1513665 (Refugee)

[2017] AATA 1967

1513665 (Refugee) [2017] AATA 1967 (6 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513665

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Linda Symons

DATE:6 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2017 at 4:16pm

CATCHWORDS

Refugee – Protection Visa – Egypt – Religion – Jehovah’s Witness – State persecution – Islamic extremist groups – Lack of state protection – Credible witness

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Wang v MIMA (2000) 105 FCR 548

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 Egypt, arrived in Australia [in] December 2014 as the holder of a [visa] that was valid until [March] 2015. [In] March 2015, he was granted a Bridging visa in association with his application for a Protection visa.

3.     The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] March 2015. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 12 August 2016, he applied to the Tribunal for review of that decision.

4.     The applicant appeared before the Tribunal on 5 July 2017 to give evidence and present arguments. He was assisted by an interpreter in the Arabic (Egyptian) and English languages. The Tribunal also heard evidence from his [relative], [Relative A], and his friend, [Friend B]. He was represented by his migration agent.  

5.     The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.

CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

12.   The applicant’s claims in his application for a Protection visa filed [in] March 2015 are summarised as follows:

·He was born on [birth date] at Cairo in Egypt. He is a citizen of Egypt.

·He was married on [date] and has [number] children aged [age] years and [age] years. His wife and children continue to reside in Egypt. [Personal details of family].

·He is a [profession].

·He was born a [Christian]. In 1981, he was baptised as a Jehovah’s Witness. All of his family members are also practising Jehovah’s Witnesses.

·As a Jehovah’s witness, he has not had an official place of worship in Egypt as his religion is not recognised under Egyptian law. They have met in secret and conducted prayer meetings in the homes of members. He has been forced to practice his faith in private and in secret to avoid arrest or serious harm.

·In order to avoid arrest or serious harm, he and his family have had to resort to significantly limiting their preaching activities and prayer meetings. Most of the preaching they have undertaken has been done in a limited and secret manner. This has caused him anxiety because they have lived in constant fear and have not been able to effectively practice their religion in a manner that is prescribed under their faith.

·He has been subjected to severe discrimination, threats and intimidation in his workplace and in his dealings with government Departments. He has also been threatened on countless occasions by individuals, usually Muslims, who are offended by his presence. His children have also faced severe discrimination, threats and intimidation whilst completing their schooling.

·In the past three years the level of harassment, threats and intolerance has significantly increased. This is largely due to increased Islamic fundamentalism in Egypt including the supporting of ISIS, the Muslim Brotherhood and Salafists.

·Government intolerance of his faith and members of his Church has also not improved. His faith remains outlawed and he cannot rely on effective protection from the Egyptian authorities when threatened by fundamentalist Muslims or other hostile individuals. The only way he can survive in Egypt is to significantly reduce his religious activities and refrain from engaging in preaching activities which remains a core tenant of his faith. He is liable to be arrested if caught preaching to Muslims. This means that if he practices his faith in the manner that is required, he will be seriously harmed, killed or detained.

13.   The applicant has provided to the Department a copy of his Egyptian passport and a letter dated [in] March 2015 from the [Organisation 1]. It indicates that the applicant became a Jehovah’s Witness in Egypt in 1981 and has been attending the Congregation at [Organisation 1] since February 2015.

14.   The applicant attended an interview with the Department on [in] May 2015. During that interview, he re-iterated and expanded on his written claims.

15.   The applicant has provided to the Tribunal a copy of the Department’s Decision Record dated [in] September 2015, a copy of his Egyptian passport and two “Statutory Declarations” from [Friend B] and [Relative A] that have not been signed and dated before an authorised person. 

16.   Following the hearing, the Tribunal received written submissions from the applicant’s migration agent.

Nationality

17.   The Tribunal finds that the applicant is a citizen of Egypt based on his Egyptian passport and his evidence and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

Does Australia have protection obligations to the applicant under the refugee criterion?

18.   During the hearing, the Tribunal discussed with the applicant at length his conversion from being a [Christian] to becoming a Jehovah’s Witness. He was able to give detailed evidence about his conversion, his beliefs as a Jehovah’s Witness, how they differ from his beliefs as a [Christian], his practises as a Jehovah’s Witness in Egypt, the discrimination he faced in Egypt because he is a Jehovah’s Witness and his practises as a Jehovah’s Witness in Australia. The Tribunal found him to be a convincing witness and accepts that he is a genuine Jehovah’s Witness.

19.   The applicant gave evidence that when he was in Egypt he was unable to attend an official place of worship. He stated that they met at the homes of Jehovah’s Witnesses and had to be very cautious when attending meetings. He stated that he attended meetings twice a week. He stated that as a Jehovah’s Witness he is required to preach his beliefs and be a “witness for all nations”. He stated that it is illegal to preach to Muslims in Egypt. He stated that his opportunity to preach was very limited in Egypt. He stated that he preached to a small number of friends and extended family members whom he trusted not to harm him or report him to the Police. He stated that he did not preach to more than five people in total.  

