2016874 (Refugee) - [2025] ARTA 1152

2016874 (REFUGEE) [2025] ARTA 1152 (11 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2016874

Tribunal:General Member M Bruce
Date:11 March 2025

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

Statement made on 11 March 2025 at 12:29pm
CATCHWORDS
REFUGEE – protection visa – Philippines – particular social group – victim of loan shark – physical assault – 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
ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721
Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v SZQRB (2013) 210 FCR 505
MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
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 26 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant who claims to be a national of Philippines, applied for the visa on 14 March 2017.
The applicant’s claim as advanced in their application to the department is that,
a)    The applicant borrowed money from a lender for his business, however he could not afford to make the repayments.
b)    Agents of the money lender beat the applicant and threatened further harm against the applicant’s person if the applicant did not continue to make repayments.
c)    The applicant made a report to the police, however, the police refused to take the report.
d)    The applicant fears physical harm against their person and life from the money lender or their agents if returned to the Philippines.
The applicant was interviewed by a delegate of the Minister for Home Affairs via teleconference on 19 October 2020.
The delegate asked the applicant why his family did not join him in coming to Australia. The applicant stated that he did not have the money to bring them, his family had commitments in the Philippines, and that the harm was posed against him and not his family.
The delegate asked the applicant to explain how he came to be indebted. The applicant stated that he borrowed [amount] Philippine pesos (approximately $[amount] AUD) in August of 2016 as his [business] was suffering and he had other outstanding amounts owing to the bank, on a personal loan, to some of his friends, on his credit cards, and to his children’s school for tuition fees.
The applicant stated that a money lender came to see him from time to time at his business premises offering him a ‘business fast cash loan’ if he ever needed money or wanted to expand his business. The applicant stated that the money lender was congenial and that he informed the applicant that he could loan the applicant between [amounts] Philippine pesos by sighting the applicant’s business permit. The applicant stated that he was hesitant but was discomposed by his significant debts and believed that this would be a way to recover and to upgrade the equipment for his business.
When asked about the terms of the loan, the applicant provided that he had to pay the money back within a year otherwise he would be charged additional interest. The applicant further stated that he was required to pay back at least [amount] Philippine pesos a month. He stated that he was able to pay that amount in September 2016, but was unable to pay anything in October and only paid [amount] and [amount] in November and December 2016 respectively.
The applicant stated that associates of the lender would attend him at his business premises and collect payment in cash.
The applicant was asked when he started to receive threats and stated that in October of 2016, he had asked the lenders associates to abate collection until the next month, however, by December they began issuing threats towards him. The applicant was asked if he was physically harmed and stated that he was hit in the stomach and was slapped across the face.
The applicant was asked why he decided to apply for an Australian visa in October 2016. He stated that his situation was deteriorating, and he was cognisant that he would need to find a solution. It was put to the applicant that his Australian visa was granted in October 2016 but that he did not depart the country until January 2017. The applicant stated he was hoping things would improve in his business and he would be able to get the money but that did not eventuate.
The applicant was asked whether he had explored options to pay this loan back. He stated that he had sought to borrow money from friends (whom he had recently repaid) but they were not disposed to lend to him again as he was late in paying them back previously.
The applicant was asked about selling his business assets. The applicant stated that it is not easy to dispose of the equipment because there is a limited market for it. When asked where his equipment is now, the applicant provided that his wife’s sister has a small storeroom near her house where it is being kept. The applicant was asked whether he could have sold his house and he responded that he had thought about it, but formed the view that it would have been too difficult to sell.
The applicant was asked how he was able to acquire the money to come to Australia. He stated that it cost him 20,000 Philippine Pesos which he put on his credit card, and he arrived in Australia with only $100 AUD.
The applicant stated that he had not paid the lender anything since he left the Philippines. He confirmed that the last time he was in contact with anyone about this loan was in the first or second week of January 2017.
