2118807 (Refugee)
[2025] ARTA 1252
•23 May 2025
2118807 (REFUGEE) [2025] ARTA 1252 (23 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2118807
Tribunal:General Member B Gogarty
Date:23 May 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 23 May 2025 at 10:26am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – physical assault – fear of detention – employment – attack on home – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZGIZ [2013] FCA 427
MIAC v SZRKT [2013] FCAFC 80
MIEA v Wu Shang Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Mohamed v MIMA (1998) 83 FCR 234
MZXRY v MIMA [2006] FCA 1475
Randhawa v MILGEA (1994) 52 FCR 437Any 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
The applicant is a Malaysian national who applied for a protection visa on 10 August 2021. On 8 December 2021 a delegate of the Minister for Home Affairs refused to grant the visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 10 December 2021, the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of that decision. As the review was not finalised by 14 October 2024, when the AAT became the Administrative Review Tribunal (the Tribunal), the application for review to the AAT is taken to be an application to the Tribunal.[1]
[1] By virtue of the operation of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The applicant appeared before the Tribunal on 21 May 2025 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Quotes in this decision attributed to the applicant from the hearing are his statements as they were interpreted to the Tribunal.
At the hearing the applicant confirmed that claims made in his original application were true and correct, and sought to elaborate on those claims in his oral evidence. The Tribunal has found that the applicant’s written claims were textually and substantively similar or wholly identical to claims made by applicants in earlier, unrelated cases. The applicant was unable to provide the Tribunal with a cogent and compelling explanation for this. The Tribunal has concluded that the applicant’s written claims, and the oral evidence he gave in support of them are not genuine or reliable. It has found that there is no other objectively credible evidence before it to indicate that the applicant satisfies the criteria for protection under s 36 of the Act. The evidence and reasons for that conclusion are set out below and are the basis for the Tribunal affirming the delegate’s decision.
BACKGROUND
The applicant is Malaysian citizen, who, at the time of the hearing was [age] years old. He was born in Sarawak where he grew up and attended school until [grade]. Initially the applicant said he had never left that state of Malaysia until coming to Australia, but later stated that he had lived and worked in [Country 1] for around six years. The Tribunal finds the applicant has lived in Sarawak for a substantial proportion of his life, but also spent significant time outside of Malaysia in at least one other country before coming to Australia. The applicant told the Tribunal that he had experienced significant periods of unemployment in Malaysia, including for the [number] years before he came to Australia. However, he also told the Tribunal that he had worked in casual jobs over that time. He said that he was unable to support his nuclear family on the casual income and often relied on his siblings for financial support and his parents for accommodation. The Tribunal makes no findings of fact in relation to the applicant’s employment before coming to Australia but accepts his family has supported him at various times.
The applicant is married to a Malaysian woman who currently lives in his parent’s home in Sarawak. The couple have [number] children, [ages and gender specified], all of whom also live with the applicant’s parents in Sarawak. Neither of the applicant’s parents are currently employed, and his father, who is retired, is entitled to a Malaysian [pension]. The applicant has [secified family members] who live in Sarawak and [Country 1]. His evidence, which the Tribunal accepts, is that the family are close-knit and have, throughout all their lives supported each other in financial and various other ways.
Movement records indicate that the applicant arrived in Melbourne, Victoria [in] January 2017 on a tourist visa. He told the Tribunal that he rented a room in Melbourne and went “sightseeing” holiday to various places in Victoria, including [deleted]. The applicant did not bring his family to Australia on his holiday. Asked how he had supported himself or paid for his ticket given his asserted long-term unemployment in Malaysia, the applicant said that his parents had paid for his flight and lent him money. At another point of the hearing the applicant said his early “sightseeing” and later itinerant work was supported by friends who live in Australia.
The applicant was asked if he had worked between arriving in Australia in January 2017 and his application for protection in August 2021. He initially said he had not, but eventually agreed that he had, in fact, worked casually in a range of labouring and [other] jobs from around early 2018. Separately he said the casual work was in regional places such as [towns named].
The applicant confirmed he had no significant Australian debts such as credit cards or loans and said he had not purchased significant assets while in the country.
