2109099 (Refugee) - [2025] ARTA 813

2109099 (REFUGEE) [2025] ARTA 813 (26 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Virgilio Costes (MARN: 1682862)
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2109099
Tribunal:General Member E Chan
Date:26 February 2025

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

Statement made on 26 February 2025 at 10:12am
CATCHWORDS
REFUGEE – Protection Visa – Philippines – fear of persecution from those she loaned the money from – evidence very general – not satisfied that the applicant faces any harm from any persons on account of failing to repay the loan – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 June 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of the Philippines, applied for the visa on 2 October 2019. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owes protection.
The applicant appeared before the Tribunal on 11 February 2025 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing and made submissions at the conclusion of the hearing on behalf of the applicant.
BACKGROUND
The applicant was born in Sorsogon, the Philippines, and is a Filipino citizen.
On [date] September 2019, the applicant arrived in Australia on a visitor visa (subclass 600) and has remained in Australia since that date.
On 2 October 2019, the applicant applied to the Department of Home Affairs (the Department) for a protection visa.
On 21 June 2021, a delegate refused the applicant’s application for a protection visa.
On 16 July 2021, the applicant lodged an application with the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision.
On 14 October 2024, the 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 (Cth) (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.
Evidence before the Department
In her protection visa application form, the applicant claimed she was seeking protection in Australia from the Philippines for the following reasons:
a.Her family sent her to visit her relative in Australia because she was causing too many problems for her family through her study and travelling to [Country 1] twice for her ‘on the job’ training and internship. They spent too much money hoping the applicant would get a job in [Country 1] on the agency’s promise that she would get employment after the training. Instead, she did not receive employment, they spent too much money and they are now in a huge debt.
b.The applicant previously experienced harm in the Philippines. She received a threat that if they do not pay, they will file the case against her and her family. She has experienced bullying from neighbours and friends who say she has just spent the money going to [Country 1] for nothing and she is just borrowing money and not paying anything. However, she was only relying on the agency’s advice that she could get a job.
c.She did not seek help within the Philippines as it was her and her family’s mistake to trust the agency. She did not try and move to another part of the Philippines because they cannot go to another place as her brother and sister are studying and they will have to stop studying until they pay off the debt. Also, her parents work there so they cannot move.
d.If she returns to the Philippines, the people who they owe money to will think she just used the money for nothing and are always threatening them that they will take their house or anything just to be repaid. Another person put a big interest on their debt and if she works in the Philippines she will not earn enough to repay the debt. She spent almost 1,000,000 PHP for her studies for the ‘on the job’ training and the internship that is why she is asking to be allowed to stay and work to repay the debt.
e.She believes she will be harmed or mistreated if she returns to the Philippines by the people she owes money to. In addition to the bullying that she failed to get a job from her ‘on the job’ training and the internship, she will not have peace of mind because they have no means to repay the debt.
f.She thinks the Filipino authorities will protect her, but in this case, it is their fault that she owes money to people and if she does not pay, she will be in trouble.
The applicant also provided the following further information in a document dated 3 May 2021, in response to the Department’s request for further information:
a.In 2019, she was in a deep and dark situation that led her to fly to Australia; she owed someone money and needed to pay it back.
b.In March 2018, she had an internship in [Country 1] that led her to borrow 1,000,000 PHP to support all of her expenses, including the processing of her application. She thought that they were a legitimate lending organisation but it turns out it was just a façade for a big syndicate. She was threatened that if she did not pay on time they would harm and kill her. Her parents reported the incident to the police but no action was taken as the person has a lot of connections with the police in the Philippines. They now know they are a big organisation and that her family do not have enough power against them.
c.She does not want to relocate elsewhere in the Philippines as they were told that the organisation has links throughout the Philippines.
d.Since she has relatives in Australia, she took this as an opportunity to get away from the Philippines.
e.She suffers from anxiety and has had a breakdown due to what has happened. Her parents contacted her to extend her stay in Australia because it is not safe for her to return to the Philippines; they received a text message threatening her if she does not pay her debt immediately.
f.She has suffered significant harm and she will be deprived of her life if she returns to the Philippines. The applicant stated that the threats have been recorded.
