1512705 (Refugee)

[2016] AATA 3788

1512705 (Refugee) [2016] AATA 3788 (30 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512705

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rachel Westaway

DATE:30 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

STATEMENT MADE ON 30 APRIL 2016 AT 1:10AM

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 on 25 August 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Malaysia, applied for this protection visa [in] March 2015. The delegate refused to grant the visas on the basis that she was not convinced the applicants’ claims were credible. She stated that their claims were vague and lacked detail.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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.

   Country of Reference

9. The Tribunal accepts on the evidence before it, namely a copy of the applicants’ passports, that the applicants are nationals of Malaysia and it has assessed their claims against Malaysia as their country of Nationality for the purposes of the Convention and as their returning country for the purposes of s.36(2)(aa).

   Credibility

10. The Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’.

11. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.

12. However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, 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. In addition, The Tribunal is not 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.

13. If the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

14. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.

15. However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, 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. In addition, The Tribunal is not 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.

16. If the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this case is the credibility of the applicants’ claims. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

18. The applicants were invited to attend a hearing at the Administrative Appeals Tribunal on 23 February 2016 in order to provide oral evidence in the review of their protection visa application. The applicants did not respond to the hearing invitation and did not provide any submissions to support their claims. They did not attend the hearing.

19. The primary applicant is [name deleted] and his wife, the secondary [applicant]. They claim to be married.

20. The applicants claim to be born in Malaysia and are of Chinese Malay ethnicity. The primary applicant was born on [date] and the secondary applicant was born on [date].

21. They applicant’s left Malaysia in 2012. The primary applicant came to Australia on a subclass 976 ETA accompanied by his wife. The primary applicant was then included on his wife’s application for a [subclass] student visa. He was the secondary applicant on this visa. He and his wife returned to Malaysia [in] May 2014 and stayed until [June] 2014.

22. [In] March 2015 the primary applicant lodged a protection visa application, the subject of this review. His wife is the secondary applicant on this visa.

23. In the initial visa application, the primary applicant made the following claims:

    ·They left Malaysia because of their religion. The applicant’s claims to be Buddhists and they face harm from Muslims.

    ·Muslims will persuade me to join their organisation and they will stop me running my family business

    ·Muslims broke my family house without my permission; they locked me up in a community embassy. They were strict and did not permit contact with my family

    ·The local government also advised me to become Muslim instead of being a Buddhist to save my business and get my life back to normal

    ·We tried to relocate with our [children] but it was hard to support ourselves without running the family business.

    ·There are people watching everywhere and I cannot run my business and it is impossible to find a job.

    ·The authorities are mainly made up of Muslims and have advised me to join them and stay in [location].

    ·They claim to be unable to relocate as the issue is with the government politics and a highly corrupt regime and Malays are always preferred.

24. The applicants provided a one and half page typed submission to the Department with their application dated [March] 2015.

25. The submission contained the following information. They claim they are from Malaysia and are married and have [children] who still live in Malaysia with their grandparents. They stated that they were [wholesalers] but they had to leave Malaysia because of their religion. They claim that are in the minority as the majority of Malay people are Muslim. They state that Muslims constantly ask them to join their religion. They claims that since 2011 Muslims have broken into their house and forced them to go to regular study and repentance and have stopped their business. The applicants stated that they have sought help from the police and local government however they were told to convert to Islam. They have had to send their children to live with their parents. Their freedom is restricted and they have limited access to public social activities

26. The applicants provided a copy of a translated wedding certificate supporting their claims that they are married.

27. The applicants did not respond to the Department’s offer of an interview and did not provide any further information to the Department to assist in the assessment of their claims.

28. The applicants were invited to attend a hearing at the Administrative Appeals Tribunal on 23 February 2016 in order to provide oral evidence in the review of their protection visa application. Two sms reminders were sent to the mobile phone number provided by the applicants to the Tribunal. They did not reply to the letter and they did not attend the hearing. As such, the Tribunal will make a decision on the material before it, namely the claims made in the applicants’ protection visa application and their submission as listed above and independent country information.

    COUNTRY INFORMATION

29. The Tribunal has had regard to the DFAT Country Report for Malaysia dated 3 December 2014. It assesses that ethnic Chinese generally do not experience discrimination or violence on a day-to-day basis.

    ·However, it does state that they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.

    ·It confirms that the Malaysian Constitution forbids discrimination against citizens on the basis of gender, religion, and race, however it accords a “special position” for bumiputera, permitting affirmative action policies that favour ethnic Malays.

    ·Malaysian Chinese constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia.

    ·Malaysian Chinese make up a high percentage of the professional and educated class and dominate business and commerce sectors. The majority of ethnic Chinese are concentrated in the west coast states of Peninsula Malaysia with significant percentages (30 per cent and above) living in the large urban centres, including Kuala Lumpur, Penang, Johor, Perak and Selangor.

