2100780 (Refugee)

[2024] AATA 3909

2100780 (Refugee) [2024] AATA 3909 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Andrew Au (MARN: 1686684)

CASE NUMBER:  2100780

COUNTRY OF REFERENCE:                   India

MEMBER:Jessica Henderson

DATE:27 June 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 27 June 2024 at 8:51am

CATCHWORDS
REFUGEE – protection visa – India – complementary protection – borrowed from family, friends and unregistered moneylender to study in Australia – parents would pay interest for three years, by which time applicant would have completed qualification and be working – applicant failed study and was unable to repay – threatened by lender and ostracised by family – error in transferring education provider – cancellation of student visa set aside on review – mental health – not reasonable to relocate – forthright, plausible and credible evidence – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(aa), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of India who applied for the visa on 7 May 2019. The delegate refused to grant the visa on the basis that there was a lack of detailed evidence and information provided by the applicant.

3. The applicant appeared before the Tribunal as it was then constituted on 13 September 2022 (2022 Hearing). The Tribunal as presently constituted has had the benefit of the transcript of the 2022 Hearing. On 20 December 2023 the matter was reconstituted and on 7 March 2024 the applicant again appeared before the Tribunal as presently constituted to give evidence and present arguments.  His evidence was supported by that of a witness, “K”. 

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   Mandatory considerations

5. 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

6. The applicant’s claims before the Department were accurately summarised by the delegate in the following terms:

   ·The applicant borrowed money from family, friends and a third party lender to study in Australia;

   ·As the applicant was exhausted, he did not complete his studies;

   ·Due to various issues, his failed studies and inability to repay the borrowed money has led to a situation where he owes in excess of $100,000.00;

   ·In 2018, the money lender went to his family home and threatened him via his family;

   ·He has been ostracised by his family for wasting money and bringing trouble upon them;

   ·He has not returned to India as he is fearful for his life. He is unaware if his parents have sought help from authorities;

   ·He has nowhere in India to relocate to and lacks the funds to support himself in India;

   ·Authorities in India are easily bribed to look the other way or even assist in covering up crimes; and

   ·If he returns to India, he will be located and possibly killed. He could be beaten and have any income he earns forcibly taken from him.

7. The applicant’s evidence at the 2022 Hearing was that he had borrowed $25,000 from a moneylender to come to Australia.  That figure comprised $14,000 for his first semester of study and a further $10,000 to bring with him; he intended to support himself by working in Australia as permitted on his student visa.  He indicated that the moneylender was a third party that the applicant was introduced to through his uncle and accessed by the use of a man named [Mr B].  He said that he met with [Mr B] at a bus stop.  [Mr B] asked the applicant what he wanted the money for, and the applicant explained his plan to travel to Australia for study.  [Mr B] wanted to meet his family and ensure that his family were willing to pay interest for the three years that the applicant intended to be in Australia.  The arrangement that [Mr B] proposed, and the applicant accepted, was that the applicant did not have to make payment of the principal for three years, during which time his family would pay interest on his behalf.  However, when the applicant returned from Australia he would need to take over the interest payments and make payments towards the principal.  [Mr B] cautioned the applicant that the lender was ‘kind of mafia’ and ‘quite dangerous’.

8. The transcript of the 2022 Hearing reflects that the applicant made the following statement to the Tribunal:

   I just came here to study, but all the circumstances, like, happen here, like, when they cancel my visa, it’s took me two years to prove myself I haven’t done anything wrong, and finally, I win my AAT. And after one month, like, again, I got a problem because I was keep calling my lawyer to ask him what I have to do next. And he said, ‘We have to wait on paperwork from Immigration.’ And I call him maybe four time already; he's saying same thing. And then I call again, and then I call AAT as well.  They’re saying, ‘What Immigration is saying is you have to wait.’ I was waiting, and one day I got a phone call from Immigration I have been overstayed in this country…

   …I couldn’t finish my study because of all these circumstances, and the people I borrow money, they are saying, ‘No, it’s so much money,’ because they keep putting trust.

