1511818 (Refugee)

[2017] AATA 2073

1511818 (Refugee) [2017] AATA 2073 (12 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511818

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Amanda Paxton

DATE:12 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 12 July 2017 at 4:18pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Political opinion – Berish 3 rally participant – Political activist – Religion – Muslim heritage – Atheist – Secularist – Family disapproval – No Well-founded fear of persecution – No real risk of significant harm – No right to enter and reside in a third country – Credibility issues

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR
Selvadurai v MIEA & Anor (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] February 2015.

3. The applicant appeared before the Tribunal on 7 December 2017 to give evidence and present arguments.

4. A copy of the delegate’s decision [dated] August 2015 refusing the applicant’s current application for protection was provided to the Tribunal together with the applicant’s application for review. 

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.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.

    Credibility

11. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

12. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

13. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

14. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

15. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out (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.)

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant presented claims for protection in a visa application [in] February 2015. The applicants’ written claims at Questions 90 – 97 of the application are on the Department’s file CLF [file number] and can be summarised as follows:

    ·     Religion – the applicant claims he was born and raised as a Muslim, but has now decided to be non-religious.  This conduct is not accepted by his family and community. They will treat him badly and embarrass him in the media.

    ·     The applicant has experienced verbal threats and exclusion from society.

    ·     The Islamic authorities will take action against him.

    ·     Political opinion – the applicant claims he “spread news” on the internet and participated in several protest rallies against the ruling government in Malaysia.

    ·     The applicant claims there is no freedom of speech or religion in Malaysia, and that the current ruling government will use the Sedition Act to persecute people who dare to oppose them.  As yet he has experienced no harm as a result of his opinions but he is sure he will.

17. The applicant submitted a supporting statement with his review application on 26 August 2015. He stated that he fears harm because, by deciding to be non-religious, has left Islam. He cannot give proof of this because it is an inner belief. However, people will have noticed that he has not practised Islamic obligations for several years, such as praying five times a day and fasting during Ramadan. He has kept silent about his religious views so far but he questions how long this will last.

18. The applicant states that he could not bear it if people spread news about him, and he believes people will question him and some will consider taking him to the Islamic authorities.

19. At the hearing, the applicant further claimed that as a non-believer in Islam, he will be regarded as an apostate and will face sanctions from society and Islamic authorities.

20. In this submission, the applicant also put the view that Malaysia is governed by a corrupt government. He stated that when people arise to demand justice, the Malaysian government abuse their power by oppressing human rights and freedom of speech. He claims all mainstream media and government departments are under absolute control of the government.

21. The applicant states in this submission that he was involved in a Bersih rally, demanding a clean election process. He stated he spread news exposing government misconduct through a post on the facebook page of [a political group], a forum for voices critical of the government and to expose government misconduct.   

    Country of nationality

22. The applicant claims to be a citizen of Malaysia, and provided a copy of the biodata pages of his Malaysian passport to the Department and brought his passport to the Tribunal hearing.[1] On this basis, the Tribunal is satisfied the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is the country of reference for the purposes of assessing the applicant’s claims under ss. 36(2)(a) and (aa).

    [1] CLF 2015/10083, f. 44.

    Third country protection

23. On the evidence before it, the Tribunal is also satisfied that, for the purposes of s.36(3) of the Act, the applicant does not have a right to enter and reside in a third country.

    Assessment of claims

24. 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(1) 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 his receiving country of Malaysia, there is a real risk that the applicant will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

25. At his Tribunal hearing, the applicant expanded on his claims in a generally straightforward and open manner, and generally provided background information consistent with that contained in his brief written application. On this basis, the Tribunal accepts the applicant’s evidence that he was born in Kuala Lumpur, Malaysia, in [year] as [one] of [a number of] siblings. The Tribunal accepts that the applicant was sent to his grand-parents’ house [in] Pahang, because his parents were busy, and after his grandmother passed away he stayed with his aunt and uncle; that he returned to his parents’ house in Kuala Lumpur when he was [age] years old in 2001; that his parents then separated and his mother moved to Ipoh, Perak and his father remained in Kuala Lumpur; and that the applicant then lived with his mother for [a number of] years before staying with his father in Kuala Lumpur where eventually his parents were re-united.

26. On the same basis, the Tribunal accepts the applicant attended seven schools, and grew up in both rural and urban areas. The Tribunal accepts that after he finished school the applicant worked [in] Johor before [working in another area].

27. The Tribunal accepts the applicant completed a Diploma [in] 2010 in Selangor; and that during his study he initially lived in a hostel but then commuted from his family home using public transport.

28. On the basis of the applicant’s consistent evidence, the Tribunal accepts the applicant then had a range of employment in Kuala Lumpur in [other] [areas].

29. On the consistent evidence of the applicant the Tribunal accepts the applicant travelled to [Country 1] twice to explore business opportunities and to [Country 2] for holiday, in 2014.

    Does the applicant have a well-founded fear of persecution or a real risk of significant harm for reason of religion?