Evidence before the Department
Departmental records indicate that the applicant made a valid application on 10 August 2021, more than 4 years and 7 months his arrival in Australia. In his original application for protection the applicant made the following claims:
“Although the interest was very high, we have no choice. One day the underground bank sent people came to my home to collect money. They forced my parents to repay money and threaten us. Even worse, they smashed all goods of home, I and my parents were beaten by them because unable to repay money. After that, I called the police, but the police only let us to wait, and then we did not receive any results. Therefore, I wrote public letter to distribute, to hope that get society's attention and help. My friend told me that the gangdom was the protective umbrella of the underground bank, they also colluded with the police. After the gangdom knew my behaviour, they sent police to catch me. I was so scared, escape from Malaysia and fled to Australia.
…
The underground bank and gangdom are colluded with the police. They protect with each other. The Malaysia government is corruption. They only care their own benefits.
If I return to Malaysia, I will be caught by the police. The underground bank and gangdom are colluded with the police. Once I went into prison, I will be persecuted, and even I will die.
If I go back Malaysia, I will be persecuted by the police. The police and officials were colluded with each other. Once I was caught, I will suffer persecution from both on physical and mental. How the authorities will protect the me as a civillians. The authorities are also seeking for protection.
I will not relocate until my problem are solve.” [Mistakes in original, all-caps removed and case corrected]”
The Tribunal notes that these claims are textually and substantially identical to claims made by unrelated applicants in a number of reported and unreported decisions of the Tribunal and AAT.[2] In at least one case the applicant’s claims set out in his original application are verbatim identical to those found within each equivalent part of the application form for protection in an unrelated matter.[3] Prior to the hearing the Tribunal therefore flagged the original application as potentially incorporating boilerplate claims; that is claims drawn from sources other than the applicant’s memory, experience or thoughts which are copied and represented as if they are the applicant’s memory, experience or thoughts.
[2] See e.g. ART Case Number: 2202422 (Unreported), AAT Case number 1836362 (Unreported); 1825521 (Refugee) [2024] AATA 2493 (14 May 2024); 1836448 (Refugee) [2024] AATA 1795 (27 May 2024).
[3] ART Case no 2202422 (unreported).
The record indicates that the department did not interview the applicant.
The Department accepted the applicant’s claims but, after reviewing relevant country information, determined that the applicant would be afforded protection from harm by Malaysian authorities. As such, the delegate determined that the applicant was not a refugee for the purposes of s 36(2)(a) of the Act. The delegate was also satisfied that, based on the claims and country information, the applicant would not experience significant harm as provided for in s36(2B)(b) of the Act, and therefore did not meet the criteria for the grant of complementary protection.
Evidence before the Tribunal
At the outset of the hearing the applicant was asked if he had completed his original application. He responded that he had, albeit with the assistance of a “friend” who he was no longer in contact with. He said the friend assisted with translation, and had read out each part of the form and he had responded. Asked whether the claims in the form were his own and were true and correct and the applicant said they were. As the applicant did not have the original application with him at the hearing, the relevant page of his application was placed on the meeting screen so he could re-familiarise himself with his primary claims. He was asked if he needed the claims read back to him through the interpreter. The applicant confirmed his English comprehension was now sufficient to read the displayed document. Following a recess to provide the applicant sufficient time to read the document the applicant stated that he remembered making these claims contained in the form 2021 and that he had nothing further to add to the form.
The applicant was asked to articulate what his present fear of returning to Malaysia. He told the Tribunal: “I fear return to Malaysia because I owed a debt from the bank, and I’m scared that they may ask the police to catch [me]”.
The applicant was asked if, consistent with his written application, the bank had threatened his parents and destroyed his property. He said that was true, and that in Malaysia, banks often used external debt collectors who might use such methods. Asked what sort of bank used such methods to recoup debt, the applicant initially referred to the lender as a “public bank”. However, he later described the bank as a “public credit company,” then later that it was a company “opened by a private person” — and not a real bank. Later again he said that “we call this company a bank,” but “it is not a genuine bank,” and it would colloquially be known as a “loan shark” in Malaysia.
