1512887 (Refugee)

[2016] AATA 4045

1512887 (Refugee) [2016] AATA 4045 (4 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512887

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Stuart Webb

DATE:4 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 04 July 2016 at 1:23pm

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] September 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] June 2015. The delegate refused to grant the visa on the basis that his claims were vague and limited, given the insufficient evidence as provided in his application. The applicant appeared before the Tribunal on 24 June 2016 to give evidence regarding his claims.

   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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant made the following claims with his application. He fled his country because he wanted to protect himself from a group of people who had harmed and threatened to kill him. He was in business with three of his friends. One of his friends borrowed a large amount of money from moneylenders. All the partners stood as guarantors to loan. Two of the partners went missing and took a large sum of money. The business went slow and the moneylenders started demanding their money. The money could not be repaid and the moneylenders started acting rough and aggressive. A fight occurred between the moneylenders and the applicant and his partner. His partner was injured as was one of the moneylenders, who subsequently died. Now the applicant is wanted by the police as a murder suspect. The applicant is also afraid that the debt collector people are searching for him and there is a huge possibility that they will kill the applicant since one of their people was dead. A few days after that incident the applicant’s injured partner went missing. He has been beaten, harassed, he will face continuous harassment attack from the moneylenders. He received death threats. The business premises were attacked and damaged. He does not believe the moneylenders would stop looking for him. He will be arrested by the police for investigation. The police will torture and harm him while being investigated. The applicant stated that he may be released on bail after investigation since he was not involved directly with the death of the person, but he did not know what charges the police will bring. The whole situation is very critical and complicated.

10. [In] February 2014 the applicant was issued a [temporary] visa for Australia .He left Malaysia [in] April 2014 and arrived in Australia [two days later]. His visa expired [in] July 2014. He lodged his protection visa application [in] June 2015.

    Findings and reasons

    Country of nationality

11. The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.

    Third country protection

12. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility

13. 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.

14. 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.

15. 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.

16. 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).

17. 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.)

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

19. The applicant appeared before the Tribunal on 24 June 2016. The Tribunal asked the applicant a number of questions about his claims. The applicant answered the questions about the claims in a vague, inconsistent, with omissions and in a very limited manner. The Tribunal asked at the hearing if there was any reason why the applicant’s evidence was so vague and inconsistent with what he had previously written. The applicant stated it happened some time ago. The Tribunal noted that the period in questions was from 2009 to 2014, when the applicant came to Australia, so was not that long ago. The applicant provided no other reason for his vague and inconsistent evidence. No issue with interpreting was raised with the Tribunal, the applicant stating he understood the interpreter at the hearing. The Tribunal noted at the hearing that the applicant’s credibility was a significant concern to the Tribunal.

20. The evidence of the applicant was significantly inconsistent with the information as provided in the statement with his application. There were significant differences with the claim regarding the fight between the money lenders and the applicant and his business partners. The applicant could not remember when the fight took place. The applicant stated it was a while ago, the end of 2014. The Tribunal noted that that date could not be accurate, as the applicant was in Australia at the end of 2014. The Tribunal noted that it was not that long ago when this was supposed to have occurred. The applicant stated that that is when he remembered it happening, but that it did occur. The Tribunal expressed its concern with the evidence of the applicant regarding when the fight occurred.

21. The applicant stated at the hearing that he had been the person who had hurt the money lender in the fight, leading to his death. The Tribunal noted that this was not what was stated in his application. The Tribunal noted that the applicant discussed the fight in his application and stated that he had ‘not done any serious crime as I was in the scene only[1]’ and ‘I may be released on bail after an investigation since I did not involve directly with the death of the person’[2]. The Tribunal noted that the applicant had stated something completely different previously to his evidence at the hearing. The applicant stated that he was concerned it was a criminal matter and so did not want to mention it, so that he would not get in trouble in Australia. The Tribunal noted that the applicant had made clear in his statement that he feared the police would arrest him as a murder suspect[3]. The Tribunal noted that the applicant’s claim about being involved in this fight was already there. His new claim to have been the person who hurt the other man, leading to his death, was inconsistent with his previous evidence.  The applicant stated he could not explain it, it was maybe a crime.

