2206267 (Refugee)

[2022] AATA 2819

2206267 (Refugee) [2022] AATA 2819 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2206267

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Wendy Banfield

DATE:30 June 2022

PLACE OF DECISION:  Canberra

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

Statement made on 30 June 2022 at 2:05pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark – business loan by partner – threats and damage to property and police inaction – country information – government financial support services and effective police force – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Malaysia applied for the visa on 23 August 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.

3. The applicant appeared before the Tribunal on 8 June 2022 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA          

   Refugee criteria

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

8. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

   Complementary protection

9. 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

10. 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.

    Applicant’s identity and country of reference

11. The applicant stated in his application for a protection visa that he was born on [Date] in Malaysia. The applicant provided a copy of his Malaysian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.

12. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.

13. Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that he is a citizen of Malaysia and as such his protection claim will be assessed against Malaysia as the country of reference and 'receiving country' respectively.

    Migration History

14. The applicant arrived in Australia [in] April 2016 holding an Electronic Travel Authority (ETA) and has not departed since.

    Claims for protection and supporting documentation

15. The applicant submitted claims for protection when he made an application to the Department on 23 August 2017.

    ·     They were the main [Occupation] at a [Business] they had with their partner.

    ·     They were the guarantor for a loan taken out from a loan shark for the loss on the [Business].

    ·     The loan shark ambushed their house, hurt and blackmailed them that they would be killed and demanded the debt be settled in two months.

    ·     They tried to seek help from relevant departments and a local politician, but they could not help.

    ·     They could not relocate as their details and photos were known to loan sharks.

    ·     They decided to come to Australia to seek help.

    Evidence at the hearing

16. The applicant confirmed he was in a business partnership in Malaysia with [Ms A] who also applied for protection in Australia. The applicant claimed he was the [Occupation] in the business, and he had not been aware [Ms A] took out loans from a loan shark. He said if he returned to Malaysia, he would be liable because he was an investor in the business. The applicant said he trusted [Ms A] and because he is not literate, he trusted her with the documents. The applicant advised [Ms A] had borrowed RM80,000 but with interest it had increased to RM200,000.

17. The applicant advised he and [Ms A] came to Australia because they were “threatened”. He said he was threatened, intimidated, and had his car smashed by the people that lent money. The applicant alleged “they chased us with knives”. According to the applicant he had been living in Kuala Lumpur at the relevant time which is where the business was located. When asked when the threats and intimidation had occurred, the applicant did not initially answer the question but then said it was “roughly around 2015”.

18. The Tribunal asked the applicant what happened to the business after the loan could not be repaid. The applicant said it “went under” as they could not operate it any longer. The applicant said he and [Ms A] came to Australia because they needed to make money. He is currently living in Canberra and working in [Job sector]. When asked if he and [Ms A] are repaying the loan now, the applicant claimed the money they make is still not enough.  The applicant claimed that initially he received some financial help to repay the debt but now it is too much.

19. Tribunal put it to the applicant that there are services in Malaysia that can assist people who have debts to loan sharks and asked if he sought help. The applicant claimed they lend you money but then become your new lender that you must repay. The Tribunal explained there are government agencies that can assist people with debt. At first the applicant denied there were such services but when the details of the organisation were explained to him, the applicant expressed doubt about their ability to assist. The applicant added that because he does not read, he did not know about available services. It was put to him that loan shark activities are illegal, and he could report the matter to police. The applicant claimed police ask for evidence and do nothing more than take a statement.

20. According to the applicant, he still fears harm in Malaysia because loan sharks are well connected, and police do not do anything. The Tribunal noted the applicant claimed to have been intimidated and threatened in 2015 but he did not depart from Malaysia at that time. The applicant did not answer initially but when he was asked again, he claimed he and [Ms A] “had to run around and they chased us”. He said he remained “somewhere else” in Kuala Lumpur before coming to Australia. The applicant claimed he could not work and when he went outside, he was followed. The Tribunal asked how he supported himself if he did not work and the applicant claimed he borrowed money from friends and did some part-time work.