30. The Tribunal has considered the applicant’s claim to need protection from serious or significant harm due to his religious beliefs. In this consideration, the Tribunal accepts the applicant’s view that his diverse background led him to be more liberal in his thinking than others, including in a religious sense. The Tribunal accepts the applicant’s evidence that through the period of his tertiary studies he became more questioning of society’s values. The Tribunal accepts the applicant’s testimony that through his tertiary education, he started to feel he did not belong to the society and started thinking about leaving Malaysia. The Tribunal accepts the applicant’s statement that he felt he could not leave Malaysia at that time because he was on a [scholarship] and would have been required to repay a lot of money.

31. The Tribunal considered the applicant’s evidence was convincing that, over time, he questioned whether God existed, and the value of religion in society. The Tribunal accepts the applicant’s evidence that he reached the view that religions are merely ancient tradition rather than truth, and that he believes we are the product of evolution. The Tribunal accepts the applicant’s description of his beliefs as an atheist and non-believer in Islam. The Tribunal also accepts the applicant’s evidence that he has a secular view of society.

    Harm from family/friends

32. The Tribunal has considered the applicant’s claim that he faces persecution or significant harm from his family if they were to become aware of his views as a non-believer in Islam, atheist and secularist.

33. The applicant indicated that his views as a non-believer were shaped over many years and were formed by 2010 when he completed his studies, and the Tribunal notes the applicant arrived in Australia in January 2015. The applicant gave evidence that he lived at home with his family for over [a number of] years as a non-believer in Islam, atheist and secularist. He told the Tribunal that when he was not at work, he stayed in his room because he did not get on well with other people including his relatives. The applicant gave evidence that during this time, he did not participate in any religious celebrations such as Eid il Fitr, attend mosque or observe Islamic rituals. He stated that the last time he celebrated Eid with his family was in 2007.

34. The applicant told the Tribunal emphatically that he has never spoken with his family about his views at any time, and claimed he would face disapproval, humiliation and exclusion from his family if he were to disclose his non-belief in Islam and atheistic, secular views. He told the Tribunal that he did not explain to his family the reasons for his non adherence to Islamic ritual but kept his views to himself. However, the applicant also claimed that his family and people around him will have noticed his conduct, and the Tribunal considers that it is unlikely that after many years of absence from religious celebration or observance, his family and friends would not be aware that he has ceased Islamic observances. On this basis, the Tribunal finds the applicant’s non-observance of Islam was noticed by the applicant’s family.

35. In considering the applicant’s claim to face serious or significant harm from his family due to his religious beliefs, the Tribunal has taken into account that the applicant was able to continue living at home with his family with no adverse consequences despite his non-observance in Islamic religious matters. The Tribunal considers that had the applicant’s family the intention to show disapproval, humiliate and exclude the applicant for his non-religious conduct, they had every opportunity to do so, but they did not. Looking to the future, the Tribunal considers the applicant’s family’s past conduct is not indicative that his family will seriously or significantly harm the applicant because of his non-observance of Islam. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm from his family for this reason. 

36. The Tribunal has also considered whether the applicant faces serious or significant harm from his family because he no longer believes in Islam and notes the applicant stated that he faces disapproval, humiliation and exclusion from his family if he were to disclose his non-belief in Islam and atheism. In this respect, the Tribunal notes that despite the applicant’s non-observance of Islamic religious matters over a long period, which he said was noticed, the applicant has not been required to explain the reasons for his non-observance to his family or to anyone else. The Tribunal considers that if his family members or anyone else had any concerns that the applicant was a non-believer in Islam, or atheist, they would have confronted him about his faith and enquired about the reasons why he was no longer a practising Islamic ritual. According to the applicant’s evidence at the Tribunal, they did not. The Tribunal takes into account that no family members or friends took action to require the applicant demonstrate commitment to the Islamic faith. The Tribunal concludes that the applicant’s status as a non-believer in Islam and atheist was not a matter of concern for the applicant’s family. The Tribunal notes the applicant continued to live in the family home with the support of his family without adverse interest shown in his faith. Looking to the future, on the basis of their past conduct, the Tribunal considers the possibility that the applicant faces a real chance of serious harm or a real risk of significant harm from his family arising from his non-belief in Islam and atheist views is remote. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm from his family for this reason. 

37. The Tribunal has also considered whether the applicant faces serious or significant harm from his family because he holds secularist views, and as above notes that the applicant was able to live in the family home with the support of family and some friends, and to engage in work and everyday activities. On this basis, the Tribunal considers the possibility that the applicant faces a real chance or a real risk of harm from his family or anyone else arising from his secular views is remote. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm from his family for this reason. 

