2007568 (Refugee)
[2025] ARTA 1121
•6 January 2025
2007568 (REFUGEE) [2025] ARTA 1121 (6 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2007568
Tribunal:General Member F Brady
Date:6 January 2025
Place:Adelaide
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – Religion – Islam – harassment and serious threat from the loan shark – no longer pursuing the loan shark claims – death of her sons – mental health issues – no medical evidence regarding the applicant’s mental state and suicide risk – not satisfied the applicants have a well-founded fear – 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 (the delegate) on 20 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 protection visa on 19 December 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant met the criteria for being assessed as a refugee and was also not entitled to complementary protection.
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 to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. The decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 12 December 2024 to give evidence and present arguments.
The applicant’s sister, [name], attended and gave evidence before the Tribunal.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
The applicant’s application for a protection visa included the following background information:
a.The applicant was born in [Town 1] in the Perak Province in Malaysia on [date]. As such she is currently [age] years old.
b.The applicant held a passport issued by the Malaysian government on [date] 2019. It was set to expire on [date] 2024.
c.The applicant recorded her religion as Islam.
d.The applicant was married on [date] December 1992.
e.The applicant left Malaysia on [date] October 2019 via a commercial flight and arrived in Australia (Melbourne) on the same day. She arrived in Australia on a visitor visa.
The applicant made her application for a protection visa to the Department of Home Affairs (the Department) on 19 December 2019, about 6 weeks after her arrival in Australia.
Evidence before the Department
The following documents were before the Department:
·Protection visa application dated 19 December 2019, setting out details of the applicant’s protection claims regarding monies owed to loan sharks in Malaysia (the loan shark claims);
·The delegate summarised the loan shark claims in the decision to refuse the application for a protection visa as follows:
o They borrowed money from a loan shark and can’t afford to pay them back.
o They were threatened they would be hurt and killed. They came to their house and broke their window and their family car, they also threw paint on their house.
o They tried to seek help from a friend who let them stay with them but they were found and they threatened to hurt their friend.
o They didn’t try to move to another area of Malaysia because they were unemployed and didn’t have enough money.
o If they return to Malaysia they will be found by the loan shark and they will kill them. Their house will also be harmed if they can’t pay the money back.
o They are unable to relocate to another area of Malaysia if they return because they are unemployed and don’t have enough money to move.
o The authorities are unable to provide protection because it’s illegal to get a loan from a loan shark so they won’t help.
·The applicant was not invited to participate in an interview by the Department for consideration of her protection visa application.
The delegate ultimately found that the applicant’s protection claims (i.e. the loan shark claims) did not meet the criteria for the grant of a protection visa.
Evidence before the Tribunal
Prior to the hearing (on 3 December 2024), the applicant wrote to the Tribunal and advised that she was no longer pursuing the loan shark claims as set out in the protection visa application in December 2019.
Instead, she claimed that she was pursuing new claims relating to the deaths of her only two sons in Malaysia on [date] and [date]. The applicant provided a number of additional documents including photographs and written details of the new protections claims.
The applicant confirmed, in her evidence at the hearing, that the loan shark claims as set out in the protection visa application were untrue and she was no longer pursuing them. She advised that she had received assistance in completing the protection visa application form from a “friend of a friend”. She claimed that she could not recall that person’s name.
The applicant reportedly first realised that the protection visa application included the loan shark claims after she received the delegates decision but didn’t know what to do about it. About one month before the hearing a young man that also works in [City 1], who the applicant described as her “adopted son” told her what the protection visa application form, and delegates decision, actually said. She claimed that she did not know exactly what was written on the form regarding her claims for protection and also did not know what was included in the delegates decision until then. In particular, she was not aware as to the reasons for the refusal of her application for a protection visa until that time.
The applicant conceded that she had lodged the protection visa application and provided the required declarations without actually knowing the content of the document.
The applicant then asserted that her protection claims were always intended to be about the death of her sons in Malaysia in 2012 and 2018. Those claims can be summarised as follows:
a.The applicant claimed to have severe depression resulting from the deaths of her only two sons in Malaysia.
b.The Tribunal heard that the first of the applicant’s sons died on [date] 2012 at the age of [age] in a motorcycle accident on the way home from the applicant’s wedding anniversary party. The Tribunal was provided with a copy of the Death Certificate of “[name]”. The date and time of death was [date] 2012 at [time]. The cause of death was recorded as “[deleted]”.
c.The Tribunal heard that the second of the applicant’s sons died suddenly on [date] at the age of [age] years. The applicant claimed that she went into his room to wake him up and found his dead. The Tribunal was provided with a copy of the Death Certificate of “[name]”. The date and time of death was recorded as [date] at [time]. The cause of death was recorded as “[deleted]”.
d.The applicant says that she could not return to Malaysia as being there would remind her of her deceased children and would result in worsening depression.
