1511751 (Refugee)

[2017] AATA 1911

1511751 (Refugee) [2017] AATA 1911 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511751

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE:13 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 October 2017 at 5:00pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – LGBTI – Same-Sex relationship –  Fear of Violence – State protection not available

LEGISLATION

Migration Act 1958, ss 5H(1)(a)-(b), 5J(1)– (6), 5K-LA, 36(2)(a)-(c), 36(2A) - (2B), 65, 499

Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

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 Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

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] August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] March 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 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 applicant 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 the applicant being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

2. The applicant made claims in her application for protection. She claims to be a person who is attracted to people of the same sex. She asserts to have had a relationship withthe wife of her then boss and was fired from her job as a result. She claims that when her ex-boss found out his wife continued to date the applicant, thugs hired by him attacked the applicant and physically abused her. The applicant claims that she fears being harmed by her ex-boss and his associates, should she return to Malaysia now or in the reasonably foreseeable future. She claims she will face persecution in Malaysia as a lesbian – homosexuality is illegal in Malaysia;

3. The applicant worked as [an occupation] until she travelled to [Country 1] and Australia where she has worked in [a certain industry].

4. On the basis of the information on file and for the purposes of this review I accept that the applicant is a national of Malaysia, which is also her receiving country. I find on the evidence before me that the applicant does not have a right to enter and remain in any third country.

5. The applicant was not interviewed. The delegate refused the application. The delegate found that the applicant had not satisfied the delegate that there was a real chance she 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 applicant was a lesbian.

   Credibility

6. 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.)

7. 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.

8. 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).

9. 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).

10. At hearing the applicant spoke in detail about her same-sex relationships, her life in Malaysia and her fears if she returned.

11. The applicant explained that she had [joined the public service] in 2007. She said that she had been discovered sleeping with one of the other [female employees] and they had been discovered by a female [supervisor] who had taken a photograph of them. This [supervisor] had taken the applicant to a counsellor where they had both pressured the applicant to say that she was a lesbian, asking why she dressed like a boy, what sports she liked, and on and on. The applicant denied it but they did not stop. Then the [supervisor] took her to the [manager], who said to her that she was obviously a lesbian and how dare she not tell the truth. He said that her file would be marked that she was a problem [employee] and they suspected she was a lesbian, and threatened that if they found any further proof she was a lesbian they would take legal action against her.

12. The applicant went back to her place of employment after finishing her [public service role] but she felt that her workplace was aware of what had happened in her [public service role], although she was unable to explain how they would know of this. She said she thought the boss might have known of what had happened – his name was [Mr A]. She said this was the husband of [Ms B].

13. The applicant said she had been having an affair with [Ms B]. She said she and [Ms B] had had a secret relationship since March 2007. [Ms B] confided in the applicant that she was a lesbian but had been forced to marry the boss by her family. When asked she said that people knew or presumed the applicant was a lesbian because of the way she dressed and her appearance. When the applicant [ended her public service role] they continued their relationship. One day, she thought about January 2009, [Ms B] asked the applicant into her office and they kissed, but the boss came back and found them like this. He fired the applicant and threatened her.

14. She was not able to find another job and so she went to [Country 1] for 6 months. She said she had not sought protection in [Country 1] because she did not understand the law.

15. When she returned to Malaysia she met [Ms B]. [Ms B] wanted to continue their relationship and reluctantly the applicant agreed. They would meet at a park at night and have sex. She said this went on for 3 months and they were not caught by anyone in that time. then after three months they were in her car when they saw another car approaching and it was [Ms B’s] husband and he dragged [Ms B] out of the car and into his car. [Ms B] told the applicant the next day to hide as [Mr A] was sending people to get her. they found her on her way to a friend’s place and there were guys in the car and they took her somewhere and beat her up and took photos of her. They drover her back and released her. She said she had tried to tell the police but they were not interested.

16. The applicant said she did not have any support from her family – her mother believed the applicant was half-man, half-woman, or from the police or anyone else, so she decided to come to Australia. In Australia she remained unlawfully after her visa ceased as she was not aware that she could seek protection.