38. The Tribunal has taken into account the applicant’s evidence that he has not disclosed his non-Muslim, atheistic or secular beliefs and that he does not want to be public about his religious views because he has not wanted to risk attracting attention, and the Tribunal has considered whether the reason for the applicant’s discretion was his fear of persecution. In this consideration the Tribunal takes into account the applicant’s strongly expressed personal preference to maintain his views privately, and formed the view that he is a private person who does not like attention. The Tribunal has also taken into consideration that the applicant was not been compelled by family friends or authorities in the past to comply with Islamic practice or to modify his behaviour in any way. The Tribunal further also notes that since being in Australia he has taken no action to express his views publically. The Tribunal would expect that if the applicant had the desire or motivation to express his non-Islamic, atheistic, secular views publically that he would have done this in Australia, but he has not.  On the evidence before it, the Tribunal does not accept the applicant kept his views to himself so that he did not attract attention because he feared serious or significant harm from family, friends, the community or the authorities. The Tribunal does not accept the applicant faces a well-founded fear of persecution now or in the foreseeable future for this reason.

1. The Tribunal accepts that the applicant may feel socially isolated from his family and friends as a result of his religious opinions. The Tribunal noted the applicant stated that he secluded himself away from others because he did not get along with people. The Tribunal also notes the applicant’s evidence that he has not been in communication with his mother since arrival in Australia and is rarely in touch with his father. He told the Tribunal that his father tries to reach him by message every now and again. The applicant stated that whenever his father asks about his religion, how his prayer or fasting going, he keeps his thoughts to himself. His family do not know his feelings about his religion, and only certain of his friends know of his views.

2. The Tribunal acknowledges that the applicant’s poor relationship with his family may be an uncomfortable situation for the applicant. However, the Tribunal noted at the hearing that the applicant is now [age] years old, and has been living successfully independently from his family for a number of years. The applicant agreed that he is an adult and can live independently, but stated he just wants to live in peace and start a new life. On the evidence before it, the Tribunal considers the applicant will continue to live independently in Malaysia. The Tribunal has had regard to the non-exhaustive examples of serious harm in s. 5J(5) of the Act, and the definition of significant harm in 36(2A) of the Act, and finds that the level of discomfort the applicant may feel from lack of contact with his family does not constitute either serious or significant harm. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm from his family or friends for this reason. 

3. The Tribunal enquired about the applicant’s friends’ response to his views. He stated that he kept his views secret but he indicated that in 2014 he argued openly with his friends about religion and stated that “most of them” did not accept his views. The Tribunal asked whether his disapproving friends took any action against the applicant and he gave evidence that they did not. On the basis of his friends’ past conduct, the Tribunal considers that the possibility that his friends will seriously or significantly harm the applicant is remote. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm from his friends.

   Harm from the authorities

4. The Tribunal has considered the applicant’s claim that when the community finds out the applicant no longer believes in Islam, people will publish his circumstances and he will be humiliated, face harassment, discrimination, and violence. The applicant said he would be of interest to the community because as an atheist, he is an apostate.

5. In consideration of this claim, the Tribunal has taken into account the following country information, put to the applicant at the hearing, from the Department of Foreign Affairs and Trade (DFAT) relevant to matters of religion in Malaysia:

   3.19 While the Constitution guarantees freedom of religion, the practice of religions other than the state religion of Sunni Islam is subject to some constraints. The propagation of other religions, including non-Sunni versions of Islam, is controlled and restricted by laws such as Selangor state’s Non-Islamic Religions (Control of Propagation amongst Muslims) Enactment 1988. Several organisations advocate the rights of minority religions, including the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, which is an inter-faith committee established in 1983, and continues to have an active relationship with the Malaysian Government.

   3.20 Individuals born in Malaysia of Malay ethnicity are automatically classed as Muslim. Their Muslim status is recorded on their birth certificate and on their national identification card. National identification cards do not distinguish between Sunni and Shia Muslims. Muslims are identified on the card’s surface but for members of other religions, it is encrypted in the card’s smartchip. Married Muslims must carry a special photo identification of themselves with their spouse as proof of marriage.

   3.21 Malaysia has a two-track legal system comprising civil law, based on English common law at federal level, and sharia-based law, which is administered at state level and varies state by state. Matters considered by states under sharia-based law relate to; succession, betrothal, marriage, divorce, adoption, guardianship, approval of mosques or any Islamic place of worship, and, broadly, the ‘deterioration of matters of Islamic law and Malay customs’. The federal government delivers national rulings and provides guidance to state religious departments through the National Department of Islamic Development (JAKIM) and the National Fatwa Council. These bodies sit within the Prime Minister’s portfolio.

   3.22 Sharia-based law applies only to ‘persons professing the religion of Islam’. However, the enforcement of sharia sometimes affects non-Muslims, particularly on matters involving religious conversion and family law.

   3.23 On 10 February 2015 Prime Minister Najib launched Malaysia’s first national Sharia index, designed to evaluate and assess the government’s performance against the five aspects of sharia; the protection of religion, protection of life, protection of the mind, protection of the race and protection of property. The index will focus on eight areas of government policy; law, politics, the economy, education, health, culture, infrastructure and environment and social issues. On 27 March 2016 the Malaysian government announced it had obtained a score of 75 per cent on the index, categorised as ‘very good’, but would aim for 80 per cent for 2016. At the time of reporting, it was unclear how this would be achieved.