The applicant had confirmed that he had been financially supporting his mother and wife back in the Philippines since working in Australia and it was put to the applicant for comment that, as he had money to send back to his family, he was in a position to service the loan. The applicant stated that it was only him or his brother (who is now in Australia) who had ever been in contact with the lender or any of his associates about this loan. The applicant was asked why he could not contact these people from Australia, and he responded that he did not know how to contact them. When asked why they had not been in contact with the applicant since he had been in Australia, the applicant stated that there was no way for them to contact him here. He explained that they never gave him their contact details and they only had the applicant’s business address and landline phone number in the Philippines.
The applicant was asked why these people had not been in contact with his family in the Philippines and stated that his brother had told him that something had happened to his car and motorcycle which he believed to be caused by the lender or his associates as his brother was sometimes in the office with him and had taken care of the business after he left for Australia. The applicant confirmed that that nothing had happened to his wife or children.
The delegate refused to grant the visa on the basis that the applicants claim to have taken out a loan and to have suffered physical harm and threats of further harm against his person and life for failure to service the debt was not credible.
Applicant’s Claim as Advanced at Hearing
The applicant appeared before the Tribunal on 19 February 2025 to give evidence and state their claim. The applicant’s claim at hearing was materially the same as that advanced in their application to the department and their testimony at hearing was consistent with their interview of 19 October 2020.
At the commencement of the hearing the applicant submitted five articles from various Philippine news agencies. Three of which concerning instances of loan sharking in the Philippines and two concerning the competency of the Philippine Police.
The Tribunal asked the applicant what amount of their debts remained outstanding. The applicant stated that there are two bank loans that have a small amount outstanding that the applicant has bene servicing these loans on minimum repayment. The applicant confirmed that no further payments have been made to the money lender since their last payment in 2016.
The Tribunal asked the applicant if they had any record of this debt. The applicant stated that there was a written agreement but that they were never furnished with a copy. The applicant further stated that all repayments were made in cash directly to the lenders agents and that no receipts were given.
The Tribunal asked the applicant what assets they maintained in the Philippines. The applicant stated that his wife’s sister was maintaining his car and the remnants of his business assets in a small storeroom near her house. The applicant further stated that he retains ownership of a modest property in the Philippines which is vacant.
The Tribunal Noted that these assets could be sold to service the debt. The applicant concurred but noted that the retained business assets are outdated or obsolete and that the car is old and well used. The applicant further noted that the property is modest and of minor value. The applicant stated that, while the assets could be sold, the proceeds would not be sufficient to satisfy the debt.
The Tribunal noted that, on the applicant’s evidence, the applicant nor any members their family have been harmed since 2017. The Tribunal noted that the applicant’s family subsequently joined him in Australia and put it to the applicant that it may form the view that, as the money lender or their agents had not caused harm to any member of the applicant’s family after he departed the Philippines and prior to their departing the Philippines, and that they have received no further threats from the money lender or his agents since this time, there is not real chance or real risk that they would do so if returned.
The Tribunal further noted that the applicant’s evidence is that the harm would be directed at the applicant on the basis of his debt and not on the basis of a refugee ground in section 5J(1)(a).
The Tribunal noted that the withholding of police protection from this harm on the basis of a refugee ground in section 5J(1)(a) may satisfy the refugee criterion in s 36(2)(a).
The Tribunal noted the applicant’s testimony that they had attempted to make a report to the police and that the police refused to take the report. The Tribunal advised the applicant that country information before it from the Department of Foreign Affairs and Trade, the UK Home Office, and the US Department of State indicated that the Philippine National Police is generally competent and that it may form the view that they would not withhold protection from the applicant.
The Tribunal further noted that it may form the view on the same information that, if such threats continued to be made or attempts were made to carry out such threats, that the police and legal system in the Philippines would afford the applicant adequate protection from further threats or attempts to carry out threats.
The applicant was invited to submit further material for the Tribunal’s consideration by 28 February 2025. As at the date of this decision no further submission have been received.
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
Receiving Country.
