1513348 (Refugee)

[2016] AATA 4981

1513348 (Refugee) [2016] AATA 4981 (13 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513348

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Stuart Webb

DATE:13 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 13 December 2016 at 11:46am

CATCHWORDS
REFUGEE – protection visa –Malaysia – ethnicity – Chinese Buddhist – minority group – lesbian –
victim of police harassment due to sexuality – Penal code infrequently applied to homosexuals – credibility issues – vague and exaggerated claims – delay in applying for a protection visa – decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
Appellant S395/2002 v MIMIA [2003] HCA 71
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
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 on 27 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 on 6 January 2015.

3. The application for protection as lodged with the Department included a second application, [another individual] as a dependent. The delegate made a finding in relation to the second applicant, refusing her application. The second applicant was not included in the review application at the AAT so the Tribunal does not have to consider her claims for protection.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The applicant made the following claims with her application. She is a Chinese Malay. She is a lesbian who has been discriminated, abused and attacked, and harassed by police. She fears that she and he partner will be forced to live apart in Malaysia, she fears for their lives. It was stated that the penalty for homosexuality is up to three years jail, a fine and 6 lashes. She faces significant discrimination in job opportunities and constant harassment. She believes the authorities and police would mistreat her. She arrived in Australia on 3 May 2009 on a [temporary] visa and became unlawful on 4 August 2009. She did not leave Australia in that time. She lodged her protection visa application on 5 January 2015.

11. The Tribunal notes the second applicant, the applicant’s claimed partner, arrived in Australia on a [temporary] visa on 31 January 2014 and became unlawful on 1 May 2014. The applicant stated she had separated from her partner and she was not a party to the application.

    Findings and reasons

    Country of nationality

12. The applicant claims to be a citizen of Malaysia and provided a copy of her passport to the Department with her 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

13. There is no evidence before the Tribunal 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

14. 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.

15. 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.

16. 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.

17. 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).

18. 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.)

19. 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).

20. The Tribunal has concerns regarding the applicant’s concerns as a lesbian in Malaysia. The applicant claimed that she became a lesbian after living [overseas] for about 6 years between 2000 and 2006. She came back to Malaysia after that and entered into a relationship. The applicant stated that she had ridicule behind her back, that people at her work said bad things about her at her work so she decided to leave. She stated it was difficult to get work as a lesbian. The applicant also stated that a friend had a friend who was a policeman, who said that like [Ms A] she could be arrested. The applicant also stated that there were problems with the police more generally, if she was at a pub with a girlfriend the police would come and demand money. The Tribunal asked how the police would know she was gay. The applicant stated that her girlfriend had been a tomboy, so was identifiable in the pubs. The applicant stated she had to pay 50 ringgit on one occasion.

21. The Tribunal questioned the harassment that the applicant had claimed. The applicant could provide limited information about her difficulties at work, just that she tired of fingers being pointed at her, so she decided to leave. Her evidence about police harassment was also limited, with the vague evidence of being identifiable in the pub because of who she associated with. She herself was not identifiable from her appearance, and the Tribunal questioned her claim that she was identified by the police to pay a bribe as she claimed. The applicant then stated that every Muslim takes money. The Tribunal stated that it believed that the applicant was exaggerating her experience in Malaysia.  Given the vague, limited and exaggerated comments of the applicant in this regard, the Tribunal does not accept that the applicant has faced corrupt activities, including police corruption, in Malaysia because of her sexuality.

22. The Tribunal noted that the applicant had been in Australia for an extended period, from 2009, and had not applied for protection in that time. The Tribunal noted that it may consider that the applicant did not fear harm in Malaysia, given the significant delay in lodging a protection visa. The applicant claimed that she did not know about protection visas. The Tribunal stated it has significant concerns with this claim, given the prominence that refugee and asylum seeker issues have had in the last 15 years in Australia, including in ethnic communities like the Malaysian community. The Tribunal does not accept that the applicant did not know of the protection visa system, and considers that the applicant did not apply for a protection visa as she did not have genuine concerns regarding her return to Malaysia.

23. At the hearing the applicant in fact stated she was not happy to go back ‘like this’. The applicant explained she had a bad fall and broke her leg in 2012. Her leg still gave her difficulty, she was told not to run. The Tribunal explained that this did not provide a reason for protection.

    Homosexuality in Malaysia

24. The Tribunal has considered the claim that the applicant would be harmed in Malaysia because of her sexual identity. The applicant claimed that homosexuality was illegal in Malaysia, a colonial era criminal ban applying, however the Tribunal noted that there were no Malaysian laws that state that homosexuality is illegal. The Tribunal did identify that different laws apply to different parts of the community, that Islamic laws policed by religious police predominantly impact Muslims in Malaysia. The Tribunal considers that the applicant was of ethnic Chinese Buddhist background and not a Muslim, so country information regarding religious police (also known as the morality police) enforcing Sharia law was not that relevant to her circumstances.