   3.26 In light of the increasing influence of conservative Islam over recent years, attitudes toward religious piety have created a level of societal discrimination within Malaysia’s Muslim community. DFAT is aware of reports of individuals notifying religious enforcement officers (see ‘State Islamic Religious Departments below at 5.9) if community members are not attending mosque. It is not clear what the repercussions would be for not actively worshipping.

   3.32 Conversion from Islam is extremely difficult. In May 2014, Prime Minister Najib said the government would ‘not tolerate any demands or right to apostasy by Muslims’. An ‘apostate’ is a person who formally attempts to renounce their Muslim status. Despite the guarantee of freedom of religion under Article 11 of the Constitution, the civil courts have ruled that they have no power to intervene in apostasy cases which fall under the jurisdiction of Malaysia’s sharia courts.

   3.34 Individuals who have attempted to convert from Islam have faced long and expensive legal battles, involving both the federal civil courts and state sharia courts. An individual wishing to convert from Islam must first obtain permission from a state sharia court. The court will declare them to be an apostate. State sharia courts rarely grant such declarations and, in some states, including Melaka, Pahang, Perak and Sabah, apostasy is a crime punishable by fine, a jail sentence, or caning. In Kelantan and Terengganu the punishment can extend to the death penalty, however there are no records of the death penalty being applied in relation to apostasy. Individuals who attempt to convert from Islam have been compelled to attend religious rehabilitation centres. The US Department of State reported that, in many cases, converts conceal their new beliefs and Muslim women and girls face social pressure to continue wearing a headscarf (‘tudung’).

6. In its consideration of this claim, the Tribunal also takes into account the case of Lina Joy raised by the applicant at the Tribunal hearing and in his submission to the Tribunal, who according to the applicant faced threat of harm and death as an apostate due to her conversion to Christianity, as an example of harm he might encounter in Malaysia. He stated that he could not bear to have news of this kind spread about him. The Tribunal accepts the applicant’s evidence that Lina Joy had to go into hiding after publicity following her application to the court to have her religion as a Christian identified officially. The Tribunal has also taken into account of a Report of the International Humanist and Ethical Union of 2014, provided to the Tribunal by the applicant, reporting “a surge in the number of officials and political leaders globally agitating against non-religious people” and indicating that the Malaysian Prime Minister has suggested secularism is “deviant” and a threat to Islam. This report identifies Malaysia as a country that imposes penalties, including the death penalty, on people professing atheistic belief.[2] The Tribunal has also taken into account an internet news report of CBC News of 2015, provided to the Tribunal by the applicant, concerning a Malaysian international student in Canada, expressing fear of persecution because he is openly gay and atheistic.[3] 

   [2] International Humanist and Ethical Union, Freedom of thought Report,  AAT ff. 48 - 51

   [3] AAT, ff. 46 - 46

7. The Tribunal has considered the range of country information above, and accepts the applicant, as a person of Malay ethnicity, is classed as Muslim. The Tribunal accepts that as a Muslim, the applicant is subject to the common law and sharia-based law through state religious departments. The Tribunal further accepts that the influence of conservative Islam is increasing and that there can be expectations of religious piety in the community.

8. The Tribunal discussed with the applicant that he lived in Kuala Lumpur, a very populous and diverse place, where it was unlikely given his reserved conduct that he will attract attention for his failure to observe Islam. While the applicant agreed, he told the Tribunal that religious matters cannot be taken lightly in Malaysia, and if you speak critically there will be problems. He stated that in Malaysia he remained silent about his views, but he questioned how long he could continue to do this, and claimed his views would not be accepted if known. He stated that his non-observance of Islam could be drawn to the attention of the religious department and he would be found to be an apostate and punished.

9. The Tribunal has taken account of the country information accepted above, and the applicant’s own circumstances, and notes that while the applicant is atheistic and claims he no longer believes in Islam or any religion, he has not converted to any religion other than Islam, nor has he indicated any motivation to publicise his beliefs in a formal way. As above, the Tribunal has considered why the applicant has acted in a discreet manner in the past. As above, the Tribunal formed the view that the applicant was discreet about his views in the past because he is a private person. On the evidence of the applicant, he has not made public declarations of his views since arrival in Australia and he indicated to the Tribunal no motivation to do so. In this respect, the Tribunal does not accept the applicant’s circumstances are similar to those of Lina Joy. The Tribunal does not accept that the conclusion can be drawn from her circumstances that the applicant has a real chance of persecution or a real risk of significant harm in Malaysia.

10. The Tribunal accepts that the applicant may not wish to observe Islamic religious practices on return to Malaysia, now or in the reasonably foreseeable future. The applicant has not claimed that he would seek to publicise his religious views if he returned to Malaysia, and as above, the Tribunal finds this behaviour is not so as to avoid a real chance of persecution Malaysia. The Tribunal does not accept that the applicant’s religious views will come to the attention of the Malaysian authorities as a result of the applicant’s conduct. The Tribunal accepts DFAT’s advice that they are aware of reports of individuals notifying religious department officers if community members are not attending mosque, while DFAT are unaware of the repercussions. However, taking into account the country information, put to the applicant, and noting that no-one in the community has indicated any interest to report him to the authorities in the past for his failure to observe Islam, the Tribunal does not accept that the applicant in his circumstances will attract the adverse attention of the state religious department for his religious views, as a someone no longer observing Islamic ritual. The Tribunal does not accept that there is a real chance or a real risk the applicant would be found to be an apostate and harmed on that basis.

