2312777 (Refugee) v Minister for Immigration and Multicultural Affairs - [2024] ARTA 868

2312777 (REFUGEE) [2024] ARTA 868 (12 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2312777 and 2312781
Tribunal:General Member E Rutherford
Date:12 December 2024

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

General Member E. Rutherford

Statement made on 12 December 2024 at 12:48 PM
CATCHWORDS
REFUGEE – protection visa – China – particular social group – victim of loan sharks – threats from debt collectors – attack on home – physical assault – state protection – fear of killing – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATIONS FOR REVIEW

This decision record combines two applications for review of decisions made by a delegate of the Minister for Home Affairs on 15 and 17 August 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be nationals of China, separately applied for protection visas on 18 and 19 February 2023. The delegate refused to grant both visas on the basis that the government in China is willing and able to protect them from the feared harm.
The applicants separately applied to the Tribunal[1] for review of the decisions. The Tribunal identified that the applicants were both residing at the same address and had made the same claim for protection. The Tribunal considered it likely that the applicants were married based on other identifying features of their applications, such as their shared marriage date. On 31 October 2024 the Tribunal wrote to [applicant 1] asking if she had a spouse, and whether her spouse had an application currently before the Tribunal. Applicant 1 responded on 1 November 2024 in the affirmative and provided the details of applicant 2. Given the family relationship, the Tribunal considered that the applications for review could be heard together in a combined hearing and invited the applicants to appear before the Tribunal. Applicant 1 also provided her written consent to the hearing scheduled in her matter becoming a combined hearing with her husband.
[1] 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 Administrative Appeals Tribunal.
The applicants were invited to appear before the Tribunal on 25 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted in person with the assistance of an interpreter in the Mandarin and English languages.
At the hearing, the applicants confirmed they relied on each other’s protection claims by virtue of their relationship, and gave their consent to proceed with a combined hearing.
BACKGROUND
Applicant 1 claims to be [an age] year old female and applicant 2 claims to be [an age] year old male.
Evidence before the Department
Protection visa application
Both applicants separately claimed to fear harm in China from loan sharks as a result of their son having borrowed money which he was unable to repay. They both stated that their land and house had been put up as a guarantee on the repayment, and that as a result they had lost those assets. Both claimed that the lender had threatened to kill them, and had destroyed everything in their home.
In addition, applicant 2 stated that he had also borrowed money from relatives but could not afford to repay them.
Supporting documents
The applicants both provided the Department with copies of their passports and national identity cards.
The Department did not interview either applicant regarding their claims.
Summary of the delegate’s decision
It is not apparent from the face of the delegate’s decisions whether the Department identified the applicants as being married to one another. The delegate refused applicant 1’s application on 15 August 2023 and applicant 2’s on 17 August 2023.
In both decisions, the delegate proceeded to assess the claims without first making any assessment of the credibility of the applicants’ claims. The delegate considered the country information before them regarding the availability of police protection for victims of loan sharks, and found that the government was willing and able to provide protection to the applicants.
Evidence before the Tribunal
No additional information was submitted by either applicant regarding their claims for protection with or following their applications for review.
The hearing
Both applicants appeared in person on 25 November 2024 to give evidence to the Tribunal. The applicants were able to communicate with the Tribunal through the assistance of a Mandarin interpreter, who was also present at the hearing.
The Tribunal heard evidence first from applicant 1, and then from applicant 2.
I asked applicant 1 to explain who had assisted the applicants to apply for their protection visa. She explained that it was the wife of a relative through her sister’s husband.
Applicant 1 relayed background information about her family, education, employment and travel history. Her family in China consists of her elderly parents, [and specified family members], all of whom reside in the same city. Initially, applicant 1’s evidence was that her parents lived on their own.
Applicant 1 explained that she was educated to high school level, and that she had worked in many casual positions, including [specified jobs], and that she had herself run a restaurant prior to it closing down.
Applicant 1 gave evidence that she was working in Australia on a farm. She had previously travelled to Australia in 2017 for tourism and visiting family. The couple had been living in a regional town since their arrival in November 2022, and working on a farm for approximately one year.
