked whether the loan sharks had approached any of her siblings.
She said that she is on Facebook, but her sister is not so that might be the reason why the loan sharks had not contacted her. She was then asked whether the loan sharks had contacted her via Facebook. She said she had changed the contact numbers.
She was asked about the times that she had been contacted and she said that they only came to her workplace on one occasion. She said that they had simply asked her whether she knew this person who owed the money. They had asked to sell drugs and if she didn’t do it, they would grab her forcefully. She said she was presented with a small packet of drugs. It was white powder, and she did not sell it as she just dropped it in the bin which was close to a bus stop. She was specifically asked whether the loan sharks had raped her as set out in the application and the statutory declaration which was filed subsequently. She said that she had not been raped.
When she was asked about which bin, she had use to get rid of the drugs she was laughing, and she did not seem fazed by the seriousness of the situation. She said she never went back to work after that date. She was asked again whether the loan shark had raped her. She said no. She said she had not heard from the loan sharks since that day at her work in Malaysia.
She was asked whether she knew that the loan sharks had harassed her parents in any way. She did not have any evidence and did not confirm to the Tribunal that the loan sharks had harassed or mistreated her parents since she has been living in Australia.
She said it was too dangerous to go back to Malaysia. The Tribunal suggested that she and her husband move to Johor. She said she did not want to go back in case she bumped into them.
The evidence that they had approached the police was contradicted and she said that they had tried to go to the police but that they did nothing. She said she discussed it with her friends and her friends had said that she shouldn’t go to the police. She was asked to clarify the position as it was very unclear based on the written material. The Tribunal asked her did you go to the police station? She replied:” no.” She was then asked why she had told the Tribunal that she had tried to go to the police. She did not answer save to say that she did not report to the police because she thought that the police would not do anything.
She was asked about the statutory declaration that she had signed before a pharmacist. She said that she did not understand what was in it. She said that her husband had gone with her. She was asked whether the representative that represents her presently had prepared the documents. The representative sent an email to the Tribunal 12 December 2024 advising that the statutory declaration had been prepared by his office. He confirmed that he had asked the applicant and her husband to confirm that the evidence contained in the declaration was true and correct. They have confirmed that the information was correct and decided to execute the document before a witness.
When her husband came to give evidence, he confirmed that she was not physically raped although they had tried to touch her. He confirmed that they did not report the incident to the police. He was asked why he told Mr Galloway, the representative that she had reported it to the police. They confirmed that they have provided a false statement to the representative.
The Tribunal raised the issue that they could not relocate to another part of Malaysia such as Johor as there are difficulties with Sabah and Sarawak. The Tribunal suggested that they travel to Johor and live there. They can certainly relocate to the other states in Malaysia. Her husband [named] indicated that they both communicate with her mother.
The oral evidence was inconsistent with the written material provided to the Tribunal being the application for Protection and the Statutory Declaration. The evidence of her husband at the hearing was inconsistent with the applicant’s evidence.
The Tribunal does not accept that the applicant was raped. The Tribunal does not accept that the applicant reported the matter to the police. The Tribunal does not accept that the applicant’s father borrowed money from a loan shark. The Tribunal is of the view that the applicant and her husband fabricated the evidence to create a false impression about their fears to return to their home country.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
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). 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).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant will be harmed by loan sharks because her father allegedly borrowed money from a loan shark prior to 2018. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
Refugee criterion
Section 5J of the Act states, that for the purposes of application under the Act a person has a well-founded fear of persecution, if the person fears being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
Claim of fear of a money Lender
The applicant has claimed that there is a real chance that she will be seriously harmed if she is returned to Malaysia because she is in fear of a loan shark who threatened her on one occasion at her workplace prior to her arrival in Australia. She did not know the amount of the loan. She did not know the name of the loan shark as she says that it was her father who had borrowed the money. She stated in her Application for Protection and a Statutory Declaration that she had been raped and that she had reported the matter to the police however admitted at the hearing that this was false.
Given the vague nature of the applicant’s claims and lack of consistent evidence in the written and oral evidence provided by the applicant and her husband at the first and second hearing, the Tribunal does not accept that she has a well-founded fear of persecution from a financier/moneylender in Malaysia. The applicant has been living in Australia for the last 6 years and provided no evidence of ongoing harassment from financiers/money lenders to herself or members of her family who continue to reside in Malaysia. Although the Tribunal accepts that she has said in the Pre-Hearing Form that she had been harassed on one occasion in the past. The likelihood of any future harm is unlikely.
