1509377 (Refugee)

[2017] AATA 1680

1509377 (Refugee) [2017] AATA 1680 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509377

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE:5 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 05 October 2017 at 1:59pm

CATCHWORDS

Refugee – Protection Visa – Malaysia – Particular social group – Homosexual – Lack

of state protection – De facto relationship – Gender identity

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

Kopalapillai v MIMA (1998) 86 FCR 547

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 dependant

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 Immigration [in] July 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Malaysia, applied for the visas [in] January 2015.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

2. 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.

3. 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 themself 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).

4. 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.

5. 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

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issues in this review are whether the applicants are in a relationship, whether either or both of the applicants has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in Malaysia and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of either or both being removed from Australia to Malaysia, there is a real risk that either or both will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

2. The applicants made claims in their application for protection. They can be summarised as follows:

   ·The first named applicant claims to be a lesbian and in a de facto relationship with the second named applicant, [the second applicant];

   ·She claims that they will face persecution in Malaysia as lesbians – homosexuality is illegal in Malaysia;

   ·Her family will disagree with her relationship with the second named applicant;

   ·As the eldest she is expected to marry and she fears her parents will force her to break up with [the second applicant] and marry if she returns to Malaysia.

   ·The second named applicant did not include her own claims.

3. The applicants lived in Penang prior to travelling to Australia. [The first applicant] worked as a [Occupation 1] and [the second applicant] as a [Occupation 2] until they came to Australia in July 2012. They speak Mandarin and both identify as Chinese Malays.

4. On the basis of the information on file and for the purposes of this review I accept that the applicants are nationals of Malaysia, which is also their receiving country. I find on the evidence before me that neither applicant has a right to enter and remain in any third country.

5. The delegate refused the application. The delegate found that the applicants had not satisfied the delegate that there was a real chance they would be persecuted or suffer significant harm on return to Malaysia, and for the purpose of making those findings appears to have accepted that the applicants were in a de facto partnership and lesbians.

Credibility

1. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

2. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

3. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

4. The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

5. At hearing both applicants spoke in detail about their relationship, their lives in Malaysia and their fears if they returned.

6. [The second applicant] explained that she was not accepted in the community in Malaysia because she dressed like a man. She said that Malaysian society discriminated against people such as her who did not dress in a ‘feminine’ way. She said that she was often met with alarm by other users of the women’s bathrooms. She described her dress as shirt and trousers, sometimes a sports jacket or vest, and has visible tattoos and piercings. She noted that as well as gender concerns her tattoos and piercings had also led the police and others to have concerns that she was part of a gang. She said she could not change the way she dressed because it was the way she was but she always worried about being harassed or arrested for the way she dressed. She noted that there was a fatwa against women wearing men’s clothes and although this only applied to Malays there was an attendant rise in conservatism and restrictions for others in Malaysia.

7. She described being stopped by Malaysian police on a number of occasions. She said once when they were driving she was stopped and asked for her ID and her driving licence. Even though her ID indicated she was female the police officer asked her if she was male or female. He got her out of the car and did a body search because there was no female officer available. She felt very upset by this treatment.

8. She said that she could not tell anyone in Malaysia she was a lesbian as she felt unsafe to do so and was afraid of being taken away or arrested. She noted that she felt unable to hold hands with [the first applicant] and they were always afraid because of the interpretation of religion in Malaysia. She could not do things she wished to in Malaysia such as hold hands or kiss or show affection in public and this distressed her. She said that she was seen as an outsider in Malaysia.

9. Ever been arrested? No. anyone know been arrested for sexuality? I know that in johor, there were two women arrested for their sexuality and being locked up and have been sentenced to spend some time in jail according to reports.

10. [The first applicant] said that lesbians are not respected or well liked in Malaysia, and are vilified by public officials in the media. She said that in Malaysia she could not act in any way to suggest she was a lesbian. In Malaysia she could not hold hands or demonstrate affection with [the second applicant]in any way. She described being taunted and harassed by Malaysian boys who would ask her to come and be with them instead. Her family had tried to convince her to get married. She said she feared they may be arrested, the police are quite corrupt she said and she was also afraid she might be forced to have sex with a police officer or face other harm or mistreatment. She said she also feared Islamic and anti-gay organisations which had the support of the government.

