2009320 (Refugee)
[2025] ARTA 1078
•9 April 2025
2009320 (REFUGEE) [2025] ARTA 1078 (9 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2009320
Tribunal:General Member L Luo
Date:9 April 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 09 April 2025 at 2:11pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – Bitcoin scam – fear of sexual assault – criminal gang – fear of killing – attack on home – internal relocation – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505
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[1] of a decision made by a delegate of the Minister for Home Affairs on 29 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Malaysia, applied for the visa on 2 January 2020. The delegate refused to grant the visa on the basis that there are effective protection measures available to the applicant in Malaysia.
The applicant appeared before the Tribunal on 20 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant is [an age] year old Chinese Malaysian woman born in Selangor, Malaysia. She arrived in Australia [in] December 2019 as the holder of an Electronic Travel Authority.
Evidence before the Department
In her visa application, the applicant claimed that she and her friends invested in Bitcoin but were scammed by a malicious group of all their money. This group kidnapped her friends and abused them. She planned to come to Australia to avoid their threats from 2015, but did not come until 2019. She claimed the group is a member of two of the largest gangs in Malaysia. The police will not help because they and other government departments have been bribed by the gangs. The applicant claimed that as a result of this event, all of her friendships were shattered. She is also still being pursued by the group after coming to Australia. If she goes back to Malay, she fears she will be harmed, killed or raped by the gangs.
The applicant was not invited to an interview. The delegate refused the decision because there are effective protection measures available to the applicant in Malaysia.
Evidence before the Tribunal
The applicant did not provide pre-hearing submissions.
At the hearing, the applicant claimed that she was adopted as a baby because her biological grandmother had a preference for girls and there was already an older sister in her family. Her adoptive mother passed away and her adoptive father thought she was rebellious and drove her out when she was [age]. After she graduated from high school, she moved to Kuala Lumpur to work in [year]. In 2014, after breaking up with her former boyfriend, she made a lot of new friends. Some of these friends were very rich and she admired them a lot. She learned that they became rich through investment, so she began to learn about investing. A friend introduced her to a rich man named [Mr A], who wore luxurious clothing and watches, drove a fancy car and lived in a big house. As he was only [age] years old, she asked him how he got so rich. He told her that he invested in Bitcoin and was able to earn a lot each week. He introduced her to the platform he uses and advised her to put in as much money as she could, because the more she invests the more profit she would earn. He also offered to help her buy and sell Bitcoin because the system was complex, and did not charger her for his services. The applicant, who was earning only 2000RM per month at the time, believed that [Mr A] was making quick money and decided to accept his offer to help her invest in Bitcoin. The applicant convinced five friends to join her Bitcoin investment with [Mr A]. She and her friends believed this was a legitimate investment as [Mr A] showed them the website and proof that he earned money through Bitcoin. [Mr A] said that they would be able to earn 50% profit a month if they invest more than 100,000RM. In the first month, the applicant put in 100,000RM and her friends put in 200,000RM (two friends invested 100,000RM together, and the remaining three friends invested 100,000RM together). At the end of the month, [Mr A] distributed 50% profit to the applicant and her friends. In the second month, the applicant decided to borrow money from a loan shark so she could invest more as she believed the profit was very good and she wanted to make as much money as possible.
The applicant claimed that she found the loan shark after seeing a banner on the street advertising quick loans and a number to call. She decided to call them because they offered a 0% interest loan. She told the loan shark she wanted a loan to start a business. The loan shark did not give her a timeframe for paying the money back, they said that she needs to pay it but they will see how she goes with her business. She said they did not force her to pay back any of the loan for the first few months because she lied to them about her business not doing well and asked them to give her more time.
The applicant claimed she borrowed [amount]RM from the loan shark to invest, put in an extra [amount]RM from her own savings and also reinvested the 50% profit from the first month. Her friends also reinvested their 50% profit from the first month. At the end of the second month, the applicant and her friends were distributed 50% of the profit from their investment. They continued to reinvest the profit from the previous month and were distributed earnings until the fifth month, when [Mr A] stopped sending money to the applicant and her friends and blocked them. The applicant said some of her friends had asked to withdraw their money and that was why he blocked them. She said they reported this to the police but were ignored. She said that she did not have a copy of that report.