In her written evidence contained in the Pre-Hearing Form, the applicant failed to provide specific details of the alleged loan such as:
a.The date upon which the loans were obtained and from whom.
b.The precise name of the credit firm (Money lender or loan shark).
c.The terms of the loan and the amount including interest.
d.The length of time that she has known that the loans were outstanding and whether she or her father had heard from the money lender or tried to settle the debt.
Due to the limited evidence before the Tribunal, the Tribunal does not accept that the credit firm (money lender or loan shark) would continue to pursue the applicant for an alleged debt which was incurred prior to her arrival to Australia nearly 6 years ago. The applicant did not give evidence that she or her father had tried to repay the money whilst living in Australia. If she was frightened of the loan sharks, she should have made paying them back as a priority.
The Tribunal finds that the applicant could rely on state protection as law enforcement entities operate at both federal and state levels. The country information suggests that the RMP operates over 800 police stations across Malaysia. “Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members ‘responses vary depending on the level of training, capacity, and engagement in corruption. RMP officers are among the lowest paid members of the Malaysian civil service.”[1]
[1] DFAT report Malaysia June 2024.
The Tribunal does not accept the applicant’s evidence that the police will not help her. The country information states that “Usury is illegal. The Money lenders Act (1951) require that moneylenders have a licence and not charge interest rates above 18 per cent for an unsecured loan, which must not compound. Loan Sharking is also covered under section 427 of the Penal Code, which prohibits “committing mischief” and can carry a five-year prison term.”[2]
[2] DFAT report Malaysia June 2024.
The applicant did not provide any updated evidence of any continuing threats to herself and her family from anyone in Malaysia for the last 6 years whilst she has lived in Australia. The Tribunal is of the view that her father’s creditors are no longer interested in the applicant’s debt.
The Tribunal has also considered the fact that the applicant can also rely on the Royal Malaysian Police as based on the country information they are a professional outfit.
Accordingly, based on the applicant’s own evidence and the country information, the Tribunal finds that there is not a real chance that the applicant will be seriously harmed by a money lender if she returns to Malaysia.
Does the applicant satisfy the complementary protection criterion for protection?
Complimentary Protection criterion
The Tribunal also considered whether the applicant meets the complimentary protection criterion under s 36 (2) (aa). The real risk test imposes the same standard as the real chance test applicable to the assessment of well-founded fear.[3]
[3] MIAC v SZQRB (2013) FCAFC 33.
The Tribunal has considered whether as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from money lender/ financier seeking to recover the funds borrowed, by her father from a credit firm (money lender or loan shark) if she is returned to Malaysia, and based on the applicant’s own claims and in the absence of any independent evidence to support her claim that she will be harmed if she is returned to Malaysia the Tribunal does not accept that the applicant may suffer significant harm. As such, it is found that there was no real chance that the applicant will be seriously harmed if returned to Malaysia. As the “real risk test” is the same as the “real chance” standard, it follows that the Tribunal does not accept that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia that there is a real risk of significant harm, including torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment.
Significant harm is different from the concept of serious harm as required by s 5J(4)(b) in the context of s 36(2)(a). The Tribunal has already made a finding that it is unlikely that the applicant will continue to be pursued by a credit firm (money lender or loan shark) to repay funds borrowed by her father. For the reasons expressed above and based on the available country information, the Tribunal finds that there is not a risk of significant harm to the applicant. As a result, the Tribunal finds that there is no real risk that the applicant will suffer significant harm if she is returned to Malaysia. The Tribunal finds that there is no real risk that the applicant will suffer by reason of the recovery of a debt incurred long ago by a member of her family. Based on the available country information the Tribunal finds that as a necessary and foreseeable consequence of being removed from Australia the applicant will not be significantly harmed as required by s 36(2) (aa) of the Act.
The applicant has not advanced any other reason in her written or oral claims that she is owed Australia’s protection obligations. Accordingly, the Tribunal finds that there are no more claims, including based on the applicant’s accepted circumstances to be considered. As such having regard to all the circumstances and findings above considered individually and cumulatively, the Tribunal finds that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is no real risk the applicant will suffer significant harm if she is returned to Malaysia pursuant to s 36(2) aa of the Act.
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)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Dated the 19 December 2024

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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