17. She said she feared on return she would not be able to find work as a lesbian, and she would not be able to have a partner and be open about their relationship. She said she would have to hide her status as a lesbian in order not to be harmed by the state, by those [supervisors] from her [public service] days, or by [Mr A]. She said that if she was to go to the police they might look at her file and find the information about [her]. She said although the risk was small there was a risk, and that she would not be able to be open about her sexuality.

18. I discussed with the applicant 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.

19. The applicant responded that she was very frightened to return to Malaysia.

20. At the hearing the applicant provided a personal statement, photographs of her [in her public service role], and articles about the banning of the gay sexuality festival in KL, the Prime Minister stating that the human rights of LGBTI people will not be protected, and several articles on the situation in Malaysia. I have taken all of this information into account and found all of it particularly helpful in assisting my thinking about the status of LGBTI people in Malaysia today. In particular the article by Walter L Willliams was particularly helpful in that he identifies article 377A of the Penal Code as a tool for prosecution of male to male interactions, but also noted that lesbians are oppressed by other rules that enforce dress codes and restrictions on women, noting that women who do not conform to gender expectations in Malaysia can expect harassment from the police and the general population, and that the situation in Malaysia has worsened for gay men and homosexuals.[2]

    [2] Williams, W., Strategies for Challenging Homophobia in Islamic Malaysia and

21. 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. This information is supported and amplified by the articles supplied by the applicant.

22. 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[3]. 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.[4] 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.[5] 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.’[6]

    [3] 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.

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

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

    [6] 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 the applicant’s oral evidence detailed and persuasive and consistent with the country information above. Whilst at times she struggled to provide some detail, such as of the attack by people associated with [Mr A], I find that this is not relevant to the core of her claims. On the evidence before me I accept that the applicant is a homosexual and regards herself as a lesbian. I accept that she was in a relationship with the wife of her boss. I accept that she was mistreated and threatened whilst undertaking her [public service role] on the suspicion that she may be homosexual. I accept that she has been identified or imputed as a lesbian on account of her dress and appearance by her family and her superiors in the defence forces.

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 applicant shares 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 the applicant that she fears being discovered as a lesbian, and feared showing affection to other women in Malaysia for this reason, and modified her behaviour in order to avoid harm. 

4. I have considered her 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 LGBTI people, and as above I accept that her superiors in the [public service] used her suspected homosexuality as a threat on the basis of her appearance and presumed behaviour. 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 rather than an organised exercise of targeting only Muslims. On the country information I find that the authorities will not protect the applicant from further harassment, nor from any intimidation, exploitation, extortion or hate crimes she 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 applicant’s oral evidence about her fears of discovery and her experiences growing up in Malaysia, and the country information noted above, in particular the DFAT report, I find that the applicant remained discreet about her sexuality, and relationship with [Ms B], in Malaysia not by choice, but at least partly because she feared being harmed by authorities or those in society emboldened by the anti-LGBTI sentiments of political and religious leaders. I find that the applicant, in relation to her sexuality, remained discreet due to the threat of harm and in order to avoid persecution. Relevantly, if she were to return and seek another same-sex relationship I find that she would feel compelled to remain discreet for these reasons.

7. I accept that she has modified her 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 applicant is a homosexual and I find that a modification of her behaviour to avoid a real chance of persecution would violate this exception and require her to modify a fundamental characteristic of her identity and conceal an innate or immutable characteristic and her true sexual orientation and/or gender identity.

8. On the evidence before me, including the country information referred to above, I find that the chance of the applicant suffering serious harm for reasons of her sexual orientation or relationship with another woman, 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 she lived openly as a lesbian, would not be remote or far-fetched. 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 applicant, I am not satisfied that the State is willing to offer effective protection measures to the applicant, nor am I satisfied that the applicant would be able to access effective protection measures if returned to Malaysia now or in the reasonably foreseeable future.

10. I find that the applicant’s 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 applicant will suffer persecution for reasons of her membership of the particular social group of homosexuals, if she returns to Malaysia, now or in the reasonably foreseeable future.

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

Conclusion

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies 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

…

(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.

…

Secular China, Nebula, 6.1, March 2009,