    [1] Form 866C Q46, DIBP Folio 19

    [2] Form 866C Q48, DIBP Folio 18

    [3] Form 866C Q47, DIBP Folio 19

22. The Tribunal asked the applicant if he had been approached by the police. The applicant stated that the police had met the applicant outside his business. The Tribunal noted that the police had not arrested him at this stage, despite the claim of the violence. The applicant then made a new claim at the hearing that he had been arrested and held by the police for two weeks, before being released. The Tribunal noted that the applicant had made no mention of being arrested and held by the police in his application, which was a significant omission. The Tribunal noted that if the applicant had been held by the police it would be reasonable that the applicant would mention that in his statement. In fact the applicant had stated that ‘I still wanted by the police as a murder suspect and for sure I will be arrested’[4]. The applicant stated it had only been an investigation at that stage. The applicant confirmed he had been in contact with his family in Malaysia. The Tribunal asked if the applicant was aware of any criminal charges that had been made against him. The applicant said he wasn’t. The applicant stated he feared that the money lender may exaggerate a claim against him. The Tribunal asked how someone could exaggerate a murder claim.

    [4] Form 866C Q47, DIBP Folio 19

23. The Tribunal expressed its serious concern that the applicant had contrived this aspect of his claims. The applicant’s evidence regarding the fight that supposedly took place between him and his business partners and the money lenders was vague, inconsistent and limited. The applicant made significant changes to the claims that he had previously made, and his explanation for the changes are very limited. The applicant could not remember when the fight took place. He gave a date when he was in Australia. He said could not remember because it was a long time ago, when in fact on his dates it was less than two years ago. He changed the story about his involvement in the fight. He changed his story with regard to his involvement with the police. His further explanation that he feared giving information because he might get in trouble in Australia does not stand up when considering the information he did provide. The Tribunal considers that the applicant has concocted this claim that there was a fight with money lenders where one of the money lenders was killed. The Tribunal considers that the omissions, inconsistencies and vagueness of the applicant’s evidence demonstrates that this aspect of the applicant’s claims are contrived, that such a fight did not occur, and no person was hurt, either a friend or a moneylender was hurt. The Tribunal does not accept that any money lender was harmed or that the police have any interest in the applicant arising out of any fight. The Tribunal does not accept that the applicant will face any charges or that the police or authorities have any interest in the applicant. The Tribunal does not accept that this incident occurred.

24. The Tribunal also has significant concerns with other aspects of the applicant’s claims. The Tribunal discussed the basic premise of the applicant’s claims, that he was the guarantor of money being borrowed by a business partner. The applicant stated [amount] Malaysian Ringgit were borrowed by a friend, who put up land as collateral. The applicant stated that the loan was made sometime in 2009 or 2010. The applicant stated at the hearing that the business was a [product] business. The Tribunal asked if the applicant had any documentary evidence of his being involved in the loan agreement. The applicant stated he had a paper at home in Malaysia. The applicant confirmed he was in contact with his family in Malaysia. The Tribunal noted that it was difficult for asylum seekers to provide documents to support their claims when they had to flee fearing harm. The Tribunal noted decision makers cannot rely on the absence of documents give the issues that asylum seekers face. The Tribunal asked if the applicant had asked his family to locate the loan agreement for him. The applicant stated he had too many papers so did not ask them to find it. The Tribunal stated it was strange that the applicant did not seek this document over the extended period of his time in Australia, given his family’s access to such papers and the relevance of the document.

25. The Tribunal asked the applicant about the business. The applicant stated it commenced in 2009 or 2010. The applicant stated at the hearing that the business ‘never started’ it had failed at the outset, that nobody wanted to buy the [products]. The Tribunal asked when it had closed. The applicant stated middle of 2012. The Tribunal asked how the business survived until the middle of 212 if nobody bought the [products]. The applicant was very vague in his response as to how it remained open.