9. The applicant provided more detailed evidence in response to questioning during the 2024 Hearing.  He told the Tribunal that his dad is [an occupation] in India and that he wanted his son to acquire management skills to advance the family business.  He said that his father currently has a small shop and is unable to expand or engage in a broader sales business because in India running a bigger business requires a university degree. Without one the applicant says he will not be able to build trust with business partners.  The applicant said that he didn’t really know how to set about getting the required qualification so he went to an agent, who started him on a diploma in [Country].  He quickly realised that he needed a bachelor’s degree to achieve his goals.  The relevant student visa in [Country] did not permit him to work, and he didn’t have the money to complete a bachelor’s degree without working to support himself.  He made enquiries as to where he could study on a student visa and work to support himself at the same time, and Australia was the most attractive option.  That part of the applicant’s evidence is internally consistent, plausible, consistent with documentary evidence before the Tribunal and the Tribunal accepts it as fact.

10. The applicant says that he did not have enough money to travel to Australia and he asked around relatives and friends to see how he could borrow it. His parents had sold jewellery and exhausted their borrowing capacity to send him to [Country] and were unable to help him further.  His uncle said that he could introduce the applicant to a money lender that he had an existing relationship with. The applicant never actually met the money lender but he met an intermediary called [Mr B] at a bus stop.  [Mr B] was willing to arrange the loan when he heard that it was for the purpose of studying business in Australia but required a guarantee from family members remaining in India.  The applicant said that [Mr B] indicated that he was willing to take a chance on the applicant because of his uncle’s long standing relationship with the lenders.

11. The alleged loan had a reasonable exit strategy for the applicant in the context of his life and ambitions.  The applicant borrowed $25,000 for a term of 3 years.  During the 3 years the loan would attract interest, which his parents would pay regularly on his behalf.  At the end of the 3 years the loan would start to attract compound interest which the applicant had to make regular payments towards.  However, at that stage he would have an Australian bachelor’s degree in business and/or commerce and be in a position to earn a reasonable income relatively quickly.  The money lender would profit considerably from the risky loan, but there was a good chance that the applicant would eventually repay the principle as well as the interest.

12. The Tribunal has considered country information about private money lending in India. The formal banking system in India is reportedly inaccessible to many Indians, creating a dependence on private lenders charging high rates of interest.[1] In practice, unregistered moneylenders are reportedly the main source of funding for small businesses and individuals including “petty vendors”, into which category the applicant’s father would fall.[2] A survey of about 3,200 informal workers who were walking home from cities to their villages following a lockdown in India in response to the COVID-19 virus in March 2020, found that nearly a third had loans to repay, mainly to moneylenders from their communities.[3] Recent country information suggests that, post-covid, many of these loans are taken out using apps with no contact between the borrower and the lender.[4]

    [1]'India's loan scams leave victims scared for their lives', Priti Gupta & Ben Morris, British Broadcasting

    [2] ‘Tamil Nadu has stringent laws against moneylending at exorbitant rates. Why does it persist then?’, Scroll.in, 29 October 2017, 20200923090257; ‘Inside the World of Indian Moneylenders’, Qazi, M, The Diplomat, 31 March 2017, 20190430105447

    [3] 654 'No work, new debt: virus creates perfect storm for slavery in India' , Nagaraj A and Srivastava, R, Thomson  Reuters Foundation, 13 April 2020, 20200428103710

    [4] 'Digital Loan Sharks in India and Regulatory Framework: An Assessment', The International Conference on Theory and Practice of Electronic Governance, 06 February 2021, p.544, 20230208153458; 'Illegal loan sharks return in the guise of digital lenders', MoneyControl, 23 May 2022, 20230208140832; 'Digital Chinese loansharks spreading wings in India', Economic Times , The, 26 July 2022, 20230209160246

13. The applicant said that his uncle died in 2014, not long after introducing the applicant to his lenders, and the family believed that it was a suicide brought about by pressure from the moneylenders.  The applicant said that his parents had told him that his uncle had intentionally drunk poison. This is consistent with the reports that suicide is relatively common amongst borrowers from loan sharks in India.[5]  The inference that the Tribunal is invited to consider is that the uncle intentionally introduced the applicant to his creditors in a last ditch effort to stave off their pursuit of him.