The reason given by applicant 1 for choosing to come to Australia and seek protection was that their son had lost so much money that they needed to come to earn money to repay the debt.
According to applicant 1, their son had borrowed a large amount of money which he had lost gambling. The money was borrowed from internet platforms unknown to her, and also from a friend known as [Friend A]. She said that her son met [Friend A] through his work, and that he was a money lender. She estimated that the total amount lost was over 1 million RMB. Applicant 1 and her husband had sold two properties and borrowed more money in order to help her son out of the debt, but she said that it was not enough, and they were still paying it off. She explained that he had used a car and one of their properties as guarantees, which he was able to do because the properties had been purchased in his name.
On one occasion she said, [Friend A] and one other person had gone to speak to her son when she was present. They almost beat her son, but applicant 1 was able to intervene and prevent them from doing so by offering to repay the funds. [Friend A] also sued her son in court, but applicant 1 hired a lawyer who was able to mediate and [Friend A] discontinued the case based on an agreement that they would make payments of 1000 to 2000 RMB per month. It was also negotiated that there would be no time limit on the repayment of the debt. Applicant 1 maintained that this agreement did not have the effect of transferring the liability for the debt to her and her husband, and that liability remained with her son.
Applicant 1 said that her son had stopped working because of his addiction to gambling, but that since his parents had come to Australia, he had started working again. He is no longer gambling. Both the applicants and their son are currently repaying what is owed to [Friend A]. Applicant 1 said that she and her husband earn about $840 per week [working] on a farm, from which they pay their tax and expenses, and the remainder is sent back to service the loan.
Applicant 1 expressed fear of being beaten by people who would chase her for the money owed by her son. She said that she did not report [Friend A’s] threat to the police because she knew that they owed the money.
According to applicant 1, there is still up to 400,000 RMB owing. Of this, around 200,000 RMB is owed to [Friend A], some to the online platforms, some to her various family members, and some credit card debts.
I asked applicant 1 if she communicated directly with [Friend A]. She responded that she did not – the last time they communicated she asked him via WeChat why he had lent money to her son which was illegal, and [Friend A] had responded that it was her son who had borrowed money from him, and it was none of her business.
Applicant 1 said that she had also received phone calls from the online platforms because her son had given her number as an additional contact when borrowing the money. When they called her, she identified where they were calling from, and hung up immediately. She has not been contacted recently since she’s been unable to use her Huawei phone in Australia.
When asked if she could earn money in China to keep repaying the debt, applicant 1 responded that she would not be able to get a job because of her age.
I asked applicant 1 where they would return to if they had to go back to China. She responded that she had nowhere to go, but agreed that it would probably be back to where her family lives. She expressed concern that it would be hard to go back to stay with them when she owes them money.
Evidence was then taken from applicant 2. Applicant 2 was one of [specified family members], two of whom have since passed away. The remaining [family members] all live in the same city as his mother, and in the same complex. His siblings have all retired.
Applicant 2 completed junior high school and then had ceased his education because of the cultural revolution. Once old enough to work he had gone to work in a [factory] where he worked for 37 years before retiring.
Applicant 2 gave evidence that he and his wife had travelled to Australia in 2017 to inspect a farm which was owned by a relative known to him as ‘second brother boss’ (being the same relative whose wife had assisted with completing the protection visa application). They did this because they were thinking about coming to work in Australia.
When asked why applicant 2 feared return to China, he responded that it was not about harm, it was about the debt, and that they had nowhere to return to. Applicant also gave evidence that their son had borrowed money, and that the applicants had been required to sell their properties to repay it. Applicant 2 said that he did not know much about the loan. Initially, he said, his son had kept the information from them, and then he had told them to get their help.
Applicant 2 also described a relationship between his son and [Friend A], but he said that they were classmates. Applicant 2 said that it was just a person-to-person loan, and that his son and [Friend A] had lost the money by getting themselves in trouble. Applicant 2 explained that he did not know much about the situation, and that it was his wife who dealt with everything. He had not heard of his son ever being threatened or harmed.
