2108301 (Refugee)

Case •

[2025] ARTA 1422

•

19 March 2025

2108301 (REFUGEE) [2025] ARTA 1422 (19 MARCH 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2108301

Tribunal:General Member R Hampson

Date:19 March 2025

Place:Brisbane

Decision:The Tribunal affirms the decision under review.

Statement made on 18 March 2025 at 3:17pm

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – race – Chinese Malaysian – religion – Buddhism – request for the decision to be made without holding a hearing – fearful of harm from a ‘debt collector’ – no evidence or documents substantiating the debts – not satisfied that the applicant faces a real risk of serious or significant harm – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Administrative Review Tribunal Act 2024, s 106

Migration Act 1958, ss 5, 46, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 June 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 national of Malaysia, applied for the visa on 9 December 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

3.    On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

4.    On 4 February 2025, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing dated 24 February 2025. On 17 February 2025 the applicant advised the Tribunal, by completing a hearing response form and returning this to the Tribunal via email, that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

5.    The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations under the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

Background and receiving country

  1. The applicant claims to be a [age]-year-old national of Malaysia.

  2. The applicant claims he was born in Pulau Pinang, Malaysia, his ethnicity is Chinese Malaysian, and his religion is Buddhism.

  3. The applicant first arrived in Australia on [date] August 2015 on a Business (Short Stay) visa - (Subclass 456) and departed later the same day. He then arrived again on [date] September 2016 on the same visa class. He arrived in Australia again on [date] September 2016 on the same visa type. He has applied for a Protection visa on 9 December 2020.

  1. The applicant provided a copy of his biodata page of his Malaysian passport as part of his protection visa application. The delegate accepted the applicant is a citizen of Malaysia and there is no information before me to the contrary. Therefore, I find the applicant is a citizen of Malaysia and Malaysia is his receiving country for the purposes of assessing his claims for protection.

Evidence before the Department

10.    He applied for a Protection visa on 9 December 2020 and was granted a Bridging visa C on 11 December 2020 with the condition of ‘no work’. The applicant was granted a further Bridging visa with the ‘ability to work’ on 4 May 2021.

11.    On 7 April 2021, the applicant completed a personal identifiers test at an office of the Department of Home Affairs.

12.    The applicants written claims, as made in his application for Protection to the Department of Home Affairs dated 9 December 2020, are summarised as follows in the applicant’s own words in answer to the Departments questions:

  • I left Malaysia because I join the online business investing rich quick skin online failed and owed a lot of money with a bank, personal loan and with a friend. i am bankrupt but that personal loan and friend always find me ask for debt. the personal loan interest plus interest the amount debit up to AUD 120,000.00 until unable to pay.

Did this applicant experience harm in that country or those countries?
            Yes

I experience harm in Malaysia, debt collector always call me fine me at home intimidate me for money
Did this applicant seek help within the country or those countries after the harm?

No

Give details of why this applicant did not try to seek help.

I didn't seek help because I know this is a private issue and no people       can help me because that amount is too high

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

No

Give details for why this applicant did not try to move to another part of the country or those countries.

I dint try to move to another part of Malaysia because they intimidate me if I          leave to another park if they fine me will hit me

Explain what the applicant thinks will happen to them if they return to that country or those countries:

if I return to Malaysia, I cannot clear the debt if debt collector find me will hit          me and disturb my life.

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

Yes

Give details including:

• the type of harm or mistreatment this applicant is likely to experience
            • the person/people who would be responsible for the harm or mistreatment
            • why they would harm or mistreat this applicant.
            if I return to Malaysia if I cannot clear the debt if debt collector finds me will            hit me and always disturb me for the money

Does this applicant think the authorities of that country, or those countries can and will protect this applicant if they go back?

No

Give details about why this applicant thinks the authorities could not, or would not, protect them.

This is a private issue no people can protect me until I can finish the debt

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

Yes

Give details as to where this applicant could relocate.

[1] Department of Home Affairs, Delegates decision record, dated 7 June 2021, page 2.

I honestly don't feel safe in Malaysia, I afraid that they fine me anytime. Therefore, I fear being there and I definitely would not be able to find peace and stability. I hope Australia can protect me give me a new change and new life, Australia is protected country.[1]

13.    In determining the Protection visa application, the delegate considered the Departmental file, Australian case law and specific country information prepared by the Department of Foreign Affairs and Trade specifically for assessing protection obligations.

14.    The applicant was not invited to attend a Protection visa interview.

15.    The applicant did not provide the delegate with any submissions further to his application completed online in which he also answered the questions stating he did not receive assistance from an interpreter or any other person to complete the form.