21. The Tribunal asked the applicant if anything happened to harm him after the business closed. The applicant said, “they came to where we lived and threatened us”. He also claimed they asked when they would repay the money and “became physical a little”. When asked to explain what he meant, the applicant if he could not pay, “they would beat us once or twice” and they had to hide. He was asked what he feared would happen in future and the applicant stated his family had been threatened.

22. The Tribunal noted the applicant had been in Australia now since 2016 and asked why he was still afraid of returning. The applicant stated he still has a “profile” there and his family have said they are still asked about the debt. The applicant said he is afraid he will be beaten up. Regarding the availability of protection by police or authorities, the applicant claimed they may be able to initially, but it would be temporary. The applicant claimed he is still at risk because he and [Ms A] owed too much, and it had been too long. The Tribunal asked how anyone would know if the applicant had returned to Malaysia and he said while no one would know initially, he would be “afraid of an ambush”.

23. The applicant was asked if he had any other reason to fear returning to Malaysia. He said there was not, but added he is worried he would be “beaten up”. The applicant said he would only go back to Malaysia if his family were in trouble. The applicant was asked about the Department’s decision that found there were protections in place in Malaysia, but the applicant repeated his opinion that there is not much action taken by police against loan sharks. The Tribunal asked why the loan shark would engage in serious criminal behaviour because of the applicant’s debts. He replied that they do not care and will just beat you up.

    Country Information - Malaysia

    Royal Malaysia Police (RMP)

    The RMP is based on the British constabulary model and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. SUHAKAM conducts some human rights training and workshops for police, state Islamic religious authorities and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.

    According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.[1]

    Loan Sharks

    Malaysian police respond to threats and harassment from unlicensed moneylenders and some non-government associations offer assistance to loan shark clients. Loans from unlicensed moneylenders, typically referred to as ‘loan sharks’ or an ‘ah long’ in Malay, are common in Malaysia[2]. Unlicensed money lending activities, including harassment or intimidation of borrowers, are offences under the Moneylenders Act (1951).[3] Individuals prosecuted under the Moneylenders Act face a maximum 1 million ringgit fine or five years imprisonment. Police respond to complaints of illegal money lending activities, including harassment and intimidation, and conduct operations targeting illegal moneylending, resulting in the prosecution of persons under the Moneylenders Act and the Penal Code.[4] In December 2017, Malaysia’s central bank cautioned the public about illegal money lending activities conducted by companies using fake licences purportedly issued by the central bank, advising the public to report such instances to the police for investigation.[5] A nongovernmental organisation, the Malaysian Muslim Consumers Association (PPIM), offers support for those encountering problems with loan sharks, including a call centre, website, and assistance settling debts.[6] The Malaysian Chinese Association’s (MCA) Public Services and Complaints Department provides a similar service to renegotiate the terms of loans with loan sharks on behalf of borrowers.

    [1] DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, sections 5.5, 5.6, p.58

    [2] DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, sections 3.109-3.118, pp.40-42.

    [3] Moneylenders Act 1951 (Malaysia)’, amended 15 April 2011, Attorney General’s Chambers of Malaysia, sections 5(2), 29AA, 29B(1).

    [4] ‘Penang police nab 20 suspected loan sharks’, Malay Mail, 14 July 2021, ‘Two illegal moneylenders nabbed in 'Ops Vulture'’, The Star Online (Malaysia), 12 March 2021, ‘Police nab five ‘Ah Long’ for keeping victim captive in Kedah’, Bernama, 9 November 2020; ‘Johor cops arrest seven for loan shark activities’, The Star, 3 November 2020; ‘’Datuk’ arrested in Kuala Lumpur for posing as senior police officer’, Bernama, 18 October 2020; ‘Johor cops open 398 investigation papers on loan sharks in eight months’, The Star Online (Malaysia), 1 September 2020; ‘Cops detain 12 men over ‘Ah Long’ syndicate in Johor’, Bernama, 1 September 2020; ‘18 nabbed over Ah Long activities in Selangor’, The Star (Malaysia), 10 June 2020.

    [5] ‘BNM warns of illegal money lenders’, Bernama, 6 December 2017.