Applicant 2 gave evidence about a pension which he received in China, which he thought was about 3600 RMB per month. Again, he deferred to his wife for details of the pension.
When asked if the applicants could return to China, applicant 2 responded that they would return to the same city as the one they were born in and live with his wife’s mother. He explained that her house had sufficient space for them.
Applicant 2 raised no other concerns about the couple’s return to China but said that he had pain in his feet and other places and that he had consulted a doctor about varicose veins, but that there had been no follow up. Applicant 2 said he is not on any medications or receiving any ongoing treatment.
When applicant 1 returned to the hearing room, I asked her to clarify the information about her husband’s pension. She informed me that he received about 3000 RMB per month which covered their living costs. Every month, her father would withdraw the money using the card, and then see who in the family needed the money. Sometimes, the money would be used to repay the debt. I clarified that the amount received from the pension covered the minimum repayments on the debt which the applicants agreed with, but they said that the money was instead used to repay the money owing to family. When pressed however, they accepted that it could be used to repay the debt to [Friend A].
I then invited both the applicants to speak about a number of concerns that I had regarding their evidence and eligibility for the visa.
First, I expressed the concern that there was a disconnect between the information given in the protection visa application and the evidence provided during the hearing, regarding the nature of the harm feared by the applicants. I explained that the application said that threats to kill the family had been made, but that in the hearing, applicant 1 said that on only one occasion [Friend A] and another person might have considered violence towards her son but that she had been able to intervene.
In response, applicant 1 said that [Friend A] had come to her several times when she was working at her sister’s [business] and threatened to kill her son. She said that the people who came were ‘gangsters’. I expressed concern that she had not raised this earlier during the hearing. I also expressed concern that this threat was against her son, who had been able to live safely in China since then. Further, I expressed concern that the threats were not directed towards the applicants, which was relevant to my assessment of their eligibility for a protection visa. In response, applicant 1 said that she did not recall having been asked expressly by me any question about this, and that there was so much going on that it was sometimes hard to recall everything.
Secondly, I expressed my concern that there was evidence from both applicants that the reason they wished to remain in Australia was an economic one. This was based, for example, on the evidence given by applicant 2 that they came to Australia in 2017 to view a farm where they were considering working, and that applicant 1 had said that she was able to earn more money in Australia than China.
Third, I explained that I was required to apply a legal test for serious or significant harm, and that the type of harm expressed by the applicants might not fall within these definitions of harm.
The applicants replied that they wanted to stay in Australia because they are in debt, because people are chasing after them, and because they have nowhere to live when they get back.
On this final point, I explained that applicant 2 had given evidence they would be able to live with applicant 1’s mother. Applicant 1 stated that her parents lived in her [sister’s] house and that there were already four people living in the house, so there would be no room for them. Applicant 2 then clarified that he had meant this only as a temporary measure, not that they could stay there permanently.
Finally, I expressed concern that, based on the evidence given by applicant 1 and also based on the DFAT country information report, it seemed possible that there would be police protection available to the applicants if they were ever actually threatened as a result of the loan. Both applicants indicated that they agreed this was a possibility.
During the hearing, applicant 1 on a number of occasions took out her mobile phone for the purpose of finding evidence of the loans. I asked that she not do so during the hearing, but that she would be given time following the hearing to submit any evidence she wished for me to consider. At the end of the hearing, I invited the applicants to consider whether they would like to make any written submissions in response to my concerns, and also whether they had any evidence they wished to submit in support of their applications. Two weeks were provided to the applicants to do this.
Post-hearing submissions
The applicants provided the following documents within the timeframe provided to them:
·Marriage licenses in Chinese and English
·3 handwritten “IOU” or “owe” notes in Chinese with unofficial English translations.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS

The issue in this case is whether there is a real chance or risk that the applicants would suffer persecution or significant harm in China. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Background
I found the applicants to be honest and genuine when giving information evidence about their personal backgrounds and family compositions. I accept the evidence given by them about their families, education and employment histories. I accept that the applicants are married.