16.    The delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Malaysia based on his claims nor is he a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia owes protection obligations and who holds a protection visa of the same class as that applied for by the applicant under s 36(2)(b) and s 36(2)(c) of the Act.

17.    On 7 June 2021, the delegate for the Minister for Home Affairs refused to grant the visa on the basis that the applicant did not engage Australia’s protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act.

Evidence before the Tribunal

18.    The applicant applied to the Administrative Appeals Tribunal on 27 June 2021.

19. This is an application for review of that decision made by the delegate to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958(cth) (the Act).

20.    On 4 February 2025, the applicant was invited by email to attend a hearing on 24 February 2025 to give evidence and present arguments. At this time, the applicant was also supplied with a hearing response notice to complete and if he wished to do so to make prehearing submissions up to 7 days before the hearing.

21.    On 17 February 2025, the applicant returned this hearing response notice with his signature acknowledging its completion, indicating by ticking a box on this form that he would not attend the hearing scheduled for 24 February 2025 and requested the Tribunal make a decision without a hearing. The applicant made no further submissions at this time.

22.    On 21 February 2025, the tribunal emailed the applicant confirming his request for the decision to be made without holding a hearing had been accepted and a decision will be made based on the information and evidence before the Tribunal and this decision would be sent to him in due course. No additional evidence to that already provided was submitted or included.

REASONS AND FINDINGS

23.    The Tribunal must consider the following points:

  • Should the Tribunal proceed to decide the matter without holding a hearing?

  • Does the applicant have a well-founded fear of persecution in relation to his home country of Malaysia and meet the refugee protection provisions in the Act?

  • Does the applicant meet the protection obligations under the complementary protection provisions of the Act?

Decision without a hearing

24. The Tribunal for the following reasons decided to make a decision without a hearing. Section 106 of the Administrative Review Tribunal Act 2024 (cth) (the ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing.

25. Section 106(3)(b)(ii) of the ART Act notes the Tribunal may make a decision without holding a hearing when the applicant requests the Tribunal to do so. In this matter the applicant was invited to attend a hearing on 24 February 2025 to give evidence. The Hearing invitation specifically notes ‘that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.’ This Hearing is therefore considered an opportunity for the applicant to present his claims and provide further evidence to support them. He did not choose to do so. Instead, he consented to a decision being made without a hearing. There is no ambiguity in this response. The Tribunal is therefore satisfied that the information provided in the response to hearing invitation notice indicates the applicant has made a request for a decision without holding a hearing of a proceeding within the meaning of s 106(3)(b)(ii) of the ART Act.

26. Section 106(3)(a) of the ART Act stipulates that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the proceeding or hearing of the proceeding are the applicant and the non-participating party.

27. Section 384(1) of the Act stipulates that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act. The Tribunal notes that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Multicultural Affairs.

28. The Tribunal has also considered the statutory objective of the ART as outlined in Section 9 of the ART Act which says:

The Tribunal must pursue the objective of providing an independent mechanism of review that:

(a) is fair and just; and

(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and

(c) is accessible and responsive to the diverse needs of parties to proceedings; and

(d) improves the transparency and quality of government decision making; and

(e) promotes public trust and confidence in the Tribunal.

  1. Section 106(3)(c) additionally requires that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceedings.

  2. ‘Adequately determined’ is not defined in the ART Act. The Macquarie Dictionary defines adequate’ as ‘equal to the requirement or occasion/ fully sufficient, suitable or fit’ and in a legal context as ‘reasonably sufficient for starting legal action’ in the sense of ‘adequate grounds’. The Tribunal does not consider that ‘adequately determined’ means a decision favourable to the applicant, as if it did, sub-paragraph 106(3)(b)(i), which contemplates a decision being made wholly in favour of the applicant, would be superfluous.[2]

    2 Tribunal Number 2017740, Senior Member G. Cullen, dated 1 November 2024.

  3. The Tribunal is of the view that in the context of s 106 and the statutory objectives of the ART, ‘adequately determined’ means that the Tribunal may make its decision without holding a hearing in the proceeding, thereby resolving the proceeding quickly, if it also appears to the Tribunal that this can be done in a fully sufficient or suitable manner based on the evidence before it. [3]

    [3] Tribunal Number 2017740, Senior Member G. Cullen, dated 1 November 2024.