The applicant claimed that, shortly after [Mr A] stopped distributing the earnings to the applicant and her friends, they discovered that he was connected to a gang called [Gang name]. The applicant claimed that the loan shark through which she borrowed money was also connected to this gang, and that was the reason they did not demand the money back straight away because they knew she was involved in the Bitcoin investment scam. She claimed that [Mr A] worked with the gangsters to set a trap to cheat the applicant and her friends. The gangsters started to target the applicant’s friends by kidnapping them for ransom. The applicant tried to run away, but they hit her face which resulted in [an injury] on her face. She claimed that they said it would be easier to find her that way. The applicant said that she and her friends reported the kidnapping to the police but again they did not help. The applicant claimed that the gangsters had already bribed the police.
The applicant claimed that the gang kidnapped three of her friends. One was a woman called [Friend A], who invested in Bitcoin with the applicant. The other two friends were called [Friend B] and [Friend C]. They were not involved in the Bitcoin investment but were from rich families and were kidnapped for ransom. One friend’s family paid the ransom and was released, the other’s family did not pay the ransom and that friend was tortured.
The applicant claimed that because she did not have family who could pay ransom, she ran away to avoid being caught. She escaped by bus and train. She said in order to avoid the gang, she moved a lot and moved to all 13 states of Malaysia, but in each state the gangsters had connections with each other and would find her.
At the same time, the applicant claimed that the loan shark demanded that she repay [amount]RM as they said that the interest had now increased to [amount]RM. She also claimed that the loan shark came to her house and poured red paint on the house. They left a note in front of her house with her photo ID and that she owed money. They also wrote something along the lines of “it’s related to your life, please return the money to us”. At the time she was renting a room and the red paint affected her room mates and landlord and they asked her to move out. She moved to a nearby place. Her friends also asked her to give money back to them because they blamed her for the problems from the Bitcoin investment. They didn’t harm her but asked her to give their money back to them.
The applicant claimed that she moved a lot between 2014-2019 to avoid the loan shark. No matter where she moved, they would find her. She did not know how they found her but assumed it’s because they had members of the gang living in all states. She said each time they found where she lived, they would pour red paint on her house, leave threatening notes to kill or rape her if she didn’t repay the money, and sometimes set fires outside the house. In 2016, they found her and used an iron bar to threaten her by waving it around and then it hit her face, causing two very deep cuts. She said they also grabbed her hair and kicked her legs causing bruising. She claimed she went to the doctor to get the cuts on her face sanitised, but refused the doctor’s offer to stitch the wounds because she was worried it would look ugly. She did not have a doctor’s report to verify this. She also claimed that she went to the police three times, twice after the loan shark poured paint and once after they tried to set her house on fire. She claimed that the police made a report and asked her to go home and wait for further contact but did not contact her. She did not have copies of these reports.
In 2019, she claimed that the loan shark poured petrol in front of her house to set it on fire. She claimed that they knew she was in the house and that a neighbour called the fire brigade. After that she immediately applied for a passport and visa to Australia, and left a few days later on the first flight she could book to Australia. She claimed that she chose to come to Australia instead of another country nearby because she wanted to be further away from Malaysia for her safety.
She claimed that even in Australia, she has seen her name on social media showing that they were still looking for her. She claimed that she saw Facebook posts saying they will come to Australia to look for her, because they have connections with the Malaysian government and know that she is here. She states that she moved to regional Victoria instead of Melbourne because she was worried they would find her in a big city. She does not know how much money she now owes them, but thinks it would be enough for them to kill her.
The applicant also claimed that she cannot go back to Malaysia because of unfair treatment towards other ethnicities. She claimed she was mistreated as a Chinese Malaysian and that in high school she was told to go back to China. She says she often sees on the news that there is discrimination against the Chinese.
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 there is a real chance or real risk that the applicant will be harmed if she returns to Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
I accept the applicant is a Malaysian citizen and has no citizenship of any other country. I find that Malaysia is the receiving country for the purpose of this review.
I accept the applicant is Chinese Malaysian of Buddhist faith. I accept the applicant was adopted and does not have a relationship with her adoptive or biological family, and has had no contact with them since arriving in Australia.