    [6] ‘More expected to borrow from loan sharks’, The Star, 23 June 2020; ‘Loan sharks sharpen their bite’, The Star, 20 January 2018; ‘PPIM urges govt to put an end to ‘ah long’ posters’, Bernama, 6 September 2018’ ‘For Malaysia’s sake, consumers group seeks to save civil servants trapped in debt’, Malay Mail, 3 August 2017; ‘More than 10,000 people sought PPIM's help over Ah Long cases’, Bernama, 18 October

    2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

25. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.

26. The applicant did not make any specific claims of fearing persecution due to race, religion, ethnicity, membership of a particular social group or political opinion but the Tribunal nevertheless considered his submissions that he experienced difficult financial circumstances as a member of a particular social group who have a debt to an illegal loan shark.

27. The Tribunal notes there are government support services available in Malaysia to those who are in debt and have difficulty making repayments, including to illegal money lenders.[7] The applicant indicated he was not aware of such services and therefore had not sought assistance. Malaysia also has an effective police force that is willing and able to act against illegal loan shark activities, despite a level of perceived and actual corruption. Media reports indicate police do pursue and prosecute unlawful lenders. There is nothing to suggest the applicant would be unable to seek assistance from the authorities and available debt services. The applicant referred to fears of being chased for the outstanding debt he and his business partner acquired and still owe, however, the Tribunal did not find his evidence in this regard to be persuasive and is not satisfied there is a real risk the applicant would be persecuted in Malaysia.

    [7] Malaysian Government Credit Management Programme: >

    Having assessed the applicant’s claims before the Tribunal, there is no satisfactory evidence he would suffer serious harm if he returned to his home country, and there are protections in place. The applicant gave evidence that the business he and his partner operated had failed in 2015 yet he remained in Malaysia until April 2016. The Tribunal found the applicant’s evidence about his activities after the business closed, and his means of support to be vague and evasive. He initially claimed he could not work or leave the house but then said he did some part-time work. The Tribunal found that in response to questions, the applicant adapted some of his evidence to suit his claims. In addition, his claims about threats and harassment were without the level of detail that would be expected of a person who was concerned for their personal safety. Based on available country information, the Tribunal does not accept the claim that police and authorities do not act if people are threatened or harmed by loan sharks. The Tribunal did not find there is a real chance the applicant would be harmed if he returns to Malaysia.

1. The Tribunal did consider whether the applicant would face significant economic hardship that would threaten his capacity to subsist. In this regard the Tribunal notes the applicant was [an Occupation] in Malaysia and has been working in [Job sector] in Australia, he is of working age at [Age] years old, and he has been able to able to live and work in a foreign country without being a native English speaker. While in Australia the applicant would have acquired skills that could be utilised in his home country. The Tribunal is not satisfied the applicant would be in a position in Malaysia whereby his capacity to subsist would be threatened.

2. For these reasons, the Tribunal is not satisfied that there is a real chance that on return to Malaysia now or in the reasonably foreseeable future, the applicant would face harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Complementary protection criteria

3. A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.

4. The applicant claimed to fear harm due to a debt to a loan shark. He described concerns that if he was in Malaysia, the loan shark may find and pursue him. The applicant made vague claims about being chased, intimidated, and threatened by loan sharks which the Tribunal found to be unpersuasive. Based on country information about the problem with illegal money lenders and their practices in Malaysia, the Tribunal accepts the applicant could possibly face a level of threat and intimidation but as outlined in this decision, there are protections available in his home country and services he could access to assist with outstanding debts. For these reasons, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm if he returns to his home country.

5. 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).

6. 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

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

   Wendy Banfield
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

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

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

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

   but does not include an act or omission:

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

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

   …

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

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

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

   …

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

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

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

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

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

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

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

   …

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

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

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

   …

   5H    Meaning of refugee

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

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

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

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

   …

   5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

   5K    Membership of a particular social group consisting of family

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

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

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

   (i)the first person has ever experienced; or

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

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

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

   5L    Membership of a particular social group other than family

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

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

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

   (c)     any of the following apply:

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

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

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

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

   5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

   …

   36     Protection visas – criteria provided for by this Act

   …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   …