11. The Tribunal has considered whether the applicant faces a real chance or a real risk of serious harm because he will be considered by the sharia court to be an apostate. The Tribunal notes the advice above that an apostate is a person who formally attempts to renounce their Muslim status. The applicant indicated to the Tribunal no desire, intention or motivation to make any formal statement to the authorities about his religious beliefs, and as above, the Tribunal formed the view that this was because he is a private person and not because he feared persecution. The Tribunal does not accept the applicant in his circumstances will attract the adverse attention of the state religious department because, as an atheist, he makes a formal attempt to renounce his Muslim status. On this basis, the Tribunal does not accept there is a real chance the applicant will be declared an apostate by the sharia court. The Tribunal does not accept that there is a real chance or a real risk the applicant would be found to be an apostate and face any sanction for this reason.  

12. The applicant told the Tribunal that Malaysia is debating implementation of full sharia law, where apostasy is punishable by death and considered the biggest sin, and stated that this is why he keeps his beliefs secret. The Tribunal accepts the country information above, put to the applicant, that in some Malaysian states, apostasy can carry strong penalties. However, the Tribunal notes the applicant’s home area of Kuala Lumpur is not one of these states and on the country information before it, sharia law is not going to be imposed in Kuala Lumpur or across Malaysia as a whole now or in the foreseeable future. The Tribunal considers the possibility the applicant will be subject to sharia law because it will be imposed across Malaysia is remote. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm from the imposition of sharia law in his home area of Kula Lumpur in Malaysia.

    Publicity and public humiliation

13. The applicant claims people will publicise the applicant’s story, and that he could not stand the humiliation. By way of example, the applicant referred to Alvin Tan, a Malaysian student blogger, who became known for various pornographic activities on social media and later for social media criticism of Islam leading him to live in exile in Canada, and to be the subject of mocking commentary on social media. The Tribunal has considered the applicant’s circumstances and notes they are very different from those of Alvin Tan, who publicised his renunciation of Islam in exhibitionist and confrontational terms. The Tribunal accepts that on return to Malaysia, eventually people around the applicant may, as he indicated, “start to notice him, notice that he is not attending mosque.” The Tribunal accepts that he may not be able to “keep this secret.” However, on the basis of all the applicant’s evidence, he is a private and “secluded” person and on the evidence before it, he has no motivation to change his conduct. The Tribunal does not accept the applicant will draw attention to himself in the kind of terms displayed by Alvin Tan, or in any way as to elicit an adverse response from the community or authorities. The Tribunal does not accept that any state or non-state agent will publicise the applicant’s circumstances or humiliate him because of his non-belief and non-observance of Islam. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm from any state or non-state agent on this basis.

14. As above, the Tribunal has considered the applicant’s claim that he has not disclosed his secular views to anyone. However, the Tribunal notes that he has not participated in any religious observance since 2007 and in these circumstances the Tribunal does not consider the applicant has been concealing his secular beliefs. The Tribunal considers he has been living according to his beliefs within the community with no adverse consequences. Further, as above the Tribunal finds that this behaviour is because the applicant is a private person who does not wish to attract attention to himself for this reason and not because he fears serious or significant harm. Looking to the future, on the evidence before it, the Tribunal considers the applicant will to continue his current behaviour in Malaysia, and as in the past will not face a well-founded fear of persecution or a real risk of significant harm for reason of his secular views. 

    Societal discrimination

15. The Tribunal has considered the applicant’s claim that in the event people in the community became aware that he does not believe in Islam and holds atheistic views, he would be subject to harassment and discrimination from community members across all Islamic society in Malaysia. On the basis of the country information above, the Tribunal accepts that there may be a level of societal discrimination against a person who is not participating in the Islam community. However, the Tribunal takes into account the findings above that while no longer holding Islamic beliefs and as an atheist, the applicant was able to live without adverse consequence in Malaysia, maintaining employment such that he could earn a sound income, travel overseas to explore business opportunities and for leisure. In the applicant’s circumstances, the Tribunal considers the evidence indicates that the possibility the applicant faces harassment and discrimination from the community as a non-believer in Islam and an atheist is remote. The Tribunal further takes into account that the applicant has not publicised his religious views in the past and he has not indicated any intention or motivation to do this in the future, and its finding that this has been because the applicant is a private person. The Tribunal also notes the applicant has not been required to modify his behaviour such that it conflicts with his beliefs. Taking all the evidence into account, the Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm on this basis.

