2100784 (Refugee)

[2024] AATA 2567

2100784 (Refugee) [2024] AATA 2567 (12 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100784

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Robert McLaughlin

DATE:12 June 2024

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 June 2024 at 8:36am

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from father’s killers – father murdered after not paying interest on purchase of car – seller’s son and accomplices convicted – after their release, applicant’s house burnt down – relocation to other states and other country – no direct contact from killers but inquiries to cousin – ethnicity – Chinese – limited work and business opportunities – credibility – detailed, consistent and credible evidence of father’s murder – vague claims and evidence about revenge and harm – country information – effective law enforcement – decision under review affirmed

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

CASES
BLS18 v MICMA [2024] FedCFamC2G 462
DQU16 v MHA [2021] HCA 10
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
WAJS v MIMIA [2004] FCAFC 139

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, who claims to be a citizen of Malaysia, applied for the visa on 20 August 2018. The delegate refused to grant the visa on the basis that the applicant was not owed protection obligations by Australia under either the refugee criterion or the complementary protection criterion.

3. The applicant appeared before the Tribunal on 04 June 2014 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The issue in this case is whether the applicant has a well-founded fear of persecution by reason of his being subject to a vendetta by his father’s killers, or by reason of his Chinese ethnicity. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Preliminary matter: Nationality and identity

11. The applicant provided a copy of his Malaysian passport to the Department. The Tribunal accepts that the applicant is who he claims to be and that he is a national of Malaysia. The Tribunal also accepts that the applicant has no right to enter and reside, whether temporarily or permanently, in a third country.

12. The applicant told the Department that his mother is a citizen of [Country 1]. On 15 January 2021, the Department assessed that the applicant was not a citizen of [Country 1] and was only a citizen of Malaysia.

    Claims made prior to the hearing

13. The applicant submitted the following claims to the Department his application for a protection visa in August 2018:

    ·     That his father was killed in Malaysia and the suspect was jailed.

    ·     That the suspect’s family tried to harm him, and that the suspect was due for release in 2020 (‘in 2 years time’, noting the protection visa application was in 2018).

    ·     That the suspect will try to find him for revenge and will seek to kill him.

    ·     That he travelled to [Country 2] in 2015 for safety but was told to leave by the army as a war was coming.

    The hearing

14. At the hearing, the Tribunal invited the applicant to clarify and expand upon his claims. There were three key matters around which the pre-hearing claims and evidence coalesced: The applicant’s claim as to his father’s murder; the applicant’s claim as to harms suffered from the vendetta pursued by his father’s killers prior to the applicant leaving Malaysia; and the applicant’s claim as to anticipated harms if returned to Malaysia.

15. Additionally, at the hearing, the applicant stated that he had also been persecuted on the basis of his Chinese ethnicity.

    The claim in relation to his father’s murder

16. The applicant stated that his father had been murdered in February 2005. This murder was perpetrated by the son of a man who his father had purchased a car from, because the applicant’s father had not paid back the interest owed.

17. The applicant related specific details of the incident as follows:

    ·     His father had originally purchased the car six years prior; it was a [Make, model].

    ·     His father had been invited to tea by the son of the man he had purchased the car from, (who had with him two accomplices), and then disappeared.

    ·     After two days, the applicant reported to the Police that his father missing.

    ·     His father’s body was found two weeks later.

    ·     The killers (the car seller’s son plus the two accomplices) were ultimately convicted, but the Police had changed the ‘story’ that was prosecuted to implicate the applicant’s mother in an extra-marital affair. This was because the Police supported Bumiputera people over Chinese people.

    ·     The applicant’s mother spent two years in prison and was then deported to [Country 1], her country of nationality.

    ·     The three killers were sentenced to 14 years jail but were released after three years (in around 2009).

    ·     The killers later burnt down the applicant’s house in 2009, and regularly thereafter sought information from the applicant’s cousin as to where he was. However, the applicant did not have first-hand knowledge that the revenge-seekers had done this.

    ·     The applicant and his two brothers became orphans when his mother went to jail and was later deported, and the applicant’s youngest brother ([Age] years old at the time) was adopted by a police officer; the applicant has not heard from him again and does not know what happened to him.

    ·     The applicant and his other brother kept moving for fear of being found and lived and worked in every state of Malaysia.

    ·     The applicant worked in [Country 2] as [an occupation] at a [workplace] near the [Country 1] border in August – November 2025 but left in hurry as the [Country 2] Army told him (and others) to leave.