20.   The applicant gave evidence that in Australia he has been attending meetings at a Kingdom Hall twice a [week]. He stated that he also preaches at [Suburb 1] and [Suburb 2] to people who speak Arabic. He stated that he accompanies his [relative] and they set up a stand at [Suburb 1], distribute brochures and books, speak to people who are interested and answer their questions. He stated that prior to his mother’s death he only attended meetings twice a week but has been preaching since June 2015. He stated that he preaches two to three times a week.

21.   The Tribunal discussed with the applicant what was likely to happen if he returned to Egypt. He stated that he will not be able to practise his beliefs according to the Bible. He stated that if he tries to preach in public he fears that he could be killed by Islamic extremists or imprisoned by the government. He stated that he tried to preach over the telephone until he found out that the telephones were monitored. He stated that, about 7 years ago, [a relative] was required to attend the Security Office because he was preaching amongst Muslims. He stated that a colleague of his used to have meetings at his home and was contacted by the Security Office and warned to stop the meetings. He stated that they had to change the location of the meetings. He stated that although he attends meetings in Egypt he lives in a state of fear that Islamic extremists may discover what they are doing and attack the building or burn it down. He stated that this is a common occurrence in Egypt. He stated that Islamic extremists do not distinguish between [Christians] and Jehovah’s Witnesses and they are all treated as Christians.

22.   The applicant’s [relative], [Relative A], gave evidence that he has known the applicant since 1982 and that he was a Jehovah’s Witness when he first met him. He stated that in Egypt the applicant’s practise of his religion was restricted and he was not able to preach freely. He stated that since coming to Australia the applicant has been able to practise his religion freely.  He stated that he has attended meetings at Kingdom Hall in Australia with the applicant twice a week for 2 years. He stated that those meetings were conducted in Arabic. He stated that the applicant continues to attend those meetings but he now attends meetings that are conducted in English. He stated that he and the applicant preach twice a week on [days]. He stated that they set up a stand at [Suburb 1] and preach to people. He stated that the applicant can only speak to Arabic speaking people.

23.   The applicant’s friend, [Friend B], gave evidence that he is an Australian citizen of [country of origin]. He stated that he is a Jehovah’s Witness and an Elder. He stated that he met the applicant approximately 2 years ago at Kingdom Hall in [Suburb 2]. He stated that the applicant attends meetings there twice a week on [days]. He stated that the meetings are conducted in Arabic. He stated that the applicant also preaches in [Suburb 2], [Suburb 3] and [Suburb 1]. He stated that the applicant is only able to speak to Arabic speakers. He stated that when Jehovah’s Witnesses go door knocking and come across Arabic speakers who are interested they pass on those people’s details to the applicant who is then able to visit the people and speak to them. He stated that the applicant is accompanied by his [relative] or friends when he preaches.

24.   The Tribunal has considered the written submissions provided by the applicant’s migration agent.

25.   The Tribunal has had regard to the Department’s policy guidelines and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Jehovah’s Witnesses

26.   The official Jehovah’s Witnesses’ website indicates that key aspects of their worship include the following:

·Praying to God.—Philippians 4:6.

·Reading and studying the Bible.—Psalm 1:1-3.

·Meditating on what they learn from the Bible.—Psalm 77:12.

·Meeting together to pray, study the Bible, sing, express their faith, and encourage fellow Witnesses and others.—Colossians 3:16; Hebrews 10:23-25.

·Preaching the “good news of the Kingdom.”—Matthew 24:14.

·Helping those in need.—James 2:14-17.

·Constructing and maintaining Kingdom Halls and other facilities used to further their worldwide Bible educational work.—Psalm 127:1.

·Sharing in disaster relief.—Acts 11:27-30.[1]

[1] What do Jehovah’s Witnesses Believe? Jehovah’s Witnesses.Org. ( Watchtower Society teaches that there are four requirements for salvation; accurate knowledge, avoid debauchery, Watchtower membership and proselytism.[2]

Country information

[2] Jason Baker, Jehovah’s Witnesses: Working Out Their Salvation, Watchman Fellowship. ( United States Commission on International Religious Freedom reports the following in relation to Egypt:

The Baha’i and Jehovah’s Witness faiths have been banned since 1960 by   Presidential decrees.

1. In recent years, the government has permitted Jehovah’s Witnesses to meet in   private homes in groups of fewer than 30 people, despite the community’s request to             meet in larger numbers. Jehovah’s Witnesses are not allowed to have their own   places of worship or to import Bibles and other religious literature. Over the past   year, security officials continued to harass and interrogate Jehovah’s Witnesses by   monitoring their activities and communications.