  4. The Tribunal has considered the applicant has been provided with adequate opportunity to provide evidence and present his claims. He has not done so. He has been invited to a Hearing and included in this invitation is an opportunity to present the Tribunal with further evidence of his claims to be submitted up to 7 days before the scheduled Hearing date. The applicant did not avail himself of this opportunity. The Tribunal has also considered s 5AAA of the Act which states it is the responsibility of the applicant to specify all particulars of their claims. For these reasons, the Tribunal finds the issues for determination in this proceeding can be adequately determined in the absence of the parties to the proceeding.

Does the applicant have a well-founded fear of persecution in relation to his home country of Malaysia and meet the refugee protection provisions of the Act?

Protection visa criterion

  1. 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.

  2. 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.

  3. 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).

  4. 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.

  5. 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

  1. 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.

Country of reference (and receiving country)

  1. The applicant provided a copy of his Malaysian passport to the Department. Given this and the fact the Delegate did not indicate any issues with his identity claim or nationality the Tribunal accepts he is a Malaysian national and Malaysia is his receiving country of the purposes of assessing his protection claim.

  2. There is no evidence before the Tribunal to suggest that the applicant has citizenship of any other country, or that he has a right to enter and /or reside in any third country. Based on the information before it, the Tribunal is satisfied that s 36(3) of the Act does not apply.

42.   The Tribunal finds that the receiving country is Malaysia; and on this basis the applicants claims have been assessed against Malaysia.

  1. The Tribunal accepts the following points:

    ·     the applicant is a [age]-year-old man who came to Australia first on [date] August 2015 on a Business (Short Stay) visa - (Subclass 456) and departed later the same day.

    ·     He then arrived again on [date] September 2016 on the same visa class.

    ·     He did not apply for a Protection visa until 9 December 2020 and was granted a Bridging visa C on 11 December 2020 with the condition of ‘No work’. He was granted a further Bridging visa with the ‘ability to work’ on 4 May 2021 due to a claim of financial hardship.

Does the applicant satisfy the refugee criterion for protection?

  1. In his application to the Department the applicant has claimed to be fearful of harm from a ‘debt collector’ in Malaysia as he owes money (the sum of $120,000AUD) from a personal loan, loan from a friend and a bank after a failed online business he established with a friend. He claims to be bankrupt in Malaysia and cannot repay the loan and the mounting interest. He claims the debt collector comes to his home and threatens and intimidates him for the repayment of the debt. He claims not to have sought help because ‘no people can help me because the amount is too high’. He claims to have attempted to relocate within Malaysia, but this failed because he will be found, fined, and hit. He claims if he returns to Malaysia he will be found and hit, and his life will be disturbed.

43. The Tribunal has considered the applicants claims as stated in his protection visa application as his evidence in its entirety; however, it finds that the information provided about the applicant past experiences in Malaysia are insufficiently detailed. For example, there is no detail about the debt collector, the term of the loan, the interest rate, the friend he allegedly borrowed the money with, whether he has paid any of the loan back. He has provided no substantive detail about any of the threats made by the debt collectors or if, in fact, there was any harm. Nor has the applicant sought to provide any evidence or documents substantiating the debts.

44. The Tribunal has before it, material from the Department file, the Tribunal file provided by the applicant in the application for a protection visa; however, given its concerns with the information provided outlined above the Tribunal finds that the applicants claim for protection is not credible.

45. The Tribunal does not accept the applicant borrowed equivalent of $120,000AUD to start an online business that said business then failed and the applicant went bankrupt. It follows that the Tribunal does not accept that on account of this debt the applicant has been threatened, harassed, and harmed by any creditors. Nor has the applicant attempted to relocate to avoid these threats, harassment, and harm from his creditors.

46. Having considered the applicants evidence as has been provided to the Tribunal the Tribunal does not accept, the applicants claim for protection in its entirety and it follows the Tribunal is not satisfied the applicant faces a real chance of harm on these bases or for any other reason, should he return to Malaysia, now or in the reasonably foreseeable future.

47. 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).

Does the applicant satisfy the complementary protection criterion for protection?

48.    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).

49.    In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the act, 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.

50.    As outlined above, the applicant has only provided scant information in his initial protection visa applicant to the department and the Tribunal has not accepted the applicants claims for protection in their entirety; and found that the applicant does not face a real chance of harm, on these bases or for any other reason, should he return to Malaysia now, or in the reasonably foreseeable future. The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion;[4] and it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

[4] MIAC v SZQRB [2013] FCAFC 33.

  1. 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).

  2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

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

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

  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.

…

  1. Protection visas – criteria provided for by this Act

…

  1. 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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