Bitcoin scam and fear of harm from loan sharks and gangsters
I accept the applicant had some knowledge of the Bitcoin investment scheme and her friends invested in Bitcoin. However, I do not accept she invested in Bitcoin herself or was scammed in a fake Bitcoin investment scheme by members of a gang. It follows that I do not accept she borrowed money from a loan shark or was harmed by gangsters or the loan shark. The applicant’s evidence about the loan shark and gangsters was vague, confusing and lacked corroborating evidence. She had no documentary evidence or witnesses to support any of her claims. It is not the Tribunal’s role to make the applicant’s claims for her, nor is the Tribunal required to uncritically accept all of her claims.
The applicant’s evidence about the Bitcoin investment was reasonably detailed and consistent. She knew the name of the website that was used and was able to consistently describe how the profits from each month were distributed and then reinvested. She described convincing her friends to invest in Bitcoin and she gave the names of some of those friends. She also described her friends being split into groups to jointly invest for greater returns. On this basis, I am prepared to accept the applicant has some experience investing in Bitcoin and she convinced her friends to invest in Bitcoin because of her own experiences. However, I do not accept that the applicant was involved in the investment herself. When explaining the reason for investing in Bitcoin, she repeatedly said that she was envious of her friends’ luxury lifestyles and wanted to be like them. She spoke in detail about [Mr A’s] wealth and the material goods he owned and how much she wanted to have that kind of money. She said she wanted to earn a lot of money quickly as she was only earning 2000RM a month while paying 450RM in rent. She said that on her salary at the time, there was no way she could afford to buy LV and that was one of the reasons she was envious of her friends’ luxury lifestyles. However, she then claimed that she initially invested 100,000RM of her own money and then a further [amount]RM of her savings into the Bitcoin scheme. The applicant did not at any stage indicate that she had access to money from family or other friends, nor did she discuss how she could save that much money from her salary and expenses. Her reference to having [amount]RM was only in response to further questioning about the mechanics of the Bitcoin investment, rather than spontaneously volunteered information. Instead, she repeatedly spoke about the luxurious lifestyle she wished she could have and how it was not achievable on her own salary at the time. If the applicant already had [amount]RM in savings, which is not a small sum of money, I would expect her to have talked about those savings in some detail rather than just mentioned in passing when discussing her Bitcoin investment. Instead, she repeatedly focused on how much money she wanted to make because her earnings were so low and would return to this point multiple times during the course of the hearing even when unprompted by any questioning. This gives the impression that she did not have significant savings at the time and I find that she did not. Accordingly, I accept that she wanted to make money quickly because she was envious of her friends’ luxury lifestyles and she invested some money into Bitcoin to make money, but I do not accept that she had [amount]RM in savings with which to invest in the particular Bitcoin scheme as claimed. As I do not accept she made an initial investment of 100,000RM into Bitcoin, it follows I do not accept that she was so pleased by the investment returns that she took out a loan from a loan shark to make a further investment. Therefore, I find that she was not and will not be harmed by a loan shark for this reason.
I have considered whether the applicant was nevertheless harmed by gangsters as a result of her friends’ more significant Bitcoin investment. I do not accept her friends’ investment was a scam or a trap set by the gangsters and [Mr A] for the applicant and her friends. Based on the applicant’s evidence, the applicant’s friends consistently received returns on their investment each month which was deposited directly into their bank accounts. Her friends then chose to reinvest that money each month. By the end of the third month, the applicant’s friends had received a return that was higher than their initial investment ([amount]RM). This pattern of receiving returns and reinvesting those returns continued for 4 months without any problems. If the investment had been a scam to get as much money as possible from the applicant’s friends from the beginning, I would expect there not to have been such significant returns consistently deposited into bank accounts as this did not provide an incentive for the applicants’ friends to invest more of their own money, nor was it a guarantee the applicant’s friends would continue to invest. The applicant also agreed that the investment was legitimate in the beginning as the promised returns were received each month. However, I am prepared to accept that, after the fourth month, [Mr A] stopped depositing money into the applicant’s friends’ accounts and subsequently was uncontactable. I do not accept that [Mr A] was associated with a gang and that, following the end of the Bitcoin investment, the applicant’s friends were targeted by gangsters. The applicant’s evidence about how she knew he was involved with a gang was vague and unconvincing. She simply said that she knew he worked with a gang to set a trap for her and her friends but could not explain how she knew, and did not provide any documentary or witness evidence to corroborate her claim. I find that her assertion about knowing he was involved with a gang to be purely speculative.
