2208790 (Refugee)
[2025] ARTA 1375
•21 May 2025
2208790 (Refugee) [2025] ARTA 1375 (21 May 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2208790
Tribunal:General Member R Hampson
Date:21 May 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 21 May 2025 at 1:28pm
CATCHWORDS
REFUGEE – protection visa – East Timor – borrowed money to set up business – lack of customers – land eroded by floods – debt – half of loan repaid – mother unwell – supporting entire family – fears harm due to inability to repay balance of debt – economy unstable and inadequate earnings – does not have a well-founded fear of persecution – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Applicant A v MIEA (1997) 190 CLR 225
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33Any 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[1] on 16 June 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] This is now the Minister for Immigration and Multicultural Affairs
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of East Timor applied for the visa on 12 January 2021. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared by MS Teams video before the Tribunal on 22 April 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter who also appeared by MS Teams audio in the Tetum and English languages.
The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations.
CONSIDERATION OF CLAIMS AND EVIDENCE
BACKGROUND AND RECEIVING COUNTRY
The applicant claims to be [an age] year old national of East Timor.
He claims he was born in [Municipality 1], Dili and his ethnicity is East Timorese and his religion is Catholic.
The applicant came to Australia first [in] December 2019 on a Temporary Work (International Relations) subclass 403 visa as a seasonal worker. Because of the Covid-19 pandemic he received a subclass 408 visa to remain in Australia. He applied for a protection visa on 21 January 2021.
The applicant provided a copy of the biodata page of his East Timorese passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Indonesia and there is no information before me to the contrary. The applicant also furnished his original passport at hearing which I sighted. I find that the applicant is a citizen of East Timor, and that East Timor is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
Protection visa application
In his protection visa application, the applicant claimed that he left East Timor due to being in a lot of debt. He claimed that he did not have sufficient funds to pay the debt and that the person who loaned him the money has asked him to repay the debt. The applicant claims that he will automatically be imprisoned in the future if he cannot repay the debt. The applicant also stated that it is hard to find a good job in East Timor to pay off his debt and that the government in his country cannot help him as the issue relates to personal debt.
The applicant was not invited to attend an interview with the delegate.
The applicant did not provide any further supporting documents to the Department apart from his passport and citizen registration card copies.
The delegate found that the applicant is not a refugee as defined by s 5H(1) of the Act and that he is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate also found that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
The applicant did not provide any further evidence or submissions before the Tribunal hearing.
Oral evidence at hearing
Preparation of the Protection visa application and AAT application
When asked about the preparation of his protection visa application the applicant said he had help from a friend who then sent the information to someone else to whom he paid $100AUD. He said he was aware of the content of the application.
Background in East Timor
When asked about his family background the applicant stated both of his parents live in [Municipality 1] outside of Dili in East Timor and do farm work but this is not considered as formal work. He has a [sibling] who lives in Dili and does not work and a [sibling] living in Ermera a municipality of East Timor, who is married and does not work but [his/her partner] does. He said he contacts his family every week or two via [Social media 1 or 2].
The applicant is not married and when I asked if he had a partner in Australia he stated yes and she is from East Timor and has her own application before the Tribunal. When I asked further about this, he said the couple ‘were having a break’ and he did not disclose her identity.
The applicant is from [Municipality 1] which is a municipality outside of the capital Dili. Since arriving in Australia, he has lived in [City 1] and [Town 1], in New South Wales where he worked in a [workplace] and he now lives near[Town 2], Queensland doing similar work.
The applicant has a Bachelor [degree] but has not worked in this field. He stated he did not work in East Timor.
Reason for leaving East Timor
The applicant came to Australia after successfully obtaining a Temporary Work (International Relations) subclass 403 visa as a seasonal worker. When asked about his reasons for leaving his home country and applying for a protection visa, he said he had a debt in East Timor so he needed to work to pay it back.
He explained he took out a loan for $[amount]USD in 2018 from a friend of his [sibling] who is [an Occupation 1]. On my questioning he said this person trusted him to pay back the loan and this is why he lent him such a large sum of money with no security, to buy land and open a[business]. He said, the business he started failed because of a lack of customers and then the land was eroded by floods.
He said he had paid back half of the loan $[amount]USD at the end of 2024 and had done so in a lump sum as agreed, by sending money to his mother every 2 weeks until she accumulated the $[amount]USD. He said he needs to make another lump sum payment to finalise the loan term at the end of 2025 and the interest rate is 10 percent. He has not made any further payments toward this loan since the end of 2024. He said this is because his mother is unwell with [Health condition 1] and he sends $[amount]USD each week to help his family and pay the hospital bills for [treatment]. He said he is responsible for this as his siblings are not working.
When asked how he supported himself before coming to Australia he said he working for $1-2USD a day labouring as does his [sibling] but this is not considered formal work.
When asked if he experienced harm while living in East Timor he said, ‘aside from the loan there is no other threat. I only anticipate with this loan there is a possibility it will escalate to physical harm or threats’. I asked him what did he fear if he were to return to East Timor and he said, ‘I anticipate the loaner may have ill wishes toward me’. I asked him if his [sibling] was still in contact with the person who had loaned him the money and he said he thought there had been no contact for a while and that the loaner ‘just waits for the time limit which is at the end of 2025’.