16. In his Protection visa application, the applicant declared that he has experienced verbal threats and exclusion from society arising from his religious opinions. On further enquiry at the Tribunal hearing, the applicant stated that people displayed disapproval of his views verbally but he indicated that he did not face threats of harm from anyone. The Tribunal enquired about the applicant’s exclusion from society, and the applicant indicated on a number of occasions that he chose not to associate with people, that he did not get on with people. At the same time, he indicated that he socialised with friends and he had support from some friends who were aware of his views as a non-believer in Islam, atheist and secularist. He further indicated that he held responsible employment with a company. On the evidence before it, the Tribunal drew the conclusion that the applicant was not excluded from society for any reason. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm from societal exclusion arising from his religious views or any other reason.    

    Does the applicant have a well-founded fear of persecution or a real risk of significant harm for reason of his political opinion?

1. At the Tribunal hearing the applicant discussed his claims to need protection due to his political opinion, stating that he was upset about the current government, especially its corruption and became a political activist. When the Tribunal enquired further about the nature of this activity, he stated that in 2013 he posted a story on [a political group’s] facebook page, a forum for voices critical of the government and to expose government misconduct.  He stated he did not use his name and was careful to keep his identity secret, that he acted by himself and tries his best to keep everything he does in secret. However, he claims he believes that the Police Special Branch investigate any political opposition, and he suspects they have his story and have identified him somehow because at some time at the end of March 2013, he was stopped by four motorcycles and the people questioned why he was commenting about the government.

2. The Tribunal asked the Tribunal why he had omitted this significant incident until this time, noting that he did not mention this in his application of in later submission. The Tribunal did not have any response. The Tribunal would expect given the significance of this incident to this claim to need protection for political reasons, that he would have raised it at an earlier time had it a basis in fact. This led the Tribunal to have serious doubts about the credibility of this claim. The Tribunal also notes that the applicant in his discussion of his claim, had, generally been direct and fluent in his responses, however in response to further questions about this incident, he was very vague. He hesitated when asked when this incident occurred before stating that it occurred when he was going home after work. He does not know who they were or how they identified him from the facebook post but they must be government supporters because they warned him they would beat him up if he wrote more. The applicant stated that he did not publish anything after that. The Tribunal found his response did not have the spontaneity it would expect from someone speaking from his own experience.  Taking these matters into account, the Tribunal did not find the applicant’s evidence in this respect to be credible. On this basis, the Tribunal does not accept the applicant posted critical posts on [a political group’s] facebook page or that he was identified, although he did not use his real name, and warned by government supporters to refrain from further publications.  The Tribunal does not accept the applicant has a well-founded fear of persecution on this basis. Further, the Tribunal finds the applicant does not face a real risk of significant harm on this basis.

3. The applicant told the Tribunal that he attended the Bersih 3 rally in 2013, and said it was chaos. He described the police using waterguns and tear gas and said he ran away. He described himself as a participant and supporter, not an organiser of the rally. The Tribunal accepts the applicant attended the Bersih 3 rally. Similarly, the applicant stated he participated in protest rally for Bersih 5.0 in [City 1 in Australia] in November 2016, as a supporter along with about 1,000 – 2,000 people there. The Tribunal accepts the applicant attended these events as a participant and supporter. He also said he does not emphasise his claim for protection on the basis of his political views.

4. In considering the applicant’s claims to have participated in Bersih rallies, the Tribunal has taken account of the following country information, put to the applicant at the hearing, from the Department of Foreign Affairs and Trade (DFAT) relevant to political protest and the Bersih movement in Malaysia:

   The right to protest/peaceful assembly

   ·     The Malaysian constitution states that all citizens have ‘the right to assemble peaceably and without arms’, however, in practice the government closely administers political assemblies and rallies under the Peaceful Assembly Act (PAA) and the Criminal Code.  Permits can be difficult to obtain and can be restrictive in their application.  The PAA requires organisers to submit notice of a rally to authorities ten days in advance.

   ·     The Constitution allows restrictions on freedom of speech ‘in the interest of the security of the Federation… [or] public order.’  The time, place and manner of public gatherings require police approval under the Peaceful Assembly Act 2012.

   ·     Protests and demonstrations occur from time to time, including the peaceful ‘Bersih 4’ (Coalition for Clean and Fair Election) rallies in August 2015.

   Bersih

   ·     Electoral reform NGO, Bersih, a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency and free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4).  The rallies attracted thousands of protesters and were supported by opposition parties.

   ·     Bersih published a report in March 2014 condemning the Election Commission’s lack of independence. The report claimed that Malaysia’s electoral system failed to meet international standards as the rural vote was overrepresented.

   ·     All four Bersih protests have called for transparent government and strengthened parliamentary democracy in Malaysia.

   Government response to protest action

   ·     Since 2013, the Malaysian Government has demonstrated an increasing intolerance of anti-government criticism and freedom of expression and assembly through the introduction of several legislative reforms and the application of broad interpretations of existing legislation.  In some instances, such as the filing of spurious criminal charges, this amounts to legal harassment.  A small number of high-profile opposition leaders or organisers have faced official harassment through the application of Malaysian law, particularly the Peaceful Assembly Act (PAA), Sedition Act, Criminal Code and occasionally, sodomy or corruption charges.