The Applicant travelled to Australia on a valid Philippine passport that states that they are a national of The Philippines. The Tribunal accepts on the evidence before it, namely a copy of the Applicant’s passport, that the Applicant is a national of The Philippines and finds The Philippines as the receiving country for the purposes of the Act.
Existence of the Debt.
The Tribunal has had regard to the guidance of the Federal Court in SZLVZ v Minister for Immigration and Citizenship[1] that, in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible but are unable to substantiate all of their claims. However, the Tribunal notes that is not required to uncritically accept any or all of the allegations made by an applicant.[2]
[1] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [25] referring to Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, per Beaumont J at 451 where his Honour acknowledged a need for decision-makers to have a liberal attitude in the proof of refugeehood, as claimants may have difficulties proving their allegations citing Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 per Gaudron J at 413 who noted that questions of refugee status usually need to be decided in circumstances which don’t permit facts as they exist in the country of nationality to be precisely ascertained.
[2] Ibid.
The applicant’s testimony was consistent with their claim as advanced in their application to the department and their interview of 19 October 2020.
Having taken into account the overall consistency and coherence of the applicant’s evidence, the Tribunal finds the applicant to have given credible testimony at hearing and accordingly accepts the applicants account of the existence of the debt.
Prior Harm and extent / value of assets in the Philippines
Having taken into account the overall consistency and coherence of the applicant’s evidence as set out above, the Tribunal accepts the applicant’s account of harm suffered and notes that it is consistent with reports from the Department of Foreign Affairs and Trade which note that illegal usury lenders operate in the Philippines and that there are unverified reports of borrowers suffering various forms of grave threats, intimidation, and public-shaming from debt collectors.[3] It is also consistent with the articles submitted to the Tribunal by the applicant indicating that usury lenders operate in the Philippines which the Tribunal accepts.
[3] 'DFAT Country Information Report - The Philippines', Department of Foreign Affairs and Trade, 23 August 2021, 15 section 2.63 – 2.64.
The Tribunal further accepts the applicant’s account of his brother having sustained damage to his car and motorcycle. However, the Tribunal notes the applicant’s testimony that, while it is speculated, there is no evidence to suggest that this damage was caused by the lender or his associates. The Tribunal accepts the applicant’s testimony noting that it is only speculative as to the cause of the damage and, accordingly, the Tribunal gives the accepted damage minimal weight.
The Tribunal further accepts the applicant’s account of the extent and value of their assets in the Philippines, however, for the reasons given below, this finding is of minimal weight.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal accepts that applicant has a fear of harm based upon prior harm and notes the guidance of the High court in Minister for Immigration & Ethnic Affairs v Guo that past events, though not a certain guide as to the future, may provide a reliable basis for determining the probability of their recurrence.[4] However, the Tribunal notes that fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[5] The relevant consideration is therefore to what extent these past events are a guide as to the future.
[4] Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574
[5] Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572
The Tribunal again notes the guidance of the High Court in Minister for Immigration & Ethnic Affairs v Guo that it depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.[6]
[6]Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574–5.
The Tribunal is not satisfied that there is a real chance that the applicant will continue to receive further threats or that attempts will be made to carry out prior threats.
This finding is supported by the Tribunals finding above that neither the applicant, nor members of his family, have received any further threats, nor have attempts been made to carry out prior threats since 2017, and the applicant’s testimony that the lender has no contact details of the applicant or his family beyond the applicant’s former business address and landline phone number associated with it which the Tribunal accepts.

This finding is further supported by the Tribunal’s finding that there are effective protection measures available to the applicant pursuant to section 5J(2). The Tribunal so finds on the basis that it is satisfied that there is protection consisting of an appropriate criminal law, a reasonably effective police force and an impartial judicial system which is durable and accessible to the applicant pursuant to section 5LA(2) of the Act.