18. The applicant brought with him to the hearing several copies of documents:

    ·     A newspaper article in Mandarin from 2005 detailing the murder of his father; the Interpreter reviewed the article and confirmed it referred to a [Mr A] and his murder.

    ·     In Bahasa Malay – the applicant’s father’s ([Mr A]) death certificate and Malaysian identity card.

    ·     In Bahasa Malay - the applicant’s birth certificate listing [Mr A] as his father.

    The claim in relation to persecution on the basis of Chinese ethnicity

19. The applicant stated that he was discriminated against in Malaysia due to his Chinese ethnicity. In particular, he stated that:

    ·     There is systemic discrimination in favour of Bumiputera in Malaysia.

    ·     If a Chinese person does a thing against a Bumiputera person, they will suffer much, but the opposite is not true.

    ·     The law is not fair to ethnic Chinese.

    ·     Social respect for ethnic Chinese is low.

    ·     Ethnic Chinese businesses only have ethnic Chinese customers, so it is hard to earn a living.

    ·     Due to his Chinese ethnicity, when he became an orphan, he was not supported by the government to go to school, whereas if he had been Bumiputera, he would have been supported in this manner.

20. The applicant did not elaborate on any other specific harms he had suffered due to his Chinese ethnicity, or that he feared on this basis if returned to Malaysia.

    The claim in relation to harms suffered as a consequence of people seeking revenge on him because they were jailed for his father’s killing

21. The applicant stated that he had not suffered any physical harms on the basis of this revenge/vendetta claim. However, the convicted men wanted revenge on him because he had reported his father missing, which had led to their convictions.

22. The applicant stated that his father’s dearth and his mother’s deportation had left him an orphan and that he was not supported to go to school so had to take work. He became [an occupation]. The applicant was [Age] years old in 2005, the year when his father was murdered.

23. The applicant stated that his (unoccupied) original family home was subsequently burnt down by the three convicted killers after their release in 2009.

24. The applicant stated that he had worked in the local area for a period after they were released but had then moved around and worked in ‘every state in Malaysia’. He stated that this was in order to avoid the men who were seeking revenge. He stated that he had never had any contact with them but that they visited his cousin’s house many times (10 times per year) for several years to ask after the applicant’s whereabouts. However, the applicant could not specify how long this continued for and acknowledged that he had no contact with these men.

25. When asked why he thought that these men would still be seeking revenge when he had had no contact with them, the applicant stated that this was his fear. He stated that his brother returned to their hometown in 2016 for Chinese New Year and that he had been seen by these men and then had to flee. His brother came to Australia in 2019.

26. When asked what had prompted him to move to different places to work, the applicant stated it was his fear of discovery by the revenge-seekers. However, he agreed that this was his perception and that nothing had triggered each move in terms of specific notice that the three men had found him.

27. The applicant was asked about his period of work in [Country 2]. He stated that this was a good business opportunity for a good salary that a Chinese businessman in the city where he was then working had arranged. The applicant also stated that he went to [Country 2] to avoid detection by the revenge-seekers.

    The claim in relation to harms feared from the revenge-seekers if returned to Malaysia

28. The applicant stated that he feared being killed, tortured, and/or mistreated by the three men seeking revenge on him. He stated that they had relatives in the government and would be protected if they harmed him.

29. When asked about his ability to subsist if returned to Malaysia, the applicant stated that being ethnic Chinese meant his customer base would only be Chinese and it would be hard to make a living. The applicant agreed that he had [occupation] skills useable in Malaysia but said that his [work sector] skills gained in Australia would not be useful as [work sector tasks are done] differently in Malaysia.

30. When asked where he would live if returned to Malaysia, the applicant stated he did not know. However, he agreed that he had lived and worked in ‘every state of Malaysia’. When asked why he couldn’t live in one of those other places, he stated that he feared that when he registered in that place, the Police would tell his persecutors where to find him. When asked how it was that the Police in different states would be inclined to do that when they had no links to the revenge-seekers, the applicant stated that his experience with his father’s case made him fear this.

    Assessment of credibility and evidence

31. In assessing the credibility of the applicant’s evidence, the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’, or that it is for the reason claimed.

32. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the applicant must provide material, in as much detail as is necessary, to enable the Tribunal to establish the relevant facts as claimed. The Tribunal is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant[1], or to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.[2]

    [1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 170; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 45.