    ·Malaysian Chinese freely participate in political life and are represented by ministers in the current cabinet and in opposition parties. The largest Chinese party was traditionally the Malaysian Chinese Association (MCA), a component of the Barisan Nasional (BN) coalition. The MCA won seven seats at the 2013 election, down from 15 in 2008. An increasing number of Chinese support the Democratic Action Party (DAP), one of three key opposition parties of the Pakatan Rakyat (People’s Alliance) coalition. The DAP won 38 seats at the 2013 election, a significant increase from the 28 seats in 2008. There are comparatively fewer ethnic Chinese in the Malaysian civil service. The exclusive use of the Malay language may be a restriction in this regard.

    ·Malaysian Chinese generally have no problems in accessing public primary or high school education. However, despite the removal of government-sanctioned ethnic quotas for public universities in 2002, admission decisions remain heavily biased towards ethnic Malays. Malaysia’s matriculation programs favour bumiputera students applying for entrance to state universities. Some ethnic Chinese are not awarded a place in public universities despite having perfect high school matriculation scores. Since the formation of private universities in Malaysia, ethnic Chinese have consistently formed the bulk of the students within Malaysia’s non-government universities.

    ·The applicants states that the Malaysian police are corrupt and will not help them. DFAT reports are contrary to these claims. The current report states “Overall, the Royal Malaysian Police (RMP) is considered by credible local sources to be an effective force with reasonable capacity levels. 

    ·Should the applicants be returned to Malaysia, the Tribunal has had regard to the country information from DFAT in regards to failed asylum seekers. “Malaysian officials generally pay little regard to failed asylum seekers upon their return, although it is possible that some individuals might be questioned upon entry or have their entry delayed. Many thousands of Malaysians enter and leave the country every day. Malaysians that over-stayed their work or tourist visas in other countries are regularly returned to Malaysia with no attention paid to them by authorities. Even high profile individuals, such as opposition leader Anwar Ibrahim, move in and out of Malaysia without interference”.

30. USCIRF in April 2015 reported of Malaysia: The commingling of politics, religion, and ethnicity has a negative effect on religious freedom in Malaysia. The Malaysian constitution protects the right to freedom of religion, but also establishes Islam as the religion of the Federation and defines all ethnic Malays as Muslims. The majority of the population, approximately 61 percent, are Muslim. Twenty percent practice Buddhism, nine percent Christianity, six percent Hinduism, and the remainder follow minority religious faiths, such as Confucianism, Taoism, Shi’ism, and the Ahmadi and Baha’i faiths. Civil courts routinely cede jurisdiction to Shari’ah courts over family or conversion cases involving Muslims. Muslims are allowed to proselytize to non-Muslims, but not vice versa. [1]

    [1] United States Commission on International Religious Freedom 2015, ‘Malaysia’, pp.170-175 at p.172, in Annual Report 2015, 30 April < Accessed 1 May 2015 <CISEC96CF1691>

31. The recent annual reports on religious freedom in Malaysia by the United States (US) Department of State (for the years 2014 and 2013) and by the US Commission on International Religious Freedom (USCIRF) (for the years February 2014-January 2015[2] and for the year 2013[3]) report recent forced religious conversion to Islam of (where age is identified) minors[4]. The recent annual reports on human rights in Malaysia by Amnesty International (for ‘2015/16’, ‘2014/15’ and for the year 2013), Human Rights Watch (for the years 2015, 2014 and 2013) and Freedom House (for the years 2014 and 2013) do not mention forced religious conversion to Islam.[5]

    [2] ‘The 2015 Annual Report covers the period from January 31, 2014 through January 31, 2015, although in some cases significant events that occurred after the reporting period are mentioned.’: United States Commission on International Religious Freedom 2015, Annual Report 2015, 30 April, p.5 < Accessed 20 April 2016. 

    [3] ‘In 2010, […] the period covered in each IRF Report was shifted […] to a calendar-year (January 1 to December 31) cycle’: United States Commission on International Religious Freedom 2014, Annual Report 2014, [30 April,] p.16 < Accessed 20 April 2016. 

    [4] US Department of State 2015, 2014 Report on International Religious Freedom - Malaysia, 14 October, section II pp.[2] & [3], on UNHCR Refworld website < <OGD95BE926052>; one is referred to this report for ‘Freedom of Religion’ information by US Department of State 2015, Country Reports on Human Rights Practices for 2014 - Malaysia, 25 June, p.15 section 2(c) < Accessed 1 July 2015 <OG2B06FAF115>. US Department of State 2014, Malaysia 2013 International Religious Freedom Report, 28 July, section II pp. [4, 5,] 6 & 8 on UNHCR Refworld website < <OG54B5446107>. United States Commission on International Religious Freedom 2015, ‘Malaysia’, pp.170-175 at p.173, in Annual Report 2015, 30 April < Accessed 1 May 2015 <CISEC96CF1691>; full Annual Report 2015 is at < Accessed 20 April 2016. United States Commission on International Religious Freedom 2014, ‘Malaysia’, pp.136-139 at p.137 in Annual Report 2014, 1 April < <CIS2F827D92135>. 