When asked if his [sibling] had been threatened about the loan he said, ‘in reality it hasn’t happened yet but we need to anticipate it could happen’. When asked if before his mother became ill, did he intend on paying the rest of the loan back, he said, ‘it is my obligation to pay it back in the written agreement but with my current conditions it is very hard for me to pay it back’. When asked if he still owned the land, he said he did but it was not in the same condition as there is only about 30 percent of it left after the flood erosion. He said he feared this matter will be referred to the police and he will be at risk of going to prison. I asked if he could seek assistance and protection from the authorities and he said no and that if he moved elsewhere in East Timor he would be found as it is a small country.
I raised my concerns with the applicant asking him about the date in 2021 he lodged his protection visa application with the department as this was during the period that he told me he had been paying the loan back and as such was at no threat from non-payment of the loan. He said, ‘yes, I did say that in my application. Then I would have to return if I didn’t apply for it (the protection visa) then I wouldn’t have the money to pay it back’.
I put to him that perhaps he only applied for a protection visa to attempt to remain in Australia to earn money. He said, ‘that is not a priority for me. It is the debt and if I don’t resolve it this year and the second priority is to stay longer to be able to work’. I explained my concern that he did not meet the criteria for a refugee and reiterated this information to him as I had done earlier in the hearing and he said, ‘yes, it hasn’t happened yet this harm, the evidence is the agreement (of the loan) and the harm is a possibility in the future’. I spoke with him about the nonpayment of a personal loan not being a criminal offence and as such a term of imprisonment being unlikely and asked for his comment, he said, ‘the conditions in East Timor are different, if I am unable to pay back it depends on the decision from the Tribunal (referring here to the East Timorese legal system). He said he knew this from the conditions of the loan and what other people had told him could happen to him depending on how much he owed and the type of loan. I asked if this would require the loaner to make a complaint to the Police and he agreed with this. I asked if he could negotiate with the loaner regarding the repayment of the rest of the loan considering he had shown good faith in repaying the first half of the loan. He said the loaner would not extend the time anymore and the end of 2025 is the limit. I asked him if he would like to comment on my concerns regarding the possibility of harm to him in the future and considering there had been no harm or threat in the past and he said, ‘the agreement says it will be passed onto the authorities if he defaults on it’.
I spoke with him about my concerns that defaulting on a loan and being unable to earn enough money in East Timor to repay it is a situation that many people in East Timor may face and not just him and asked if he wished to comment on this, he said, ‘earning wages in East Timor is low wages and to have a secure job is very hard and survival is only having enough money for ourselves’.
Post hearing submissions
The applicant was requested to provide the Tribunal with evidence of the loan he had taken out in 2018 and any repayments he had made on this and to submit these documents in a translated form. The applicant provided these documents to the Tribunal on the day after the hearing but they are untranslated. I have viewed the documents and can see they are for a parcel of land as this is photographic and they are signed and sealed and mention in English sums of $[amount]USD and the second document notes the date and a sum of $[amount]USD. These basic elements of dates, signatures and amounts are consistent with what the applicant has told me at hearing. I however can only give limited weight to the documents as they are, in the main, untranslated.
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.
ANALYSIS, REASONS AND FINDINGS
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
While there is a lack of detail in the applicant’s protection visa application and the applicant explained that he did not know the extent of information he needed to provide and trusted another person to assist him with this. As such I have not drawn any adverse credibility inference for the purposes of s 367A of the Act.
I accept the applicants claim that he had borrowed money in East Timor and had started to repay it and still owes the balance of the loan.
I accept the loan documents provided in post hearing submissions detailing an amount of $[amount]USD and the 2018 date and a further document detailing the $[amount]USD amount and a 2024 date.
I cannot accept the documents in their fullness as they are untranslated and I requested the applicant to send translated documents only and this request was repeated during, and at the conclusion of the hearing. I also had a discussion with the applicant about who could translate these documents for him during the hearing.
I accept the applicant had been paying the loan up until late 2024.
I accept the applicants mother became ill and he commenced sending her money for her treatment and to assist the family rather than pay the loan.
I do not accept the applicant’s statement that he could now be jailed for not repaying the last instalment of the bank loan.
I do not accept the applicant fears harm from the person who loaned him the money as there has been no threat of harm or actual harm made to him prior to his departure in 2019 or to his family who remain in the same home area. His [sibling] is acquainted with the man who lent him the money and [has] not been harassed or threatened or harmed by this person to date.
I do not accept the applicant has suffered harm in the past because of the unpaid loan and will not suffer harm in the future. His family still reside in the same home area of East Timor and have not been harassed and or harmed by the person who loaned him the money or any other debt collectors. The applicant admits it is only a possibility he will be harassed for the unpaid loan amount in the future if he defaults on the loan which is due in full at the end of 2025 and this is in essence why he wants to stay in Australia to repay this loan and assist his mother during her illness. Whilst I am very sympathetic to this circumstance I am bound by the Australian migration law as it applies to his application.