Country of reference
The applicants have provided passports and identity cards in support of their claimed identities. I am satisfied that both are nationals of China.
There is no evidence to suggest that the applicants have citizenship of any other country, or that they have a right to enter and/or reside in any other country. Based on the information before me, I am satisfied that s 36(3) of the Act does not apply to the applicants. I am satisfied that China is the applicants’ receiving country, and I have assessed their claims against that country.
Claims for protection
The applicants have consistently maintained that their reason for claiming protection in Australia is based on their son having borrowed money, and them losing their property to repay the debt. The evidence given by them was broadly consistent in its gist.
I do not place any weight on the three notes provided to the Tribunal following the hearing. The notes are all written on paper sourced from an identical lined notebook and appear to be written with the same pen. The English ‘translations’ accompanying them identify that they were all written on different dates, which I find to be implausible given the similarities between the three notes. The translations are not certified and are therefore of limited benefit, but I’m prepared to accept that they do correctly set out the same information contained within the three notes. Two of the names that appear on the notes have not been mentioned to the Tribunal previously and so it is unclear whether these are people related to the applicants or other individuals. The third is shows the name of [Friend A], but states that the applicants are the debtors of 350,000 Yuan, with an interest rate of 10%. I have rejected the claim that the applicants owe money directly to [Friend A] for reasons set out below. I therefore have not given any further consideration to the three notes in making my findings.
I accept that the applicants’ son did borrow money, both from internet platforms and also from an individual named [Friend A]. Where the evidence of the applicants differed from one another, I prefer the evidence given by applicant 1, who had greater knowledge of her son’s dealings with these people. I do not place any weight on the minor inconsistencies identified between their evidence regarding the precise nature of [Friend A’s] relationship to the applicants’ son or whether he lent money as an individual or through a money lending business.
I do not accept however that [Friend A] is a ‘gangster’. Applicant 1 described him as such for the first time only when I put to her that the information given regarding [Friend A] differed from what was in the protection visa application, which had described the money lender as a ‘shark leader’. I also do not consider it plausible that [Friend A] would have used official channels to recover the money owing to him by the applicants’ son from the courts if he had been involved in illegal lending practices or organised crime. I accept that such an agreement exists. It seems that the court did not get involved to the extent where it might have assessed the lawfulness of the interest rate set by [Friend A]. Similarly, a lawyer engaged by the applicants successfully negotiated an agreement in favourable terms, whereby the applicants agreed to repay a reasonable amount per month with no fixed term. This also indicates to me that [Friend A] is not a ‘gangster’.
I do not accept that [Friend A] made threats directly to applicant 1 to kill her son by attending her place of work. I consider that if these events really had occurred, she would have told me earlier when I asked questions about her communication with [Friend A] or threats of harm to her son. I accept that she was present on one occasion when [Friend A] spoke to her son, but find that any threat of violence which may have faced her son was alleviated when she agreed to help her son with the loan. However, I find that this agreement, and the one negotiated by the lawyer, do not make the applicants personally liable for any of the money owed to [Friend A]. I find that their wish to repay the money stems from their concern for their son, and also from wanting to save face and avoid any personal discomfort involved in having people ask them to repay money owed by their son.
Instead, I prefer the evidence given by applicant 1 earlier in the hearing when she said that [Friend A] had responded to her on WeChat to say that the loan was between her and her son, and that it was none of her business. I consider that if [Friend A] had been threatening applicant 1 with violence towards her son in person, he would have continued to make those threats over WeChat.
I accept that the applicants owned two properties which they sold to help their son reduce his debt. I accept that they also borrowed money from their families and on credit cards. I accept that there is also money owed by their son to online platforms, but I find that the applicants are not personally liable for that amount, nor have they given any guarantee for these sums. In any event, the evidence provided is that this aspect of the debt is relatively small.
I accept that the applicants feel shame at the thought of having to return to stay with their family in circumstances where they owe money to those family members. Despite their feelings of shame, I find that it would be possible for the applicants to live with family members, who they are in regular communication with, and who were willing to assist them previously to lend them money. I also accept that applicant 2’s pension is being drawn upon by applicant 1’s father, and being distributed among the family in order to reduce the debt owed. I find that, at times, that money is also used to repay the debt owed by the applicants’ son.