The Tribunal has considered the applicant’s submissions regarding the competency of the Philippine Police and accepts that there is a degree of corruption within the Philippine Police; noting that this is consistent with reports of the Department of Foreign Affairs and Trade.[7]
[7] 'DFAT Country Information Report - The Philippines', Department of Foreign Affairs and Trade, 23 August 2021, 29 section 5.6
However, the Tribunal is satisfied on the basis of reports of the Department of Foreign Affairs and Trade and UK Home Office that the Philippine National Police is generally competent, and that judiciary is fair and independent.[8]
[8] 'DFAT Country Information Report - The Philippines', Department of Foreign Affairs and Trade, 23 August 2021,.29 section 5.4; UK Home Office, Country Policy and Information Note Philippines: Women Fearing Domestic Violence, March 2023, pg 18 section 12.2.1 quoting The Australian Embassy in the Philippines
The Tribunal has considered the applicant’s testimony that they had attempted to make a report to the police and that the police refused to take the report. The Tribunal accepts this, however, given the significant period of time elapsed, the Tribunal prefers the recent reports above as the more reliable guide as to the future.
The Tribunal notes also that, were it satisfied that there was a real chance that the applicant would continue to receive further threats or that attempts would be made to carry out threats, such threats or attempts to carry out threats would be directed at the applicant ad hominem on the basis of the applicants debt and not on the basis of race, religion, nationality, membership of a particular social group or political opinion pursuant to section 5J(1)(a).
Accordingly, the Tribunal finds that the Applicant does not meet the refugee criterion in s 36(2)(a).
Does the applicant satisfy the refugee 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).
Having found that the Applicant will not face a real chance of serious harm, the Tribunal is not satisfied that the Applicant will face a real risk of significant harm; the threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) being the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a).[9]
[9] Minister for Immigration & Multicultural Affairs v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; See also MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13 (upheld on appeal in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614) at [19]
This finding is further supported by the Tribunal’s finding that the applicant could obtain protection from an authority of the receiving country, such that there would not be a real risk of significant harm pursuant to section 36(2B)(b) of the Act.
This finding is supported by the Tribunal’s finding above that there is protection consisting of an appropriate criminal law, a reasonably effective police force and an impartial judicial system which is durable and accessible to the applicant,[10] and a report of the US Department of State Overseas Security Advisory Council which notes that the Philippine National Police is a capable force if constrained by limited resources.[11]
[10] Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 at [36].
[11] ‘OSAC Country Security Report Philippines’, Overseas Security Advisory Council (OSAC), 28 September 2023, p.4,
The Tribunal also notes that there has an increased emphasis on enhancing the law enforcement capabilities of the police through a modernisation program and increased funding in recent years.[12]
[12] See ‘PNP strengthens capabilities and service with new mission-essential equipment’, Philippine National Police, 9 August 2023; ‘PNP acquires P485-M firearms, mobility assets’, Caliwan, C L, Philippine News Agency, 15 January 2024; see also ‘New Equipment Ceremony Spotlights Boost for Philippine National Police Capabilities’, Prashanth Parameswaran, The Diplomat, 2 March 2020
The Tribunal notes the guidance of the Federal Court in ABAR15 v Minister for Immigration and Border Protection[13] and has had regard to nature of the potential harm faced by the applicant, the degree of protection afforded by the authorities, and the applicant’s demonstrated ability to obtain protection from the authorities and finds that the level of protection afforded to the applicant reduces the risk of the significant harm to something less than a real one.[14]
[13] ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721 at [60].
[14] Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 at [39] – [40]; ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721 at [59].
The Tribunal has considered the applicant’s submissions regarding the competency of the Philippine Police and accepts that there is a degree of corruption within the Philippine Police; noting that this is consistent with reports of the Department of Foreign Affairs and Trade.[15]
[15] 'DFAT Country Information Report - The Philippines', Department of Foreign Affairs and Trade, 23 August 2021, 29 section 5.6
However, the Tribunal remains satisfied on the basis of reports set out above that the level of protection afforded to the applicant reduces the risk of the significant harm to something less than a real one.
Consequently, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
DECISION
The Tribunal affirms the decision under review.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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