I do not accept the applicant’s evidence that her friends were kidnapped by gangsters because they stopped investing in Bitcoin. Although the applicant gave the names of friends who were kidnapped, she was unable to explain how she knew the kidnappings were related to the Bitcoin investment other than that the claimed kidnappings happened after the Bitcoin investment was finished. She claimed that her friends are rich and were kidnapped for ransom and that two of the three friends that were kidnapped did not invest in Bitcoin. When asked why other friends who had invested in Bitcoin were not kidnapped, she claimed that the gangsters knew she had rich friends because of her involvement in Bitcoin and because she stopped investing in Bitcoin, they started targeting her other friends for money. The applicant’s explanation of how she knew the kidnappings were related to the Bitcoin investment was circular and made little sense. Based on this evidence, I find that the claimed kidnappings were not related to the Bitcoin investment. I am prepared to accept the applicant knew, or was friends with, people who had been kidnapped, but I do not accept that the kidnappings were related to the applicant’s involvement in Bitcoin and I do not accept that the applicant was targeted or harmed in any way by the people who kidnapped her friends. As the applicant repeatedly indicated that she did not have any money or family with money, I find that she was not in danger of being kidnapped for ransom.
I find that the applicant was not harmed by loan sharks or gangsters because of her or her friends’ involvement in Bitcoin investment, and I find there is no real chance she will be harmed if she returns to Malaysia now or in the reasonably foreseeable future for these reasons.
Race discrimination
The applicant’s claims about race discrimination relate to her experience of being bullied in high school by other students. When I discussed DFAT country information which indicates there is no official discrimination against Chinese Malaysians,[2] the applicant said that Malays are discriminatory in real life. She said that ethnic Malays receive preferential treatment at university and when applying for loans. She did not claim that she had been discriminated against or harmed because of her race, she did not claim that she applied for university or applied for any official loans. I accept that she was bullied in high school and racist remarks were said to her, however she has not experienced race discrimination since high school and did not have any problems with making friends, finding accommodation or finding work when she lived in Malaysia. Based on the applicant’s past experiences in Malaysia and information in the DFAT country report that indicates Chinese Malaysians may experience low levels of official discrimination when attempting to enter university, join the civil service, or operate or open a business in the private sector,[3] I find that there is no real chance the applicant will be harmed if she returns to Malaysia now or in the reasonably foreseeable future because of her race.
Applicant’s overall profile
[2] DFAT Country Information Report Malaysia, 24 June 2024, p15.
[3] DFAT Country Information Report Malaysia, 24 June 2024, p16.
I have considered whether the applicant would face a real chance of harm on the basis of her religion, gender, lack of family support or overall profile.
DFAT country information states that the Malaysian constitution guarantees freedom of religion,[4] Buddhists are generally not at risk of societal discrimination[5] and discrimination against women is banned under the constitution.[6] The applicant has also not made any claims of harm on the basis of her religion or gender. In relation to the applicant’s lack of family support, she gave evidence that she left her adoptive family when she was [age] and moved to Kuala Lumpur in [year]. From [then] until she came to Australia at the end of 2019, she lived with a boyfriend, with house mates or on her own. She did not have any difficulties living without family support during that period and I find that she will continue to have no difficulties in that regard if she returns to Malaysia. Accordingly, I find that, if the applicant returns to Malaysia now or in the reasonably foreseeable future, there is no real chance she will be harmed on the basis of her religion, gender, lack of family support or overall profile.
[4] Ibid, p19.
[5] Ibid, p26.
[6] Ibid, p30.
Does the applicant satisfy the refugee criterion for protection?
For the above reasons, I find that there is no real chance the applicant will suffer serious harm if she returns to Malaysia now or in the reasonably foreseeable future. Accordingly, she does not have a well-founded fear of persecution under s 5J(1) and is therefore not a refugee under s 5H. The applicant does not satisfy the refugee criterion under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
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).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
For the above reasons, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. Accordingly, she does not satisfy s 36(2)(aa).
CONCLUSION
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) and 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.
Date of hearing: 20 February 2025
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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