The applicant also provided the Department with a copy of a cheque addressed to the applicant from ‘[Ms A]’ dated 8 January 2018 in the amount of 1,000,000 PHP from an account ending ‘[number] and a document purporting to be a copy of a police entry from 11 March 2019.
Evidence before the Tribunal
The applicant participated in a hearing before the Tribunal on 11 February 2025. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is owed protection as a refugee or under the complementary protection provisions as set out above. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and receiving country
The Tribunal accepts the applicant is a Filipino national, that she does not have citizenship or permanent residency in any other country and that the Philippines is her receiving country for the purposes of assessing her protection claims. The Tribunal also accepts the applicant arrived in Australia on [date] September 2019 and has remained in Australia since that time.
Does the applicant satisfy the refugee criterion for protection?
The applicant’s central claim in both her application form and at the hearing is that she fears return to the Philippines as she is not able to repay a loan and has a well-founded fear of persecution from those she loaned the money from.
At the hearing, the applicant claimed that in January 2018, she borrowed money to finance her second internship in [Country 1] because her parents could not finance it. She did not take out a loan for the first internship as it was only three to four months in duration and her parents were able to cover that cost.
She had been told by the agency that after the second internship, the company would hire her so she thought she could repay the debt. However, she did not get a job afterwards and had to go home after 12 months and had no money to repay the debt. As a result, she fears return to the Philippines as she has received some text messages from a person by the name of [Ms A] and others associated with [Ms A] that they will kill her if she does not repay the money. She claims [Ms A] and/or these people have also been calling her but she did not pick up the phone.
Overall, the Tribunal found the applicant’s evidence very general and that she did not know significant details that would be reasonably expected of a person who took out a not insubstantial loan with someone. There was no written agreement. The applicant had little idea of what the terms of the loan were other than that the loan was in her name, it was for the amount of 1,000,000 PHP and that she has made no repayments to date. When the Tribunal asked her what the repayment terms were, she said it did not matter if she repaid the loan in monthly instalments or in full. She was not sure if interest would be charged or not to the loan amount. When asked how she received the money, she said it was transferred into her bank account. She did not know the duration of the loan or the current amount outstanding. The applicant had no record of the text message threats that were allegedly sent to her, she did not know the telephone numbers that were allegedly calling her to make threats and she was not able to recall her own Filipino mobile phone number that she had received the alleged threats on.
When asked how she knew the lender, ‘[Ms A]’, the applicant told the Tribunal that [Ms A] was known to her parents. She did not know how her parents knew [Ms A] but she knew that [Ms A] was female and lived in Northern Sumar, close to her family. The applicant told the Tribunal that [Ms A] loans money to other people however she did not know where [Ms A] got the money from.
The applicant told the Tribunal that she needed 800,000 PHP to cover the cost of her second internship. This amount covered the agency fee, accommodation bond and her insurance. When the Tribunal asked why she did not use the remaining 200,000 PHP to repay part of the loan, she said she needed that for spending money. The applicant advised that she has not made any repayments to date with respect to the loan therefore, it was her understanding that the full amount of 1,000,000 PHP was outstanding.
The applicant told the Tribunal that the [Workplace 1] paid her an allowance but it was dependent on how many hours she worked in the [Workplace 1] on any given week. The allowance paid to the applicant and other interns was less than the hourly rate paid to the other [staff]. From her allowance, the applicant was required to pay a weekly fee of $600 USD which included her ongoing accommodation fee. The applicant advised that throughout the duration of her second internship, she always had sufficient allowance to cover her weekly fee.
According to the applicant, whilst she was in [Country 1], [Ms A] or people working for [Ms A], would contact her parents (and not the applicant) for the money. During this period, every time the applicant spoke to her parents, her parents would say, ‘they need the money’ or ‘they need it back’. In the context of the applicant’s oral evidence, the Tribunal understood ‘they’ to mean [Ms A] and/or her associates. When the Tribunal asked the applicant how [Ms A] or another person working for [Ms A] would contact her parents to ask the applicant to repay the loan, the applicant was not sure. The applicant was not sure whether [Ms A] or the other people working for [Ms A] would contact her parents by phone or whether they would visit them. She was also not sure how many times they contacted or visited her parents. She did not know whether [Ms A] or those people working for [Ms A] ever threatened her parents as her parents never said anything about it. She only knew that they kept asking for the money and when she returned to the Philippines, they ‘forced’ her to repay the money.