11. I discussed with both applicants country information from the DFAT Country report:

    Sexual Orientation and Gender Identity

    3.89 Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).

    3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.

    3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.

    3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.

    3.93 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a ‘re-education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government ‘viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.

    3.94 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.[1]

    [1] Department of Foreign Affairs and Trade, Country Information Report – Malaysia, 19 July 2016.

12. They responded that this did not reflect the true state of things there; there were lesbians who were harmed for being lesbian. [The first applicant] said that if a police man wanted to target them and harm them in some way he could do that with impunity.  They both said that despite the chances of being arrested being low they were not remote, and they were afraid of it happening to them. [The second applicant] said it was very difficult for her to live in Malaysia because of her ‘male’ dress, and she had found living there a deeply distressing experience. I asked what would happen if they were open about their relationship and they said that they did not think they would have a future at all. They said that even if they moved to KL, it was the same discrimination and mistreatment and prejudice. They said that there would be risks to finding work in Malaysia as they believed that employers would discriminate, especially against [the second applicant]. She noted that she had gotten more tattoos in Australia and would be viewed with suspicion by the police and also potential employees. She explained that she was only able to find work in [Occupation 2] because it was seen as a place for troubled people and even then she refused to wear the women’s uniform and insisted on wearing the men’s uniform, so they made her work [in a less public role].

13. Prior to the hearing the applicants’ representative provided a submission with evidence of the relationship and articles from various news outlets in relation to the current situation for LGBTI people in Malaysia. After the hearing a further submission with several more articles was provided.

14. The DFAT report set out above notes the restrictions imposed on the LGBTI community in Malaysia, and relevantly assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia and that many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.

15. The US Department of State and a number of non-government organisations have all reported on the Malaysian government’s laws and programs and public vilification of LGBT people, providing an environment for societal discrimination and harassment and violence against LGBT people in Malaysia[2]. Older articles note that the Penal Code laws, whilst rarely used, hang over the heads of the LGBTI community and are available as a tool to intimidate, harass, extort and exploit them.[3] More recently, a panel of journalists and activists discussing hate crimes against the LGBTI community has concluded that rising Islamisation in the country was leading to growing intolerance and increased hate crimes, and it was said that LGBTI people faced increasing persecution on a daily basis, and that harm on the basis of religious beliefs overstepped the Federal Constitution and its protections.[4] The UN special rapporteur on physical and mental health reported in 2015 that ‘discriminatory societal attitudes towards LGBT persons prevail in Malaysia and have been exacerbated over the past few decades by the use of a stigmatizing rhetoric by politicians, public officials and religious leaders, and that the criminalization of same-sex conduct and of different forms of gender identity and expression has reinforced negative societal attitudes and has led to serious human rights violations of the rights of this group of the population, including significant barriers in access to health care.’[5]

    [2] US Department of State, “Malaysia 2014 Human Rights Report”; OutRight Action International, Malaysia must recognize and stop hostilities towards LGBT people”, International Gay and Lesbian Human Rights Commission, “Violence: Through the lens of lesbians, bisexuals women and trans people in Asia”, May 2014.

    [3] Lim S.H. 2007, “No sex party going on at Penang fitness centre, say those arrested‟, Fridae website, 22 November

    [4] Mei Lin, M., 2016, “Growing intolerance of LGBTIQ community due to Islamisation, forum told”, Malay Mail Online, 21 August,

    [5] UN Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Addendum : Visit to Malaysia (19 November–2 December 2014), 1 May 2015, A/HRC/29/33/Add.1, available at: 5 October 2017]

1. I found both applicants’ oral evidence detailed and persuasive and consistent with the country information above. Whilst at times they struggled to provide some detail, I find that this is explained by a reasonable reluctance to discuss their sexuality, particularly given the taboo on this in Malaysia. On the evidence before me I accept that the applicants are homosexuals and consider themselves lesbians. I accept that the two of them have been in a long term relationship with each other in Malaysia and Australia.

2. I find that homosexuals are a particular social group as defined by s.5L of the Act as the characteristic of homosexuality is shared by each member of the group; and the applicants share this characteristic; and the characteristic is an innate or immutable characteristic and is so fundamental to the members identity or conscience, the member should not be forced to renounce it; and the characteristic distinguishes the group from society and is not a fear of persecution.