I find that, together with their son, the applicants have been able to continue to make the minimum repayments agreed upon with [Friend A], and that, with the money from applicant 2’s pension, they would continue to be able to do so even if they return to China.
Information published by the Department of Foreign Affairs and Trade (DFAT) in its Country information Report on the People’s Republic of China from 2021 acknowledges the ‘plausible fear of violence’ from loan sharks, but considers the actual risk posed to victims to be low.[2] DFAT described evidence of a ‘crackdown’ on the practice of usurious loans by the Chinese government and police, with operations being ‘large scale’.[3]
[2] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report – People’s Republic of China, December 2021, [3.125].
[3] Ibid, [3.123].
The crackdown referred to by DFAT come from the highest level of government. According to one source, this is a strong agenda set by the authorities:
The nationwide struggle to sweep away black and evil [forces] is a critical decision made by the Party Central, with Comrade Xi Jinping at the core, which concerns social stability, prosperity of the country, solidarity of people and stability of local governments… All regions and departments must raise their political awareness, fully understand the significant implications of implementing the struggle to sweep away black and evil [forces], combine their minds and actions on the basis of the deployment of the Party Central [guidelines], meticulously plan, carefully organize, thoroughly implement and resolutely win the battle. In implementing the guidelines, Party committees and governments at all levels must regard “sweeping away black societies and eradicating evil forces” as a major political task, give it a prominent position in their work and include it on their work agenda.[4]
[4] Bo Yin and Yu Mou, ‘Centralized Law Enforcement in Contemporary China: The Campaign to “Sweep Away Black Societies and Eradicate Evil Forces”’ The China Quarterly (2023) 253, 366, 369
Based on my assessment of country information before me and the evidence of the applicants, I also find that, if the applicants were ever to face violence at the hands of [Friend A] for any failure to make repayments of the loan that might occur in future, they would be able to access police protection for this.
Do the applicants satisfy the refugee criterion for protection?
I find that the applicants do not face a real chance of harm if returned to their home area in China in the reasonably foreseeable future. This is based on my finding that their reasons for wishing to remain in Australia relate only to their assessment that they can earn more money in Australia that they could in China. While I accept the reason for wishing to earn money is because of the debt owed by their son, I do not find that the applicants themselves face any harm which might result from their son being unable to repay the money.
It is also based on my finding that the applicants themselves are not liable for the money owed to [Friend A]. [Friend A] seems to have limited dealings with the applicants, and on the last occasion, informed applicant 1 that the loan between him and her son was none of her business.
I do not accept that the applicants have a genuine fear of being persecuted upon return to China. I have found that they owe money to family, and that they feel shame at the thought of having to rely further on those family members upon return to China, but these feelings do not amount to serious harm. Similarly, I do not consider that any harm would befall them as a result of credit card debt.
I consider that the harm expressed in the protection visa application, namely that they will be threatened or killed, was written by a third person in an attempt to assist them to meet the refugee criterion, without being a genuine reflection of their actual fears.
For the reasons given above, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Do the applicants satisfy the complementary protection criterion for protection?
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
As detailed above, I have not accepted that the applicants face a real chance of harm if returned to their home area in China in the reasonably foreseeable future.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
It follows that I do not accept there is a real risk the applicants will suffer significant harm from [Friend A] or any other person for the reasons set out above as a necessary and foreseeable consequence of their being removed from Australia to China.
When asked if the applicants claimed harm on any other basis on return to China, applicant 2 referred to pain in his leg, seemingly from varicose veins. Applicant 2 is not receiving any treatment or taking any medications for this condition. Applicant 2 did not claim that he would be denied medical treatment in China on his return. I do not consider that the pain experienced by applicant 2 amounts to significant harm as exhaustively defined in s 36(2A).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal is also not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Having found that neither applicant meets the criteria set out in s 36(2)(a) or (aa), it follows that neither 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.
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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