    [5] Amnesty International 2016, ‘Amnesty International Report 2015/16 - Malaysia’, 23 February < Accessed 23 February 2016 <NGE43874C106>; which is Amnesty International 2016, ‘Malaysia’, pp.240-242, in Amnesty International Report 2015/16. The State of the World’s Human Rights (London: 23 February) < Accessed 23 February 2016 <NGE43874C94>. Amnesty International 2015, ‘Amnesty International Report 2014/15 – Malaysia’, 25 February, on UNHCR Refworld website < <NG5A1E6BC353>; Amnesty International 2013, ‘Amnesty International Annual Report 2013-– Malaysia’, 23 May, on UNHCR Refworld website < <NG16A121D148>. Human Rights Watch 2016, ‘Malaysia’, pp.388-394, in World Report 2016. Events of 2015 (New York: 27 January) 

1. The Bureau of Democracy, Human Rights and Labor International Religious Freedom Report for 2014[6] states that Malaysia recognizes the right to profess and practice most religions but also places limits on this right with the stated goal of promoting social harmony and protecting Islam as the official religion of the country.

   [6] >

   In summary, the applicant’s claims are not supported by the independent country research. Malaysia does not support discrimination on the basis of ethnicity or religion. Buddhists make up a significant percentage of the Malaysian population (20%) after Muslims (61%) and hold positions of power within business and government. Examples of forced conversion to Islam of adults is not supported by the country research however the Tribunal does note there is mention of conversion with minors. The Tribunal does not accept that forced conversion is as blatant as the applicants suggest or that that applicant would be discriminated as they have claimed. There are no laws or constitutional provisions that directly discriminate against ethnic Chinese in Malaysia.

   FINDINGS AND REASONS

2. Based on the documentation on the Department file, the Tribunal accepts that the applicants are Malaysian citizens and that they are married and that the secondary applicant is the spouse of the primary applicant.

3. The Tribunal considers that the applicants’ evidence and claims on the application form as to the reasons why they feared harm in Malaysia were extremely brief. They supplied no supporting detail about their claims that they are Chinese Malays and Buddhists or how they have been harmed or discriminated against. The applicants did not attend a Department interview at which time they would have had the opportunity to elaborate on their very brief written claims. The Tribunal considers that had they genuinely come to Australia to seek protection due to harm faced in Malaysia that they would have ensured they maintained contact with the Department and taken up the offer to attend an interview. The Tribunal considers it to be reasonable to expect the applicants, who had provided extremely brief written claims, would then attend the Tribunal hearing at which time they could have presented their claims at the review stage. The Tribunal considers their failure to do so casts serious doubts on the credibility of their claims to have fled Malaysia because they had suffered serious harm based on their religion and ethnicity.

4. The applicants’ claims are not supported by independent country research. The Tribunal has also taken into consideration the applicants’ migration history and limited engagement with the Department and the Tribunal. The applicant’s claims were vague and lacked detailed and the applicants did not take up the opportunity to provide any further information throughout the process of the assessment of their application. The Tribunal has also considered that the applicants returned to Malaysia in May 2013 to June 2013 and provided no evidence to support how they avoided harm during this period or indeed why they returned if they feared for their safety. In taking all of these issues into account the Tribunal finds that the applicants’ claims are not genuine or credible.

5. Given that the Tribunal finds the applicants claims are not genuine or credible, it does not accept:

   ·that the applicants left Malaysia because of their religion or ethnicity and that they faced harm from Muslims.

   ·that Muslims persuaded them to join their organisation, convert and stopped them running their family business

   ·that Muslims broke into their family house without permission or that they locked the primary applicant up in a community embassy and were strict and did not permit contact with his family

   ·that the local government also advised the primary applicant to become Muslim instead of being a Buddhist to save his business and get his life back to normal

   ·that the applicants relocated with [children] and faced hardship without their family business

   ·that there are people watching them everywhere in Malaysia and they cannot run their business and it is impossible to find a job.

   ·that authorities are mainly made up of Muslims and they have advised them to join them and stay in [location].

   ·that they are unable to relocate as the issue is with the government politics and a highly corrupt regime and Malays are always preferred

   ·that since 2011 Muslims have broken into their house and forced them to go to regular study and repentance and have stopped their business.

   ·their freedom is restricted and they have limited access to public social activities

6. Considering the country information and the applicants’ individual circumstances on a cumulative basis, I find there is not a real chance that in the reasonably foreseeable future the primary applicant or the secondary applicant would be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion).  Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.

7. Considering the country information and the applicants’ individual circumstances on a cumulative basis I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the primary or the secondary applicant being removed from Australia to Malaysia that there is a real risk that they will suffer significant harm.

   CONCLUDING PARAGRAPHS

8. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Rachel Westaway
   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.

   …