    [2] WAJS v MIMIA [2004] FCAFC 139 at [17].

33. In determining whether an applicant is entitled to protection in Australia, the Tribunal is therefore required to make findings of fact in respect of the claims advanced by the applicant. This may require an assessment of the applicant’s credibility, as is the situation in this case. In this regard, the Tribunal is aware of the need for, and importance of, being sensitive to the difficulties applicants may face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to applicants who are generally credible, even if unable to substantiate all of their claims.

    Overall assessment as to credibility

34. The Tribunal accepts that the applicant gave generally credible evidence on objective matters. His evidence as to the key facts and circumstances in respect of his father’s murder was on the whole detailed, coherent, and consistent with the documents the applicant tendered at the hearing.

35. However, the Tribunal was not satisfied as to the credibility of the applicant’s much less detailed claims as to harms suffered and fears held.

36. Further specific assessments as to the credibility of the applicant’s evidence, which buttress this overall conclusion, are set out below.

    As to the claim regarding the applicant’s father’s murder

37. The Tribunal accepts that the applicant’s father was killed in 2005. This is because the applicant’s evidence on this incident was detailed, credible, and consistent with other material confirming this incident.

38. The Tribunal also accepts that the three men convicted of this murder may have engaged in some revenge-seeking actions at some stage after their release. However, the Tribunal was not able to be satisfied as to any specific incident in this regard, for the reasons set out in more detail below. Also, the Tribunal was not able to be satisfied as to when these men were actually released from prison given the applicant’s claims at hearing and in his protection visa application as to this timing were very different. However, the Tribunal gave the benefit of the doubt to the applicant’s later claim at the hearing that these men were released in 2009.

    As to the harms suffered as a consequence of the claimed revenge-seeking of the convicted men

39. The Tribunal was not satisfied that any revenge-seeking vendetta has continued from 2009 until now. This is for two reasons that were furnished in the applicant’s own evidence at the hearing.

40. First, the applicant, in his oral evidence, stated that he believed that it was the claimed vendetta seekers who burned down the house in 2009. However, he also acknowledged that this was his belief, and not a known fact. Further, when asked, the applicant was unable to detail any other specific incidents of harm attributable to these men and their seeking of revenge.

41. Second, the applicant’s claims as to constant moving because he feared discovery were, as the applicant agreed when asked, based solely on his own perception and fear, not upon any evidence that he was actually being pursued by the revenge-seekers. The applicant agreed that he had had no contact with these men prior to coming to Australia.

    As to the harms anticipated from the revenge-seekers if returned to Malaysia

42. The Tribunal does not accept that the applicant faces persecution from the claimed revenge-seekers if he is returned to Malaysia. This is for three reasons.

43. First, when the matter was put to him, the applicant admitted that he had no current knowledge of the revenge-seekers’ whereabouts, current situation, actual links with officials, or intentions towards him. Other than the applicant’s very general claim on this matter, there was no material before the Tribunal which spoke to this potential harm.

44. Second, although the applicant stated that he could be found wherever he lived in Malaysia due to corrupt Police and the revenge-seekers’ links with such officials, there was no material before the Tribunal to indicate that the revenge-seekers in fact had or have any such reach into or influence with the Police in other states. When put to the applicant, he had no specific response to this point beyond a general assertion that it was possible. The Tribunal also noted that the applicant had in fact never been found by the revenge-seekers in any place where he lived, as the applicant confirmed.

1. In this regard, the Tribunal also noted the country information provided by DFAT, which the Tribunal accepts as highly credible given its official status and provenance. In particular, the Tribunal noted that this information assesses that while the Royal Malaysian Police (RMP) do face corruption challenges[3], the RMP is generally considered an effective and professional force.[4]

   [3] DFAT Country Information Report: Malaysia, 29 June 2021, paras 2.17, 5.5 – 5.9.

   [4] Ibid, para 5.5.

2. In response to this point, the applicant agreed that ‘there are good cops and bad cops’, but that his view was rooted in his father’s case. However, he could not provide any detail as to his claim that the revenge-seekers hold influence of a level indicating that they could access corrupt Police officials anywhere in Malaysia with a view to those Police officials then reporting back to the revenge-seekers on the applicant’s whereabouts.

3. Third, the Tribunal asked the applicant why he thought that Police in a different state, if he reported his fears, would not protect him. The applicant stated again that this fear was based in his experience of his father’s particular case.