26. The Tribunal asked how the applicant’s friend managed to service the loan that had been borrowed. The applicant stated that it was difficult to return the money, he could not get it to repay it, the interest was too high. The Tribunal questioned how they were paying the interest if the business was not operating. The applicant did not answer this question. The Tribunal noted it was very strange how the applicant, who had stated he had previously been employed in part-time factory work, was then made a guarantor to a loan of this size. The applicant stated he had agreed to a friend’s request. The Tribunal asked how many business partners he had. At the hearing the applicant stated 2.

27. The Tribunal asked the applicant what had happened to the friend who had borrowed the money. The applicant stated his friend had gone back to his native village; he had not had any problems as far as the applicant knew. Later the applicant stated his friend may have gone overseas. The Tribunal stated it was strange that the applicant was claiming to have significant difficulties, as the guarantor, but the person who borrowed the money was not. The applicant stated that he was told by friends that the money lender was looking for him. The Tribunal asked why he was told by friends and not his family. The applicant stated his family did not want to get involved. The Tribunal stated it was strange that the money lenders did not seek him through his family if he was wanted by them.

28. The Tribunal identified a number of inconsistencies with the evidence of the applicant at the hearing to that as provided by the applicant in his application. The Tribunal noted that the applicant had altered the number of business partners, that he had previously stated that he had been ‘in business with three of my friends’[5]. The applicant initially stated that he meant that it was two friends and him. The applicant later in the hearing stated that it was three business partners. The Tribunal stated that the applicant’s inconsistency in his evidence was concerning.

    [5] Form 866C Q43, DIBP Folio 22

29. The Tribunal noted that the applicant’s evidence at the hearing that the business failed from the beginning was inconsistent with the information included in the application. The Tribunal noted that the applicant in his application had stated ‘our business was running smoothly until one day two of my partners were gone missing and they took sum large of cash[6]’ (sic).  The Tribunal identified three concerns with the evidence of the applicant in this regard. The Tribunal noted that the evidence that the business was running smoothly was inconstant with the evidence that the business had failed at the outset. The Tribunal noted that the applicant had made no mention at the Tribunal hearing that two partners had taken money from the business, despite having discussed the business and its failing at the outset of the hearing. The Tribunal noted that this failure to raise this aspect of the applicant’s claims at the hearing when discussing the operation of the business was significantly concerning. The Tribunal also noted that the applicant’s evidence regarding the person who borrowed the money was that he had gone back to his village, not gone missing. The applicant stated that the business had failed and they wanted the money after that. They were not seeking the person who borrowed the money but the applicant as the guarantor. The Tribunal stated that it was a very strange that they money lenders would not seek the borrower of the money. The applicant stated that that was his explanation. The Tribunal expressed its serious concern with this primary claim of the applicant that he was the guarantor to a loan from money lenders.

    [6] Form 866C Q43, DIBP Folio 21-22

1. The Tribunal took the applicant through a number of other inconsistencies in his evidence. The applicant stated he had moved around in Malaysia to avoid the moneylenders. The Tribunal noted that the applicant had confirmed that he had one address only in Malaysia, as detailed in his application[7].  The applicant stated he had too many places. The Tribunal expressed its concern that he had not listed them.

   [7] 866C Q35, DIBP Folio 25

2. The Tribunal noted that the applicant’s evidence regarding his employment was very vague. His employment history was listed ‘businessman[8]’ with no other details. The applicant stated he had worked in factory and other part time jobs. The Tribunal noted it was strange that he was then a guarantor for a large loan with such a limited work history.

   [8] 866C Q39, DIBP Folio 23

3. The Tribunal noted that the applicant had stated he had never been out of Malaysia previously.[9] The applicant had also stated he had never had a passport prior to his current passport.[10] The Tribunal noted that the applicant’s current passport, which he provided at the Tribunal hearing, stated he had a previous passport which expired in [2012]. The applicant acknowledged this and, on being questioned why he had a passport previously, stated that he had travelled to [two other countries] previously. The Tribunal asked why he had not disclosed this in his application, and had made false statements. The applicant stated he had just made the application short. The Tribunal noted that his claims were not short, and that these gaps caused it to have credibility issues with the evidence of the applicant.