   ·     Individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds.

   ·     The PAA was used to charge eight individuals involved in the 28 February, 21 March and 28 March 2015 ‘#KitaLawan’ protests held in support of Anwar Ibrahim.  Those arrested included members of the opposition People’s Justice Party (PKR) and organisers of the Bersih rallies.  In February 2014, Karpal Singh, Anwar’s lawyer and former National Chairperson of the opposition Democratic Action Party (DAP), was convicted of sedition for a second time.

   ·     The Bersih 4 rallies on 29 to 30 August 2015 saw approximately 100,000 people, mostly opposition parties and their supporters, civil society activists and Chinese Malaysians, take to the streets in Kuala Lumpur to call for the resignation of Prime Minister Najib in light of the 1MDB     (1 Malaysia Development Berhad state investment fund) corruption claims.  The protest was peaceful and no violence was reported, despite the government declaring the protest illegal and banning the yellow t-shirts with ‘Bersih’ print that were worn by the protestors.  Smaller rallies were also held in Melacca, Penang, Kuching, and Kota Kinabalu with a small number of arrests. This was an improvement on the July 2011 Bersih 2 protest where the police used tear gas and water cannons to break up the protest and made approximately 1,500 arrests.

   DFAT assessment regarding the risk of arrest

   ·     DFAT assesses that protesters face a low risk of arrest when engaged in political rallies.  Such individuals have commonly been released on bail shortly following their arrest (a 2016 article in The Huffington Post commented that 1,667 demonstrators arrested at the Bersih 2.0 rally in July 2011 were released without charge[4]).  High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code.

   [4] 2016, The Huffington Post, Malaysia’s Bersih 5 rally: protesters weigh the cost of action under a repressive regime, 18 November. Sourced at >

   The Tribunal also drew on information from an article in The Straits Times[5]  which, inter alia, indicates that:

   ·     The Bersih 3.0 rally on 28 April 2012 was held in response to the Public Select Committee release of a report in early April 2012 of its findings on electoral reform.  The report was passed in the House of Representatives with no debate between the opposition and ruling parties.  An opposition minority report was not included in the final report and none of Bersih's demands were met. The protest was peaceful as the participants marched from various locations towards Dataran Merdeka.  But scuffles broke out when some protesters broke through a police barricade, with police riot units responding with chemical-laced water cannons and tear gas.  Hundreds of protesters were arrested.  Opposition leader Anwar Ibrahim and five others were charged with participating in a street protest but a Sessions Court later ordered a discharge not amounting to an acquittal.

   ·     Bersih 4.0 is the fourth rally planned for three cities on August 29-30 2015 to push for Prime Minister Najib Razak's resignation as well as institutional reforms to prevent prime ministerial corruption.  The rally comes amid allegations in the Wall Street Journal that US$700 million (S$981 million) in state funds was deposited into Mr Najib's personal bank accounts and alleged mismanagement of debt-ridden state investor 1Malaysia Development Berhad (1MDB).  Bersih says recent events in Malaysia, including the removal of Abdul Gani Patail as Attorney-General and the removal of ministers who had spoken out on the 1MDB issue, have triggered the call for the rally.  The Malaysian police have declared the rally illegal due to the organisers' failure to furnish permissions from premises owners to use their locations as rallying points.  Police say those who join the rally can face legal action under the Peaceful Assembly Act.  Inspector-General of Police Khalid Abu Bakar has also warned all quarters not to incite violence.  Bersih chief Maria Chin Abdullah has insisted the rally will take place as planned and the group will work with the police to ensure that the event is peaceful.

   [5] 2015, What you need to know about Malaysia’s Bersih movement, The Straits Times, August 27 sourced at >

   More recent country information indicates that a further Bersih rally, Bersih 5.0, was held on 19 November 2016.  The online portal Malaysiakini estimated more than 40,000 protesters marched, and that overall the rally was considered to have been peaceful[6].  At least 15 activists and members of the political opposition were arrested, including Bersih chairwoman Maria Chin Abdullah.[7]

   [6]2016, The Diplomat, After Bersih 5: Fear and Repression Continue in Malaysia, 23 November.  Sourced at 2016, CNBC, Bersih 5 protest: Fresh clampdown on Malaysian activists won’t work, say critics, 20 November.  Sourced at >

   The Tribunal also considered the applicant’s submission that that many opposition leaders and supporters have been persecuted and mistreated. He also provided internet news articles in support of his claims, including and an article about the arrest of the opposition party Member of Parliament, Rafizi Ramli, for sedition and illegal assembly, and the arrest of youth activist, Adam Adli who was expelled from his college, and arrested for sedition, when he criticised the Malaysian government. The Tribunal has also taken account of a news report provided to the Tribunal by the applicant concerning the huge turnout for anti-government Bersih 5 rally and reporting on the arrest of at least ten prominent organisers of the rally.[8]