25. The Tribunal discussed country information with the applicant. The Tribunal noted that section 377 of the Penal Code provided Malaysian laws (as opposed to religious law) with respect to sexual activity. The provisions of this section of the Penal Code targets male activity. 377A is relevant to men, as this discusses ‘the insertion of the penis into the mouth or anus of another person to be carnal intercourse against the order of nature’. 377B says that voluntarily committing carnal intercourse against the order of nature faced up to 20 years jail. 377D of the Penal Code states that ‘Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years’ .

26. However, these provisions of section 377 are not enforced by the authorities, there being 7 recorded instances in the past 70 years and 4 of these specifically against Anwar Ibrahim[1]. It has been described that the use of these provisions are highly political in nature[2] and not used in the ordinary course of matters against individuals. They have not been used against any women. No other provisions of the Penal Code refer to homosexuality, thus being homosexual in itself is not illegal in Malaysia. The Tribunal considers that while the laws do exist, they are not used to prosecute men like the applicant who identify and practice as lesbians in Malaysia, and would not be used against the applicant herself. The Tribunal considers the comment as made to the applicant about [Ms A] is not a real threat. 

    [1] Brownell C 2009, ‘Rethinking Malaysia’s sodomy laws’, The Nut Graph, 24 July <CISE1310071713 Also note  References in DIBP Decision, pp 13-15, AAT Folios 2-3

    [2] DFAT Country Report, Malaysia, December 2014, 3.67; US Department of State 2015, Country Reports on Human Rights Practices 2014 – Malaysia, 25 June, Discrimination, Societal Abuses, and Trafficking in Persons’ subsection ‘Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity ’

27. The Tribunal referred to the DFAT Country Information Report Malaysia from July 2016 at the hearing. This made the following relevant comments on homosexuals in Malaysia.

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

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

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

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

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

28. A body of evidence exists that shows LGBTI individuals experience varying degrees of tolerance. A May 2012 report on the Gay Star News website refers to the comments of Lee Kam Wye, a retired secondary school teacher in Malaysia, who said that ‘LGBT may appear to be spreading not because more people are being recruited into LGBT lifestyle but because this community is braver and more open now’[3]. A February 2012 Hindustan Times article, sourced from Agence France-Presse, indicates that ‘The gay and lesbian community in socially conservative Malaysia has slowly gained a higher profile in recent years, and transsexuals live openly in cities’. The article also indicates, however that ‘many complain they continue to live in fear of persecution, especially amid a perceived growing Islamisation of the country’[4]. A January 2011 Inter Press Service article refers to the comments of Michael Lam, a gay accountant in Malaysia, who, when discussing the reaction to Azman Ismail, a Muslim, going on YouTube.com and confessing that he was a gay, said that ‘What’s shocking to many Malaysians is not the fact that there are LGBT persons or LGBT behaviour, which is common but never in your face’, it was ‘the open admission of being gay and the defence of homosexuality by a Malay Muslim’. It was ‘the openness that is inviting adverse reaction’. Lam also said that ‘LGBT is generally tolerated, but as long as it is not flaunted.’[5]

    [3]Malaysia training helpers to curb homosexuals’ 2012, Gay Star News, 23 March < <CX288268 

    [4] Malaysia transsexuals targeted in attacks: report’ 2012, Hindustan Times, 16 February, source: Agence France-Presse < <CX0D38E8E20065>

    [5] Kuppusamy B 2011, ‘Malaysia: Muslim gay faces govt wrath’, Inter Press Service (IPS), 15 January < <CX256528>

1. Information about the applicant’s home town and close regional area of [District 1] demonstrated that there is gay community in the area. Gay Website Utopia provides the following summary of Malaysia

   Malaysia will no doubt surprise you. This multi-cultural nation, largely populated by moderate Muslims and fiercely intolerant of being bullied by western powers, is filled with charm, nature, culture, and warm hospitality. Remarkably, it also has a thriving gay scene (perhaps Southeast Asia’s most exciting) which, while still mostly underground, is basically tolerated by the live-and-let-live attitude of its people.

   Yes, the country was once lead by a cranky homophobe, Mahathir Mohamad, who infamously ousted his one-time protégé, Anwar Ibrahim, on trumped-up sodomy charges, despicably wielding antique colonial buggery laws to do so.

   Times change. Homohaters and dictators are relegated to the dust bin these days. Anwar’s groundless conviction was overturned by Malaysia’s high court in 2004. Mahatir’s daughter, Marina, works tirelessly behind the scenes to support AIDS/HIV education, including championing efforts by Malaysian GLBT health worker heroes.

   Malaysia is thriving under the fresh air of tolerance and democracy. Straight-owned venues openly cultivate custom from the gay community, while homosexual entrepreneurs launch trendy businesses and mini-utopias of their own.