During the hearing, the applicant provided the following information in her oral evidence:
a.Prior to travelling to Australia, the applicant and her family resided in Pulau Penang.
b.She was the 5 child of 7 children. She has two surviving brothers and 3 sisters. The applicant’s mother is still alive but her father had passed away.
c.The applicant stayed in Melbourne for one week before travelling to Adelaide and then settling in [Town 1] in South Australia.
d.The applicant’s husband is in Adelaide, having travelled to Australia 3 years after the applicant. She said that she does not reside with him as he has no job and she would rather live with her sister.
e.The applicant claimed to speak to her mother via telephone in Malysia 3-4 times per week.
f.The applicant told the Tribunal that she had never worked in Malaysia, having been responsible for home duties.
g.Since the applicant has been in Australia she has worked as a [fruit picker] in [City 1] and [Town 1]. The applicant had travelled to Australia with her sister and at the time of the hearing were residing at [address] at [City 1].
h.The applicant had sought some medical assistance in Malaysia in 2018. It involved advice telling her to go walking and she trialled some medication that didn’t work. The applicant admitted that she had not pursued any medical assistance since that time. She said that she had better in Australia as she been occupied with “work and stuff” since being in Australia – which had distracted her from her feelings about her sons’ deaths.
i.The applicant claimed to be fearful of returning to Malaysia as her mental health will be “badly affected”. Further, she claimed that she would be depressed, sad and might commit suicide if she is forced to return to Malaysia.
j.The applicant did not provide any documentary (medical) evidence about her mental health issues and claimed “severe depression” condition.
The applicant’s sister gave evidence to the Hearing as follows:
a.After the applicant’s first son’s death in 2012, the applicant was very sad and depressed.
b.However, after the second son’s death in 2018, the applicant was much worse as the applicant had depended a lot on the surviving son after the death of his brother in 2012.
c.The Applicant’s sister told the Tribunal that they her sister had been better in Australia because she had been busy with work and walking which means she did not think about her sons so much.
CONSIDERATION OF CLAIMS AND EVIDENCE
ISSUES
The issues in the case are whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or 36(2)(aa) of the Act; that is, whether she is 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 of such a person.
Specifically, whether the applicant has a well-founded fear of persecution in Malaysia as a result of the death of her two sons or for any other reason, or whether complementary protection provisions apply.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Pursuant to section 5AAA of the Act, it is the applicant’s responsibility to specify all of the particulars of their claim for protection and provide sufficient evidence to establish the claim(s). A decision-maker is not required to make out an applicant’s claim for them, nor is the Tribunal obligated to accept uncritically all claims made by the applicant.
Does the applicant have a well-founded fear of persecution in Malaysia and meet the refugee protection criteria in the Act?
The Tribunal finds that the applicant is a Malaysian national in accordance with her passport No [deleted] (which expired on [date] 2024) and the Biometrics Identification Test conducted by the Department.
Until the hearing before the Tribunal, the applicant had asserted that she had experienced issues after taking out a loan from a loan shark – i.e. the loan shark claims.
Before the hearing the applicant distanced herself from the loan shark claims. At the hearing, she confirmed that the loan shark claims were untrue.
The applicant’s protection claims were reportedly always meant to have been related to depression arising from the death of her two sons. The evidence suggests that deaths were accidental and were not brought about by any nefarious intent or characters.
The applicant’s fears for returning to Malaysia are limited to the fact of being in Malaysia will bring back her depressive feelings that had followed the deaths of her sons. She claimed that her depressive feelings had been improved by moving to Australia.
Even though, the applicant admitted to having provided false information in her protection visa application, her evidence to the Tribunal was compelling and consistent.
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[1].
[1] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
· the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
· 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 above; and
· the real chance of persecution relates to all areas of a receiving country.