   [9] 866C Q34, DIBP Folio 25

   [10] 866C Q31, DIBP Folio 26

4. The Tribunal noted that the applicant’s current passport was issued [in] 2014. The applicant confirmed he got the [temporary] visa for Australia [in] February 2014 and left Malaysia on [a date in] April 2014. He arrived in Australia [the next day]. His visa expired [in] July 2014 and he lodged his protection visa application [in] June 2015.

5. The Tribunal identified a number of concerns with this aspect of the applicant’s evidence. The Tribunal noted that that applicant had been issued with a passport in [2014]. The Tribunal noted that if the applicant was a person of interest to the authorities, they would be unlikely to issue such a document. The applicant stated that he had not been charged and he was not remanded. The Tribunal noted that if the applicant was involved in such a serious matter as he claimed it was strange that such a document, allowing him to leave Malaysia, would be issued. The Tribunal considers that the issuing of the passport to the applicant in [2014] without any issues being raised demonstrates that the applicant is not a person of interest to the authorities.

6. The Tribunal noted the delay between the applicant getting his visa for Australia and his departure, almost two months. The applicant stated he had to arrange things, he had to tidy up his affairs. The Tribunal stated that this was a very odd thing to do if he feared harm from money lenders. The Tribunal stated it may infer that the applicant did not fear harm in Malaysia given he was in no hurry to leave when he had the opportunity.

7. The Tribunal noted that the applicant significantly delayed his application for protection in Australia, having arrived in Australia [in] April 2014 and lodged in June 2015, after almost a year of being unlawful. The Tribunal noted that the court had stated that the Tribunal could take such delay into account. The Tribunal asked why the applicant had delayed making a protection claim when he had come to Australia, as he had stated, for safety. The applicant stated that he was feeling afraid he would be sent home. It took him a long time to find help, he had not resources and did not know what to do. The Tribunal noted that the applicant could have approached the Department of Immigration for advice regarding his circumstances and fears. The Tribunal expressed its concern with the delay in lodging the claim. The applicant stated he wanted permission to stay for a while, he would go back when it was less hot for him.

8. The Tribunal has considered the information as detailed above. The Tribunal notes that the evidence of the applicant has been significantly inconsistent between his application and the evidence he provided at the hearing, with new claims being made, changes to previous explanations and a significant lack of detail regarding relevant matters. The applicant’s evidence regarding the business and its operation, the loan and who was involved, the evident contrivance regarding a violent fight, the hiding of information about his residence in Malaysia, previous passport and travel, and vagueness about his past employment. That the money lenders are supposedly seeking the applicant when they ignore the person who borrowed the money is no explained, the applicant stating that to his knowledge his friend returned to his own village. His family have not been approached by the claimed money lenders, which the Tribunal explained is unusual if the applicant is wanted by such people. The applicant’s explanation that he can’t remember matters because it was so long ago is not correct, it is not a claim that is very old, at most a problem since 2012 on the applicant’s time frame, 4 years ago. The Tribunal does not consider that the age of the matter is an explanation for the vague, inconsistent and false information as provided by the applicant. Nor, as determined above, does the Tribunal accept that a fear of getting in trouble in Australia is an explanation for the changed claims regarding the violent incident, which the Tribunal has not accepted occurred.

9. Given the significant concerns raised by the Tribunal, the Tribunal does not accept that the applicant has had any dealings with money lenders, including as a guarantor for a loan. The Tribunal does not accept that the applicant was involved in [a product] business with friends or business partners. The Tribunal does not accept that people borrowed money for this business from money lenders. The Tribunal does not accept that there were any dealings with any money lenders. The Tribunal does not accept that the applicant was ever harmed by money lenders. The Tribunal does not accept that money lenders are after the applicant and will seek to harm him in the future.  The Tribunal does not accept that the applicant was involved in a fight with money lenders. The Tribunal does not accept that the police are interested in the applicant arising from any fight with money lenders. The Tribunal finds that the applicant has concocted this claim that he was the guarantor for a loan of money lenders in order to seek to remain in Australia, and that it is not a genuine story.

10. Accordingly, the Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason on return to Malaysia.

11. 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).

12. 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).

13. 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

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

    Stuart Webb
    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.

    …