Does the applicant satisfy the refugee criterion for protection?
I accept the applicant’s explanation regarding the preparation of his protection visa application. I accept that he was heavily reliant on the person assisting him with the completion of the protection visa form and was not aware of the level of information or detail required. While I cannot accept the untranslated loan agreement provided after hearing and cannot make a finding on the exact sum of money the applicant borrowed, I accept all other evidence and claims that the applicant raised during hearing, including that he borrowed an amount of money and fears harm due to his inability to repay the balance of his debt. I accept that the applicant wishes to remain in Australia to continue earning money to support his family and service his debt.
According to a United Nations socio-economic impact assessment on East Timor in 2021, 46 per cent of the population are multidimensionally poor and a significant majority rely on small-scale subsistence farming.[2] The majority of households are in the informal sector, with only about 23 per cent of the working-age population in the case economy.[3] Household vulnerability is increased by the dependence of nearly 70 per cent of citizens on climate-sensitive livelihoods and agricultural production, in a country which experiences frequent floods, droughts, storms, landslides and is impacted by sea-level rises and higher temperatures as a result of both natural climate variability and climate change.[4]
[2] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[3] Bertelsmann Stiftung, ‘[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste’, 23 February 2022.
[4] United Nations in Timor-Leste, ‘Socio Economic Impact Assessment of COVID-`9 in Timor-Leste’, 2021, p 31.
There is a low labour market participation in East Timor, with only 45.2 per cent of the working-age population employed in the market economy as of March 2021.[5] The United Nations report explains that this does not include those engaged in subsistence agriculture, which would raise the figure to 61.1 per cent. Most of those engaged in the market economy (86.3% are self-employed or contributing family workers, and many (over 70 per cent) are engaged in production and sale of agricultural products. Many jobs are characterised by informal work arrangements, insecure employment, unstable and inadequate earnings and low productivity. The overall unemployment rate is 11.9 per cent but this rises to 22.1 per cent for young people aged 25 to 29 years, likely related to higher levels of job losses among this group because of COVID-19.[6]
[5] Ibid.
[6] United Nations in Timor-Leste, ‘Socio Economic Impact Assessment of COVID-`9 in Timor-Leste’, 2021, p 8-10.
While I acknowledge and am sympathetic to the cultural and familial obligation that the applicant must provide financially for his family, as well as the economic situation in East Timor, I must determine whether the socio-economic harm the applicant fears is for any of the reasons set out in s 5J(1)(a) of the Act, namely race, religion, nationality, membership of a particular social group or political opinion. In the case of Applicant A v MIEA[7] the court recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group due to their race, religion, nationality, political opinion or membership of a particular social group. As raised with the applicant during hearing, the economic conditions and lack of employment opportunities throughout East Timor apply to the broader East Timorese population. As such, I find that the harm feared by the applicant is not for any of the reasons set out in s 5J(1)(a).
[7] (1997) 190 CLR 225 at 258.
I find that there is not a real chance that the applicant will be harmed by the lender by way of being reported to police and imprisoned. As raised with the applicant during hearing, there does not appear to be any criminal conduct committed by the applicant by not repaying the monies owed which would trigger action by police. While the threat of legal action in court might be possible, this is ultimately a course of civil action to enable the borrower to recoup the loaned amount. I find that the applicant does not have a well-founded fear of persecution for these reasons and is not a refugee as defined in s 5H(1) of the Act.
I find the applicant does not satisfy the refugee criterion in s 36(2)(a) and as such is not a person in respect of whom Australia owes protection obligations.
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).
Under the complementary protection criterion, I will need to consider if the applicant has a real risk of suffering significant harm if he were to return to East Timor.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] I have not accepted, for the reasons set out in paragraph 50 above, that the applicant will suffer harm due to an unpaid loan debt and a fear of possible harm from debt collectors. For the same reasons, I am not satisfied that there is a real risk of any of the kinds of significant harm set out in the Act.
[8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Based on the applicant’s evidence, I find that he will not suffer significant harm by way of being arbitrarily deprived of his life, have the death penalty carried out on him, be subjected to torture, be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment as per s 36(2A) of the Act.
I do not accept the applicant will be reported to the police and imprisoned as the non-payment of the debt is not a criminal issue.
Further, the harm that the applicant fears in relation to the economic conditions in East Timor and the inability to secure a high-paying job do not constitute significant harm as conditions resulting from general economic and social conditions apply to the broader population and would not be deemed ‘degrading treatment’ for the purposes of s 36(2A) of the Act.
Therefore, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia there is a real risk of significant harm.
I have considered if the applicant is therefore at real risk of harm in the reasonably foreseeable future. As I have found there is no real chance of harm of any kind, there is no real risk, as the real chance and real risk tests are the same, and I have adopted the same findings. Therefore, I find that the applicant does not meet the criterion for complementary protection as set out in s 36(2)(aa) of the Act.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 22 April 2025
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
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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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