The Tribunal is satisfied that the applicant genuinely fears returning to Malaysia, as she fears for her mental health if she does so. However, the Tribunal is not satisfied that she fears being persecuted for one of the stated reasons – race, religion, nationality, membership of a particular social group or political opinion. The harm which she fears to her mental health is harm that is not inflicted on her by anyone and is for a personal reason, rather than for any of the stated reasons in s 5J(1)(a) of the Act.
There is no suggestion that there are perpetrators who wish to harm the applicant for any of the reasons set out in the Act.
The Tribunal is also not satisfied that the fear of her mental health worsening is fear of harm for one of the stated reasons. Persecution involves systematic or discriminatory conduct, being the actions or omissions of persons to cause the harm, and the Tribunal could not identify any such action or omission that would cause the claimed harm.
Summary of findings on the refugee criterion
The Tribunal is not satisfied therefore that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of those reasons, were she to return to Malaysia.
The Tribunal is not satisfied therefore that the applicant meets the refugee criterion.
Does the applicant meet the complementary protection criterion?
General principles – complementary protection
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
The legislation provides that torture must be intentionally inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR). ‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted. According to the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 the meaning of intentionally inflicted and intentionally causing in the context of s 5(1) of the Act requires an actual, subjective intention on the part of a person to bring about the suffering by their conduct. Degrading treatment or punishment as set out in s 5(1) is an act or omission intended to cause extreme humiliation which is unreasonable.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
Is there a real risk of significant harm through worsening mental health?
The applicant claimed to the Tribunal that her mental health would worsen if she has to return to Malaysia as she would have to face her traumatic past.
The Tribunal is not satisfied that there would be a real risk of torture, cruel or inhuman treatment or punishment or degrading treatment of punishment due to worsening mental health. All these categories of significant harm require intentional infliction of harm under the legislation. There would be no intention by any party to create worsening mental health. In regard to arbitrary deprivation of life, the evidence does not establish that there would be any denial of access to services which would lead to loss of life.
The applicant would have access to mental health care in Malaysia but the country information suggests that the mental health services in Malaysia are “a notable gap in Malaysia’s otherwise strong healthcare system. DFAT suggest that mental healthcare could be difficult to access and expensive.[2]
[2] DFAT Country Information Report Malaysia, 24 June 2024
When the idea of seeking mental health treatment was discussed with the applicant at the Tribunal hearing, she said that she did not like the medical system in Malaysia as she thought it hadn’t really helped her when she had consulted them in 2018.
The Tribunal notes the applicant’s views in this regard and the country information but observes that in this case, the Tribunal is not satisfied that there is a real risk of significant harm in the form of worsening mental health. This is due to the fact that there would still be no deliberate act, omission or intent on the part of a third party to harm the applicant. The Tribunal is therefore not satisfied that the applicant’s predicted worsening mental health is a real risk of significant harm as required by the Act.
However, the Tribunal also notes that applicant’s evidence that she may commit suicide if returned to Malaysia. This claim was not set out in the written material and there is no medical evidence regarding the applicant’s mental state and suicide risk. On that basis, the Tribunal is not satisfied that there is a real risk of the applicant committing suicide if she is returned to Malaysia.
In any event, in EZC18 v MHA the Federal Court upheld the Tribunal’s finding that the risk of suicide upon return to the UK did not amount to a real risk of the appellant being arbitrarily deprived of his life.[3] The Federal Circuit Court ultimately held that s 36(2A)(a) of the Act is restricted to the risk of being deprived of life by a third party or parties.[4] Besanko J relevantly said “I am unable to see how suicide (tragic as it no doubt is) is an arbitrary deprivation of life within s 36(2A)(a) of the Act”[5].
[3] EZC18 v MHA [2019] FCA 2143, upholding the judgment at first instance in EZC18 v MHA [2019] FCCA 464. The Federal Court held that, in the alternative, there was nothing arbitrary about the removal of the appellant from Australia and the receiving of him by the UK, there being nothing to suggest that the appellant’s removal under s 198 of the Act would be other than lawful: at [47].
[4] Ibid at [47].
[5] Ibid at [47].
Summary of findings on complementary protection
The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the Malaysia there is a real risk of significant harm.
Does the applicant meet the family unit criterion?
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 criteria in s 36(2)(b) or (c) of the Act.
CONCLUSIONS
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).
The applicant does not satisfy s 36(2)(b) or s 36(2)(c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy any of the criterion in s 36(2) of the Act, such that Australia owes her protection obligations.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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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