When the Tribunal asked the applicant what she meant by ‘forced’, she said that when she returned to the Philippines she had no money to repay the loan and that is when they started receiving the threats. She did not know how they knew she was back in the Philippines but they had been asking her father about her. When she returned to the Philippines, she lived in Central Luzon but visited Northern Sumar one to two times. The applicant told the Tribunal that when she received the threat, she was scared to live in Northern Sumar so she went to live in Manila.
The applicant told the Tribunal that she received the first threat in March or April 2019 on her mobile telephone. In support of this claim, the applicant provided the Department with a document purporting to be a copy of a police note from 11 March 2019. The note reads as follows:
[The applicant], [age] yrs old, female, appeared before this office and requested to put into record that around 4:30PM of March 11, 2019, she received a text message from an unregistered number +[…][number]. The message stated that if she did not pay her debt amounting to Php 2,000,000.00 (Two Million Pesos) she would be put to death. Apparently, [she] has borrowed Php 1,000,000.00 (One Million Pesos) from a certain Madam [Ms A] and this was issued to her through cheque with BDO Cheque No. of […]051. [The applicant] has not been able to pay to the latter for 2 (two) months now hence receiving the text message reiterating the threat from the said person…For record purposes.”
When asked why the loan was in the form of a cheque when she told the Tribunal earlier in hearing that she received the money in her bank account, the applicant said the cheque was deposited with the bank and the money was then placed in her bank account.
When the Tribunal initially asked her about the phone number ending ‘[number] in the police entry, the applicant said it was her telephone number. When asked how they got her mobile telephone number she said she did not know. The Tribunal later pointed out to the applicant that, according to the police entry, the telephone number ending ‘[number] was the reported number for the person sending the threat. The Tribunal then asked the applicant what her Filipino mobile phone number was but the applicant said she could not remember. The Tribunal asked the applicant if she still had a copy of the text message and she said she did not.
When asked whether anything else happened, the applicant said that between March and September 2019 when she left for Australia, she received a further five to six threatening messages on her telephone. She also said they tried to call her but she did not answer. She cannot remember if they used just the one unregistered number or whether there were multiple numbers as she did not answer. When asked how many times they would call her she said the number was always ringing but she did not know how many times. The applicant confirmed neither [Ms A] or any other person ever visited her in relation to the loan. She does not know if her parents continued to receive any calls or visits after she returned to the Philippines from [Country 1] but she knows that she continued to receive calls from those people. She maintained she knew it was them even though she did not recognise the numbers calling her and she did not pick up the phone when those numbers called.
The Tribunal asked why the applicant did not report the five to six further messages to the police. She said that by the time she received those further messages, she had already moved to Manila and that given she had reported it to the police in Northern Sumar, she did not report it to the police in Manila. She does not think the Filipino police will be able to protect her as she reported the threatening text message in 2019 but she continued to receive five to six text messages since then.

The applicant told the Tribunal that she has not made any repayments as she has no contact with [Ms A] or others who may be pursuing the debt. The applicant told the Tribunal she does not know how much is outstanding on the loan; she only knows that she borrowed 1,000,000 PHP. When the Tribunal put to her that according to the police note, she reported that 2,000,000 PHP was now outstanding, she said she could not explain why it was now 2,000,000 PHP. When it was put to her that she told the Tribunal she did not know whether interest would be applied to the loan but yet her protection visa application form said that a person ‘put a big interest on our debt’ she said she knew interest would be applied but she did not know the exact amount. The Tribunal also notes that the police report appears to indicate that the applicant had made some repayments towards the loan but had defaulted on the last two months. This is inconsistent with the applicant’s evidence at the hearing that she has not repaid any of the loan.
The Tribunal then questioned the applicant on aspects of her claim in her protection visa application that were not covered in the hearing or that required clarification. When asked what she meant when she said she received a threat that if she did not pay they would file a case against her and her family, the applicant said she meant a police case and that she does not know whether [Ms A] has filed the case against her with the police but she has not heard anything and has not had any contact from the police in relation to the debt other than when she reported the text message threat in March 2019.