    [5] 'Inside the deadly instant loan app scam that blackmails with nudes', BBC News, 11 October 2023, 20231012092617; 'TN Police’s Crackdown On Loan Sharks Continue, 3 Arrested', IANS, Hi India, 12 June 2022, 20220616153839; 'India's loan scams leave victims scared for their lives', Priti Gupta & Ben Morris, British Broadcasting Corporation (BBC), 7June 2022, 20220610151509; 'Man ends life due to loan agents' pressure', Deccan Chronicle, 22 April 2022, 20220616153507; 'UP Man Sets Himself On Fire Near Police Station Over Alleged Harassment', NDTV, 17 March 2022, 20220325144824; 'Loan sharks fuel suicide of youth in Hyderabad's Amberpet', New The Indian Express, 13 February 2022, 20220616151441; ‘Man wages battle against loan shark after dad ends life’, The Times of India, 6 January 2022, 20220208160505; ‘Loan sharks on the prowl’, The New Indian Express, 5 August 2021, 20220208154618; 'Man commits suicide due to online lender's harassment in Hyderabad', The Times of India, 18 December 2020, 20210303112611; 'Mumbai:

14. The applicant presented as a credible and forthright historian.  His evidence was supported by that of his friend “K”, who was born and educated in Australia and has been assisting the applicant throughout the Tribunal review process.

15. The applicant’s evidence about the loan is consistent with available country information.  The Tribunal finds his story to be plausible.  There is no evidence to the contrary.  The Tribunal accepts that the applicant entered into a loan in 2014 in the circumstances that he describes, for the amount of $25,000, which amount was to attract compound interest after the elapse of three years.

16. The applicant applied for and obtained a student visa to travel to Australia in 2014.  What happened next is the subject of findings made in another Tribunal decision, which set aside a decision of the Department to cancel the applicant’s student visa.[6]  There is nothing before the Tribunal to suggest that the findings made in that decision are not correct, and the Tribunal adopts them.  The applicant initially enrolled in a degree in [City], Queensland, in 2014 and then transferred his enrolment to [Institution] in Perth, WA. Through a misunderstanding, the applicant ceased to be enrolled in a higher education sector course, resulting in the cancellation of his student visa.  That cancellation was set aside by the Tribunal on review, on the basis that the applicant genuinely intended to pursue higher education study in Australia and had erroneously but genuinely believed himself to be enrolled in higher education study at the time the visa was cancelled.

    [6] Case number 1703595, 22 February 2019, Unpublished

17. The Tribunal decision to set aside the decision to cancel the applicant’s student visa was made in 2019.  Some 5 years had at that stage elapsed since the applicant took out his loan, and the applicant was in default of his promise to return in 3 years and take up the interest payments.  Compound interest had commenced, and the applicant’s parents were unable to service the payments.  From the date of the visa cancellation in 2017 the applicant had been unable to lawfully work in Australia.

18. The applicant says that when he contacted his parents to tell them what was happening in 2017 his parents were very angry with him.  They did not understand what had happened and blamed the applicant for attempting to change his course and location.  The applicant said that his father accused him of having ‘changed’ and said that he didn’t trust him or understand what he was doing. They told him that the moneylenders had come to the house looking for him, and that they had thrown things around.  The applicant said that he stopped contacting his parents entirely, because they were always angry with him and he hoped that a total break with them would protect them from the moneylenders.  The applicant said that none of his friends or family would believe him that he was unable to work or finish his studies in Australia.

19. The Tribunal found the applicant’s evidence about the breakdown of his relationship with his parents to be credible, forthright and plausible.  The Tribunal accepts it as fact.

20. 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.

    Refugee criteria

21. 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.  It is uncontroversial that the applicant in this case is a non-citizen located in Australia.

22. 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).

23. 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.

24. The applicant fears harm for the essential and significant reason that he owes more money than he can repay at a rate and quantum of interest that he cannot afford to service to lenders who he says will unlawfully hurt him when they discover he cannot repay even the minimum interest owing. The loan arose because he wished to better his education to expand his father’s business.  The default in the loan arose because of an error made by the applicant in transferring his studies in Australia which resulted in cancellation of his visa.

25. The feared risk of harm is not for a refugee nexus reason, and the applicant does not meet the criteria in s 36(2)(a).

    Complementary protection

26. 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’).

27. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). 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.