   Conversations with locals are delightfully candid. Educated and pragmatic, the younger generation takes a practical point of view towards the special challenges of their rainbow society. As one highly-placed official told us: as a gay Muslim he just takes the hurdles of life one day at a time

   and identifies locations in ‘Penang’ for gay people to meet[6].

   [6]

2. The Tribunal has considered the applicant’s personal experiences in Malaysia. As detailed, The applicant has not been physically harmed or harassed in Malaysia. She may have had comments made to her at work, but the Tribunal does not accept that these comments were such that they constitute serious or significant harm, as defined in the Migration Act. Further, the comment about the friend of her friend, who was a policeman, making a comment about [Ms A], while not pleasant, is not police harassment because of her sexual identity. The Tribunal considers this one off comment arose in the context of a social gathering, and not as a result of any official police business. The Tribunal does not accept that the applicant has faced extortion through police corruption, the evidence of the applicant regarding this being vague, limited and exaggerated.

3. The Tribunal has considered the applicant’s evidence about her work. The Tribunal considers that it is plausible, given the information, that some people may make negative comments to the applicant about her sexual identity. However the Tribunal does not consider that this is so pervasive that the applicant will be unable to find work in Malaysia.  The Tribunal notes that the applicant worked in Malaysia from 2006 to 2009 before coming to Australia. The Tribunal does not accept that the applicant will face discrimination because of her sexual identity such that she will be unable to be employed.

4. The Tribunal noted the DFAT information about homosexuality in Malaysia, and the Tribunal noted she was not a Muslim. The applicant stated that there was discrimination, but she was not able to provide information about this. The Tribunal noted that the applicant could reside in her home town, as she has previously, without being harmed.

5. With respect to her freedom to express her sexual nature, the applicant has had the freedom to work and live and find people of a similar nature in her home area. The Tribunal does not accept that she will be required to be discreet in Malaysia. This does not appear to be the applicant’s own actions while living in Malaysia.  Considering the applicant’s personal circumstances and the country information, the Tribunal finds that the applicant will not have to be, or will be, discreet about her sexual identity on return to Malaysia. The Tribunal does not consider that the applicant will have to be discreet in her behaviour on return to Malaysia, noting the judicial guidance of Appellant S395/2002 v MIMIA [2003] HCA 71 on this point.

6. The Tribunal discussed societal attitudes towards homosexuals. The Tribunal noted that the situation for ethnic Malays was different to other ethnic groups of the Malay community, as stricter provisions of Islam were implemented by Islamic police. However the Tribunal does note that the situation for other ethnic groups was not without challenge. The Tribunal noted that political statements have vilified the homosexual community generally.

7. The Tribunal has considered the evidence regarding the treatment of lesbians in Malaysia. The Tribunal accepts that there is a degree of social stigma, formed through the conservative Islamist perspectives that affect all of the community, and comments by politicians. The Tribunal accepts the applicant’s contention that those identifying as gay in Malaysia have more difficulties than in Australia.

8. However the Tribunal does not accept that the treatment in the community of lesbians in Malaysia constitutes serious or significant harm. There are the legal provisions relating to unnatural acts, however as discussed above, these are not enforced in Malaysia other than one highly political case. The Tribunal finds that the applicant will not be imprisoned if discovered in a relationship with another woman. The Tribunal notes the DFAT information provided above that specifically identifies the issue for Muslim homosexuals, given the activities of the religious police in enforcing Syariah law, something that does not affect the applicant. The Tribunal does not accept that the applicant will be prosecuted by the authorities because of her sexual identity or activities. The applicant has not been prosecuted in the past. The Tribunal does not accept that she will be prosecuted in the future for this reason.

9. The Tribunal has considered the applicant’s claims that he will be harmed on return to Malaysia because of her homosexual identity. She did not make this claim on arriving in Australia, and lodged her protection visa application after a significant period of being unlawful. The Tribunal does not accept that the applicant was unaware of her visa status, or the ability to apply for protection. The Tribunal considers that the applicant did not apply for protection because she did not fear returning to Malaysia because of her sexuality. The Tribunal considers that the applicant does not have a subjective fear of harm arising out her sexual identity in Malaysia. The Tribunal considers that the applicant’s failure to seek protection for an extended period, supports this finding.

10. The Tribunal further finds that the applicant’s lack of a subjective fear of harm for these reasons is supported by the consideration of the country information. The Tribunal considers objectively, that while there are some difficulties in the community for some members of the gay community, the applicant, as a gay Chinese Malaysian woman, who does not face harm, including discrimination, that amounts to serious harm, as defined in s.5J(5) of the Migration Act. The Tribunal finds that the applicant does not have a real chance of serious harm arising from her being a lesbian in Malaysia, or on return to Malaysia. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

11. Further, having considered the claims and evidence, and the definition of significant harm as found in s.5(1) of the Migration Act, the Tribunal finds that the applicant does not have a real risk of significant harm on return to Malaysia for these reasons.

12. 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).

13. 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).

14. 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

15. 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.

    …