The applicant told the Tribunal that she no longer fears that her brother and sister will have to stop studying until they repay the debt given her brother and sister are currently still studying and the debt is still outstanding in full. The applicant clarified that this was her fear at the time she lodged her protection visa application but that she no longer thinks this is a concern.
The Tribunal also asked why she cannot relocate within the Philippines given the applicant has previously lived in Manila and [Ms A] and others did not come after her. She told the Tribunal she did not think about moving elsewhere in the Philippines; all she wanted was to leave the Philippines straight away as she was scared.
When asked what she meant in her protection visa application form that she experienced bullying from neighbours and friends, she said they would tease or taunt her that she went to [Country 1], was not able to get a job and is now perceived as a failure. The applicant confirmed with the Tribunal that teasing was what she meant by ‘bullying’ in her application form. There was no suggestion that the applicant suffered any physical harm or threats of violence from her neighbours and friends or any other harm beyond ‘teasing’.
The Tribunal accepts that from time to time, the applicant may have received some comments from neighbours and friends about her perceived ‘failure’ to get a job in [Country 1] after two internships and that this may be embarrassing for the applicant, but in the Tribunal’s view, those comments are limited to occasional verbal comments and do not amount to serious harm.
The applicant told the Tribunal that from September 2019 to the present date, since the applicant has been in Australia, she has not received any further contact from [Ms A] or others about the loan. She does not know if her parents have received any threats or contact in that time but yet earlier in the hearing, told the Tribunal that her parents had received a text message threatening her. She is not sure if her parents just do not want to tell her but she has not heard that they have been contacted or threatened despite maintaining regular contact with them via video calls. The applicant said she does not know if the threat is still ongoing but she is still scared.
As discussed above, the Tribunal found the applicant’s evidence very general and wholly implausible that the applicant would agree to enter into an agreement to borrow 1,000,000 PHP without knowing any details about the duration of the loan, the amount of interest to be paid, or the amount and frequency in which it would be repaid. It is also inconceivable to the Tribunal that a person would loan the applicant 1,000,000 PHP without those details being agreed upon. The applicant knew nothing about the person ‘[Ms A]’ other than she was a lady who lived near her parents. For those reasons, the Tribunal does not accept the applicant ever took out a loan from a person by the name of [Ms A] or any other person in the circumstances described.
In the absence of any corroborating evidence, the Tribunal does not accept that the cheque with number ending ‘051 is a genuine cheque or that it had ever been cashed or deposited and has accordingly, given it no weight. Further, given the Tribunal’s finding, the police entry dated 11 March 2019 is nothing more than a self-serving report to which the Tribunal has given no weight. It follows from the Tribunal’s finding that the Tribunal is not satisfied that the applicant faces any harm from any persons on account of failing to repay the loan. The Tribunal also does not accept that the applicant’s parents have ever received any threats from [Ms A] or any other person in the circumstances described.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm, or any harm, if she returns to the Philippines, now or in the reasonably foreseeable future, for the reasons claimed. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the reasons claimed, for the purposes of s 36(2)(a) of the Act.
Mr Costes and the applicant submitted to the Tribunal that the applicant’s personal circumstances have changed since she lodged her initial protection visa application; that she now has a husband and young daughter and urged the Tribunal to take those matters into account. The Tribunal has considered the applicant’s current personal circumstances however they do not alter the Tribunal’s finding that the applicant does not face a real chance of any harm if she returns to the Philippines for the reasons claimed, now or in the reasonably foreseeable future, for the purposes of s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act.
For the reasons set out above, the Tribunal has found there is not a real chance the applicant will experience any harm if she returns to the Philippines, now or in the reasonably foreseeable future, for the reasons claimed.
In MIAC v SZQRB,[1] the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J of the Act.
[1] MIAC v SZQRB [2013] FCAFC 33.
For the reasons given above, given the Tribunal has found the applicant does not face any harm if returned to the Philippines for the reasons claimed, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm as defined in s 36(2A) of the Act for the reasons claimed, if the applicant is removed from Australia and returned to the Philippines. 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.
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) of the Act.
DECISION
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.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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