28. The Tribunal accepts from the applicant’s evidence that the moneylenders that he owes money to are unregistered and fall within the group which are described in the country information as ‘loan sharks’. This group is known to engage in harassment, physical violence, or murder when borrowers default on loans.[7]  The same country information indicates that effective police protection is not available.[8]

    [7] 'India's loan scams leave victims scared for their lives', Priti Gupta & Ben Morris, British Broadcasting Corporation (BBC), 7June 2022, 20220610151509; 'Loan sharks booked for circulating morphed pictures of Vikhroli woman', Hindustan Times, 21 May 2022, 20220616152227; ‘Harassed by loan shark, Rajkot man tries to end life’, The Times of India, 30 October 2021, 20220208155808; 'The 'saviour' loan apps that trapped pandemic-struck Indians', British Broadcasting Corporation (BBC), 13 February 2021, 20210216092746; 'Moneylender, 3 others held for abduction', The Times of India, 23 January 2021, 20210303112814; 'DFAT Country Information Report India ', Department of Foreign Affairs and Trade, 29 September 2023, p.40, 20230929154911; 'Inside the bloody world of India's mafia loan sharks', Ray, S G, The Week, 30 March 2018, 20190430102056

    [8] DFAT Country Information Report for India 2023 at [5.7]-[5.8]

1. The applicant has now been in Australia for a period of ten years and has still been unable to complete his studies or engage in any meaningful, well-paid work.  The Tribunal accepts the applicant’s submission that returning to India after 10 years of living in Australia there would be an assumption made that he had been profiting from his time in Australia and wilfully failing to repay his Indian debts in circumstances where he had been in a position to do so.  The Tribunal further accepts that [Mr B], having loaned money to the applicant knowing he was departing India on the promise of his returning in 3 years, may be very angry with the applicant for not returning for 10 years, such anger rooted in penalties that he himself may have had to pay for his perceived poor judgment.

2. 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: s 36(2B) of the Act.

3. The applicant says that he would be located by the loan sharks anywhere in India.  He says that in Indian cities people are very nosy and want to know about new people who move into an area.  He says that in villages everyone knows each other.  He further says that the criminal and gang networks are very clever in India and people are readily located anywhere in India even when they are trying to hide.

4. “K” gave evidence to the Tribunal that the applicant is “one of the smartest and most capable people” that he knows but that he has experienced bad mental health problems since 2017 and that his resilience is “pretty low” at this stage.  The applicant’s lack of resilience was demonstrated to the Tribunal during the hearing; he readily became weepy and presented as being exhausted.  The Tribunal accepts that there is a real risk that the applicant will return to his family home and attempt to reconcile with his family if he returns to India, as a matter of necessity, and that doing so will expose his location to the loan sharks.

5. The applicant accepts that he has a right of abode in Nepal but says that it is well-known in India that you cannot hide from debt-collectors in Nepal; people who attempt to do so are always caught and killed.  There is nothing in the country information to support that proposition, and the Tribunal does not accept it.  The Tribunal does accept, however, that the applicant lacks the resilience to commit to comprehensively hiding his location.  It is not reasonably possible, given all that has happened to him, for him to cut himself off from contact by telephone with friends and family and from social media if he travels to Nepal.  Given the known tactical use of technology by loan sharks, the Tribunal accepts that they will locate the applicant in Nepal.  Country information for Nepal suggests that there would not be effective protection available to the applicant if that happened.

6. The Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of returning to India there is a real risk that the applicant will suffer significant harm.

7. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

   DECISION

8. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

   Jessica Henderson
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

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

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

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

   but does not include an act or omission:

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

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

   …

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

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

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

   …

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

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

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

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

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

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

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

   …

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

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

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

   …

   5H    Meaning of refugee

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

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

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

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

   …

   5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

   5K    Membership of a particular social group consisting of family

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

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

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

   (i)the first person has ever experienced; or

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

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

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

   5L    Membership of a particular social group other than family

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

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

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

   (c)     any of the following apply:

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

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

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

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

   5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

   …

   36     Protection visas – criteria provided for by this Act

   …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   …

   
   

Corporation (BBC), 7June 2022, 20220610151509; 'Farmers Face Debts As Banks Turn Risk-Averse During Pandemic', NDTV, Reuters, 27 August 2020, 20200903110236; ‘Inside the bloody world of India's mafia loan sharks’, Ray, S G, The Week, 30 March 2018, 20190430102056; ‘Inside the World of Indian Moneylenders’, Qazi, M, The Diplomat, 31 March 2017, 20190430105447

Chinese apps offering quick loans, victims being abused', The Times of India, 21 March 2021, 20210325111758;'Bengaluru Techie Kills His Crying 2-Year-Old Daughter As He Had No Money To Feed Her', India.com (India Webportal), 27 November 2022, 20221128083800