Regarding the loan arrangement, the applicant said that he secured a loan of [amount] Malaysian ringgit (approximately AUD$[amount]) by mortgaging his parents’ home without their knowledge. He stated that he signed a written agreement with the “bank” but no longer had a copy of that agreement. Asked what the terms of the agreement were the applicant appeared to have some difficulty recalling them. He first claimed repayments were due quarterly but gave differing accounts of when repayment dates fell due. He said the interest was “quite high” but could not recall the exact rate.
Initially, the applicant said the loan was obtained in January 2016 and that the first repayment was due later that year. At a different point of the hearing, he said the loan was applied for in January, but the money only came through mid-year, with the first repayment due in October or November 2016. He stated he made no repayments at all, and this default triggered the debt recovery actions by the lender.
When asked why he did not repay anything, the applicant said he came to Australia “to relax, to ease [his] mind.” He said his reason for travelling to Australia in January 2017 was not immediate fear, but to get away from stress. The applicant confirmed that he left his family behind, travelling alone to Victoria where he ultimately stayed. He said he borrowed money from his parents for the flight, and from his friends to fund his travel and accommodation in Australia.
The Tribunal asked why, if he feared harm, he had delayed lodging his protection application for more than four years after arrival. The applicant initially said his original plan was to return to Malaysia after three months. He said his father later informed him of incidents involving the lender, including violence and intimidation against his parents and their property and that this caused him to remain. He claimed he was unaware of the ability to apply for protection until someone told him and added that it was difficult to access information during the coronavirus pandemic.
The Tribunal asked if the applicant’s statements meant that the claimed threats, violence and property damage referred to in his original application didn’t occur until after he had departed Malaysia. He agreed that was the case and that he had only been informed of the enforcement actions by the creditors after he arrived in Australia.
Asked if he had taken any action to protect his family from the bank and their debt collectors the applicant said that he had not. The Tribunal asked directly whether the applicant had ever reported the assaults on his parents or damage to their home to police, including from Australia. He said he had not. The applicant was directly asked whether he had ever taken any other action to protect his family once he was aware they had been threatened and harmed, such as seeking help from others. The applicant said he had not sought help because he was already in Australia by the time these things happened. Asked why he had made no efforts to protect his family he said that “there is not much I could do.” He justified this by saying the loan was legitimate and “formal,” so police could not intervene.
The Tribunal queried the applicant about his children and his wife, who he said had been living with his parents. He said that after the incident, his wife took the children back to her parents’ home, away from the danger. When asked why he had not returned to protect his elderly parents, whom he described as vulnerable and close to him, the applicant responded that the lender was waiting to catch him if he returned and reiterated there was nothing he could do from Australia.
The applicant was reminded that, in his written application, he claimed that he had reported the conduct of the bank and their debt collectors to police before leaving Malaysia. In contrast his oral evidence was that he had not been in Malaysia when the claimed events occurred and that he had not reported them to police. He was also reminded that, in his written claims he had stated that he had written public letters seeking help. In contrast his oral evidence was that he had taken no action of any sort while he was in Australia to protect his family. When asked to reconcile this inconsistency with his oral evidence, the applicant did not deny having made the claims in his original application but said only, “none of it worked,” and eventually, “there’s nothing I can say”.
The Tribunal then set out concerns that the substance and wording of the applicant’s original application – which he had said was true and correct, and which he had sought to elaborate on in the hearing – was identical to the claims made by unrelated applicants in other protection matters. The Tribunal explained that this might suggest that the applicant’s claims were not his, and that the experiences were not his and therefore the claims to fear harm in them were not genuine. The applicant acknowledged the issue and when invited to respond was unable to address it stating: “There’s nothing I can say. I understand what you said.”
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.
The Tribunal’s fact-finding role
In assessing the credibility of an applicant's claims, the Tribunal must make findings of fact in relation to each claim and its integers. This process necessarily takes places within a statutory framework that places the onus on the applicant to establish that they are a person in respect of whom Australia has protection obligations.[4] At the same time, the Tribunal must remain alert to the inherent difficulties faced by applicants who may have fled their country of origin, or who are required to recount experiences of harm, including the effects of trauma, cultural differences, language barriers and the passage of time.[5] Given these factors may affect the applicant's ability to produce documentary or other evidence to substantiate their claims there is no legal requirement that those claims must be corroborated to be accepted by the Tribunal.[6] However, that does not mean that the Tribunal must uncritically accept claims or evidence that it considers implausible, manufactured or otherwise unreliable.[7] Rather it is the role of the Tribunal to assess the veracity of each claim in light of the material facts before it.[8] A reasonable approach to credibility must be adopted, taking into account the totality of the evidence, the particular circumstances of the applicant, and the country information available applicable to it.[9]
[4] Migration Act 1958 (Cth) s 5AAA; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 570.