4. In this regard, the Tribunal noted that this fear was not consistent with the country information above, and also had never manifested in fact for the applicant in all of the time he lived in Malaysia between 2009 and when he came to Australia in 2016.

   As to the harms anticipated on the basis of Chinese ethnicity

5. The applicant stated that the harms he feared on the basis of his ethnicity were:

   ·     Inability to earn a living as only Chinese people would come to his business.

   ·     The general discrimination in favour of Bumiputera in Malaysia.

6. In regard to these claimed anticipated harms, the Tribunal noted that DFAT Country Information assesses that ‘Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system… or when opening or operating a Chinese Malaysian owned business in the private sector’.[5] This information also assesses that Chinese Malaysians are ‘eligible to access national primary or high school education’, but often choose to attend a Chinese language school.[6]

   [5] Ibid, para 3.12.

   [6] Ibid, para 3.11.

7. This country information also indicates that ‘Chinese Malaysians… are prominent in business and commerce and tend to be wealthier than other ethnic groups in Malaysia’.[7]

   [7] Ibid, para 3.8.

8. These matters were put to the applicant. In response the applicant stated that when he had worked in Malaysia in the past, he had only had ethnic Chinese customers.

9. Based on the high credibility the Tribunal attaches to the country information above, and the applicant’s own evidence that he had in fact been gainfully employed as [an occupation] in many different locations in Malaysia prior to coming to Australia, the Tribunal does not accept that the applicant, if returned to Malaysia, would face official discrimination or societal discrimination of a level to amount to persecution that would deprive him of the ability to subsist.

   Overall conclusion

10. Having considered the applicant’s claims on the basis of all of the material before it, the Tribunal finds that while the applicant has established his claim that his father was murdered, he has not established his claims as to harms suffered or anticipated, either on the basis of a vendetta against him, or his Chinese ethnicity.

11. The Tribunal concludes that there is no real chance that the applicant will face persecution for reasons of his ethnicity, his membership of a particular social group, or for any other s 5J reason if he is returned to Malaysia, either now or in the reasonably foreseeable future.

12. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

    Complementary protection

13. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined by the Act. The Full Federal Court has held that the ‘real risk’ test applicable in complementary protection criterion assessments imposes the same standard as the ‘real chance’ test applicable in refugee criterion assessments. 

14. The Tribunal is ‘entitled to refer and rely upon relevant findings as to the refugee criterion under s. 36(2)(a) in considering the complementary protection criterion under s. 36(2)(aa)’.[8] In this respect, the Tribunal has had regard to the claims as above in the context of complementary protection, but holds the same concerns as to the vagueness, lack of detail, lack of material, and lack of credible evidence in relation to the applicant’s claims regarding harms suffered and anticipated.

    [8] DQU16 v Minister for Home Affairs [2021] HCA 10, [27]; BLS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 462, [47].

15. In this regard, the applicant advanced two particularly relevant claims that the Tribunal assessed against the ‘significant harm’ definition relevant to the complementary protection criterion (s 36(2A)): The fear of being killed or tortured; and the prospect of not being able to find employment and to subsist.

16. As noted above, the Tribunal does not accept that the applicant faces a real chance of being killed, tortured, or of suffering any other harm as specified in s 36(2A). The Tribunal also finds that the applicant therefore does not face a real risk of any of these harms.

17. Second, as to the capacity to subsist specifically, the Tribunal noted again (as was put to the applicant in the context of the refugee criterion assessment) that the country information outlined above indicates that Chinese Malaysians ‘experience low levels of official discrimination … when opening or operating a Chinese Malaysian owned business in the private sector’, and that ‘Chinese Malaysians… are prominent in business and commerce and tend to be wealthier than other ethnic groups in Malaysia’.

18. Additionally, it was the applicant’s own evidence that he had lived and worked all over Malaysia previously, and that he has relevant skills as a basis for employment in Malaysia. In this regard, the applicant stated that he would not be able to work in [work sector] in Malaysia; but he agreed that he could again work as [an occupation]. The Tribunal therefore does not accept that there is a real risk the applicant would not be able to subsist if returned to Malaysia.

19. Consequently, the Tribunal is not satisfied that the applicant faces a real risk that he will suffer significant harm if returned to Malaysia, now or into the reasonably foreseeable future, for any reason.

20. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

    Conclusion

21. 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).

22. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Robert McLaughlin
    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.

    …