   [8] >

   Based on the relevant country information cited above the Tribunal finds that Bersih is seeking reform of the Malaysian electoral system and that Bersih is critical of the use by the government of laws such as the Peaceful Assembly Act (PAA), Sedition Act and the Criminal Code to stifle political dissent. The Tribunal finds that the relevant country information cited above indicates that police have the power to arrest people who participate in and/or are involved in organising political rallies, including the Bersih rallies, under the PAA and the Criminal Code, and that there have been arrests of people both for organising rallies and for failing to follow police directions (for example, breaching barricades) or involvement in scuffles at rallies. However, DFAT advises that the Bersih 4.0 rally was peaceful and the press report cited above indicates that the Bersih 3.0 rally was peaceful until attempts were made by some protesters to breach police barricades, resulting in confrontation between some protesters and police and ‘hundreds’ of arrests.  Press reports indicate that the Bersih 5.0 rally in November 2016 was also considered to have been generally peaceful, albeit with a small number of arrests, including of prominent organisers.  The Tribunal gives weight to DFAT’s assessment that protesters in Malaysia face a low risk of arrest when engaged in political rallies and those arrested have commonly been released on bail shortly following their arrest.  Based on the DFAT advice and the press reports cited above, the Tribunal finds that the vast majority of those involved in the Bersih rallies, particularly those who protested peacefully without confronting police or seeking to breach police barricades, do not face a real chance of being arrested, charged, fined or imprisoned due to their involvement with the Bersih movement.

5. On the basis of the country information above, the Tribunal does not accept the government is looking for people who joined in Bersih rallies. Further given the applicant’s evidence that he had no leadership or other prominent role in Bersih, and that he ran away had no contact with the authorities of any kind after the rally, the Tribunal does not accept the applicant faces a real chance of serious harm or a real risk of significant harm because he participated in a Bersih rally in Malaysia or Australia.

6. Further, the Tribunal finds the applicant faces no real risk of significant harm from the authorities or government supported because of an on-line post or his participation in a Bersih 3 rally. The Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being returned to Malaysia, there is a real risk the applicant will suffer significant harm on this basis.

7. The Tribunal considers that the applicant has demonstrated a low level of engagement with political issues through his participation in the rallies as accepted above, and on this basis, the Tribunal considers the applicant may express his political opinions in the future at a similar level. On the basis of the country information before it, the Tribunal does not accept he will attract adverse attention from the authorities for expression of his political opinions at that level in the future. The Tribunal finds the applicant does not face a real chance of serious harm now or in the foreseeable future or a real risk of significant harm on return to Malaysia as a result.

8. The Tribunal has considered the applicant’s written claim that the current ruling government will use the Sedition Act to persecute people who dare to oppose them and that while he has not experienced harm in the past for expression of his political opinion he is sure he will in the future. On the basis of the country information above, the Tribunal accepts that a small number of high-profile opposition leaders or organisers have faced official harassment through the application of Malaysian law, including through use of the Sedition Act. However, on the accepted profile of the applicant as a low level participant and supporter in the Bersih 3 rally and Bersih 5 rally in Australia, the Tribunal does not accept the applicant has a profile as an opposition leader or organiser such that he will attract the application of the Sedition Act against him. The Tribunal does not accept there is a real chance or a real risk that the applicant will be charged under this Act for expression of his political opinion on this basis. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm for this reason. 

   Opportunities to seek protection

9. In assessing the applicant’s claim to need protection because of his atheistic religious views and political opinion, the Tribunal has taken account of the accepted evidence of the applicant that he departed Malaysia twice to go to [Country 1] in 2014, after his claimed political activity and a number of years since he adopted his atheistic views and stopped participating in religious observance. The Tribunal notes that the applicant did not seek protection on these occasions. When asked about this, the applicant indicated that reached the view that Australia was the most appropriate place for him. While the Tribunal acknowledges that the applicant finds Australia suitable, the Tribunal would expect that had the applicant need of protection from serious or significant harm for the reasons claimed, he would have sought protection at an earlier time.    

10. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any reason pursuant to s.5J(1) of the Act now or in the foreseeable future.

11. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Malaysia, there is a real risk the applicant will suffer significant harm.

12. The applicant has claimed that he will not be protected by the authorities of Malaysia and that no-one will risk themself to support him because the current ruling party has authority over all government departments, media and police. The Tribunal has found above that the applicant does not have a well-founded fear of persecution or a real risk of significant harm. The Tribunal has therefore not addressed the issue of whether effective protection measures are available to the applicant in Malaysia, or whether the appliance could obtain from an authority of Malaysia, protection such that there would not be a real risk that the applicant will suffer significant harm. 

13. The applicant states in his Protection visa application that he cannot move to another part of Malaysia to seek safety because the whole of Malaysia is the same, and that he has considered other countries but finds Australia will be the most suitable place for him. The Tribunal has found above that the applicant does not have a real risk of significant harm in Malaysia. The Tribunal has not therefore addressed whether it would be reasonable for the applicant to relocate to another area of the country where there would not be a real risk that he will suffer significant harm.

    CONCLUSION

14. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

15. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

1. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   Amanda Paxton

   
   

   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.

   …