[5] MIAC v SZRKT [2013] FCAFC 80, [79]; MIEA v Wu Shang Liang (1996) 185 CLR 259, 291; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1992, [196].
[6] MZXRY v MIMA [2006] FCA 1475, [11]; Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[7] Randhawa v MILGEA (1994) 52 FCR 437,451.
[8] Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[9] MIAC v SZGIZ [2013] FCA 427, [42]; MIMA v Rajalingam (1999) 93 FCR 220, 224.
REASONS AND FINDINGS
The Tribunal has had the benefit of hearing oral evidence from the applicant and reviewing the written claims in his protection visa application. For the reasons set out below, the Tribunal is not satisfied that the applicant’s account of events giving rise to his claimed fear of harm is credible or reliable.
The Tribunal places significant weight on the fact that the applicant’s written protection application contains narrative passages that are materially identical in structure, wording and content to written claims made in other protection visa applications by unrelated individuals.[10] This includes wholesale replication of entire paragraphs, aside from minor variations such as proper names and locations. The Tribunal is satisfied, on the evidence before it, that these other applications pre-date the applicant’s own. The Tribunal considers the probability of the applicant writing lengthy verbatim identical claims to other applicants, through an intermediary translator to be so remote as to be impossible.
[10] See note 2.
This concern was put squarely to the applicant during the hearing. He did not contest the similarity or attempt to offer an explanation. He did not claim authorship of the text or indicate how the replication had occurred. He acknowledged the issue but did not attempt to respond to it. Nor did he attempt to identify which parts of the claim, if any, were drafted in his own words or based on personal experience.
In the absence of any plausible explanation for the replication and taking into account the applicant’s failure to engage with the concern, the Tribunal is not satisfied that the written narrative originated from the applicant in a direct or indirect sense. The Tribunal finds that the document was composed using external source material which was not his truthful account of his history or state of mind. Put simply, the words in the application were not the applicants, the experiences they recounted were not the applicant’s, the narrative of claims they presented were not the applicant’s. Therefore, those claims are not a reliable or credible source of evidence about the applicant’s past experiences or reasons to presently fear harm. Given that the applicant’s oral evidence committed to the truth of those words and sought to elaborate and advance the narrative of claims in them, that oral testimony can also not be relied on as genuine, reliable or credible. The Tribunal cannot identify any residual claims arising from the objectively reliable evidence before it, making this finding determinative and dispositive of the matter.
For completeness, the Tribunal has also considered the applicant’s oral evidence and finds that it is not credible. The applicant gave materially inconsistent accounts regarding the timing and circumstances of the alleged harm, including contradictory evidence about whether threats and violence occurred before or after he departed Malaysia. His oral testimony diverged from his written claims in significant respects, including claims about reporting to police and publicising his situation. He was unable to provide a clear or consistent explanation for key events, including the terms of the loan he allegedly took out and the steps he did or did not take to protect his family. These inconsistencies further undermine the reliability of his account. When considered together these various issues with the applicant’s evidence mean that the Tribunal does not accept that the applicant was a witness of truth in his own cause and does not accept his claims as genuine.
Accordingly, the Tribunal is not satisfied that the applicant is a person to whom Australia owes protection under s 36(2)(a) of Act. The applicant has not established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal does not accept any factual basis for such a claim.
The Tribunal is likewise not satisfied that the applicant meets the requirements for complementary protection under s 36(2)(aa). He has not shown that, if returned to Malaysia, there are substantial grounds for believing he would face a real risk of significant harm as defined in s 36(2A). The Tribunal has rejected the entirety of his account, and no independent risk arises on the evidence.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 21 May 2025
Representative: N/A
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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