3. I accept the evidence of both applicants that they feared being discovered as lesbians both individually and also feared the discovery of their relationship, and feared showing affection to each other in Malaysia for this reason, and modified their behaviour in order to avoid harm.  I accept that [the second applicant’s] identity is bound up in her dress which is considered ‘male dress’ in Malaysia, as are her visible tattoos. I accept that [the second applicant] was stopped and searched by a male police officer on one occasion purely on the basis of her appearance in order to confirm her gender and that she was also required by her employer to work [in a less public role] because she refused to wear the female uniform.

4. I have considered their claims in the context of the country information set out and summarised above. I consider that the country information is indicative of ongoing discrimination against LGBTI people in Malaysia. As the delegate indicated, discrimination of itself may not meet the threshold of serious and significant harm. However, the country information supports a view that Malaysia is becoming less tolerant of LGBTI people rather than more, that the laws create a chilling effect and can and have been reported to have been used to harass, extort and exploit people, and as above I accept that a police officer searched [the second applicant] only on the basis of her appearance. I note the information that the legal situation and the Islamisation of Malaysia provides a degree of impunity for hate crimes and I do not accept that such crimes would be confined only to the targeting of Muslims but against LGBTI people of all ethnicities because the actions are those of non-state actors acting in a permissive environment. On the country information I find that the authorities will not protect the applicants from further harassment, nor from any intimidation, exploitation, extortion or hate crimes they may experience.

5. I find that the harassment, intimidation, exploitation, extortion and hate crimes raised in the country information may reach the level of serious harm, especially on a cumulative basis, amounting to significant physical harassment of significant physical ill-treatment.

6. Given the applicants’ oral evidence about their fears of discovery and their experiences growing up in Malaysia, and the country information noted above, in particular the DFAT report, I find that the applicants remained discreet about their sexuality, and relationship, in Malaysia not by choice, but because they feared being harmed by authorities or those in society emboldened by the anti-LGBTI sentiments of political and religious leaders, and I find that the applicants remained discreet due to the threat of harm and in order to avoid persecution.

7. I accept that they have modified their behaviour in the past to avoid harm. Section 5J(3) requires a person to take reasonable steps to modify their behaviour, but specifically excludes a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation. I have found that the applicants are homosexuals and I find that a modification of their behaviour to avoid a real chance of persecution would violate this exception and require them to modify a fundamental characteristic of their identity and conceal an innate or immutable characteristic and their true sexual orientation and/or gender identity.

8. On the evidence before me, including the country information referred to above, I am unable to find with confidence that the chance of the applicants suffering serious harm for reasons of their sexual orientation or relationship with each other, in the form of significant physical harassment or significant physical ill-treatment from the authorities or those in society emboldened by the anti-LGBTI sentiments of political and religious leaders, if they lived openly as a lesbian couple, would be remote or a far-fetched possibility. I further find on the country information that such threat of serious harm would be present throughout the country.

9. As above, I accept that the laws criminalising homosexual acts are rarely enforced, but these laws have not been repealed and as above I consider that the law, and the ongoing anti-LGBTI sentiments of political and religious leaders provides an environment permissive and conducive to discrimination, harassment and violence against LGBTI people in Malaysia. Taking account of the country information and the particular circumstances of the applicants, I am not satisfied that the State is willing to offer effective protection measures to the applicant, nor am I satisfied that the applicants would be able to access effective protection measures if returned to Malaysia now or in the reasonably foreseeable future.

10. I find that the applicants’ membership of the particular social group of homosexuals, is the essential and significant reason for the persecution, and that the persecution involves ‘serious harm’ as it amounts to significant physical harassment and significant physical ill-treatment as listed in subsection s.5J(5), and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).

11. I find that there is a real chance, that is, one that cannot be discounted as remote, that the applicants will suffer persecution for reasons of their membership of the particular social group of homosexuals, if they are returned to Malaysia, now or in the reasonably foreseeable future.

12. Therefore I am satisfied that the applicants’ fear of persecution in Malaysia is well-founded, and I find that the applicants are refugees as defined by s.5H of the Act.

CONCLUSION

1. For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations because the applicants are refugees, as defined by the Act. Therefore the applicants satisfy the criterion set out in s.36(2)(a).

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Sean Baker
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.

…

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 them 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.

..

36Protection visas – criteria provided for by this Act

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(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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