   There are approximately 1500 Jehovah’s Witnesses in Egypt.[3]

   [3] 2017 Annual Report, United States Commission on International Religious Freedom, 26 April 2017, CISEDB50AD3969

   30.   Christian Solidarity Worldwide reports the following:

   In 2010, the Cairo Administrative Court dismissed a lawsuit brought by Jehovah’s             Witnesses that would have compelled the government to recognise them as a   Christian denomination.[4]

   [4] Egypt: Freedom of Religion or Belief, Christian Solidarity Worldwide, 16 February 2017, CISEDB50AD4661.

   31.   The United States Commission on International Religious Freedom reports the following:

   While there is no legal ban on efforts to proselytize Muslims, the government uses   the Penal Code's prohibition on "denigrating religions" to prosecute those who   proselytize publicly, often adopting an overly expansive interpretation of denigration,   according to Human Rights Groups.[5]

   [5] 2015 Report on International Religious Freedom – Egypt, United States Department of State, 10 August 2016. (\\sydnetapp2\REFER\Research\2016\USDOS\IRF\EGY 2015 Report on International Religious Freedom - Egypt.pdf)

   FINDINGS

   32.   Having considered all the applicant’s claims and the evidence, The Tribunal finds that he is generally a credible witness. The Tribunal finds that he is a genuine Jehovah’s Witness. The Tribunal accepts that he faced some discrimination in the workplace and in the community because he is a Jehovah’s Witness.

   33.   The Tribunal accepts that the applicant was unable to attend a formal place of worship in Egypt as the construction of Kingdom Halls by Jehovah’s Witnesses is banned in Egypt. The Tribunal accepts that he attended meetings twice a week at the homes of various Jehovah’s Witnesses’, exercised caution when he did so and was fearful of being attacked by Islamic extremists when he did so. The Tribunal accepts that he was prevented from proselytising in public and was fearful that he would be killed by Islamic extremists or imprisoned by the government if he attempted to do so. The Tribunal accepts that he preached to close friends and extended family members he trusted in private but that this was limited to about five people in total.

   34.   The Tribunal accepts that the applicant has been attending meetings at a Kingdom Hall twice a week since his arrival in Australia. The Tribunal accepts that he has also been proselytising two to three times a week in public with his [relative] and friends.

   35.   The Tribunal accepts the country information referred to above. This country information indicates that the Jehovah’s Witness faith has been banned in Egypt since 1960 by Presidential decree. It indicates that in 2010 the Cairo Administrative Court dismissed a lawsuit brought by Jehovah’s Witnesses to compel the government to recognise them as a Christian denomination. It indicates that in recent years the government has permitted Jehovah’s Witnesses to meet in private homes in groups of fewer than 30 people. It indicates that, although there is officially no legal ban on efforts to proselytize Muslims, the government uses the prohibition on “denigrating religions” in the Penal Code to prosecute those who proselytize publicly. It indicates that Human Rights Groups have indicated that the government often adopts an overly expansive interpretation of “denigration”.

   36.   In view of the teachings of the Jehovah’s Witness faith, referred to above, the Tribunal accepts that key aspects of the practise of the faith include “constructing and maintaining Kingdom Halls and other facilities used to further their worldwide Bible educational work” and “preaching the ‘good news of the Kingdom’’”. The Tribunal accepts that preaching or proselytising is a core tenant of the applicant’s religion and intrinsic to the practice of his faith.  As the Jehovah’s Witness religion has been banned in Egypt, the Tribunal accepts that the applicant will not be able to attend meetings in a Kingdom Hall if he returns to Egypt. However, he will be able to continue to attend meetings at private homes provided the number of attendees is restricted to fewer than 30 people.

   37.   The applicant will also be able to continue to preach if he returns to Egypt provided that it is done in private and to people who are unlikely to place him at risk of harm. The Tribunal is satisfied that if he were to preach in public there is a real chance that he will be at risk of serious harm from Islamic extremists or prosecution by the Egyptian authorities for “denigrating religions”.

   38. The Tribunal has considered whether the applicant could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Egypt for the purposes of s.5J(3) of the Act. This would require him, on his return to Egypt, to modify his current behaviour of attending meetings at Kingdom Halls by attending small meetings at the private residences of Jehovah’s Witnesses. He would also have to modify his current behaviour of proselytising in public to restricting his proselytising to family and friends whom he trusts would not report him to the Egyptian authorities and do so in private. In view of the Tribunal’s findings in paragraph 36 below, the Tribunal is of the view that these modifications to his behaviour would require him to alter his religious beliefs or cease to be involved in the practise of all aspects of his faith. The Tribunal is of the view that these modifications to his behaviour cannot be required and would not be reasonable in the circumstances.

   39.   The Tribunal has considered the extent to which protection under the refugee criterion applies to the practise of religion as well as to its underlying beliefs. In Wang v MIMA, in the main judgment delivered by Merkel J, with whom Gray J agreed, he observed that for the purposes of the Convention, the Courts have generally taken a broad view of what constitutes the practice of religion. His Honour took into account Article 18 of the Universal Declaration of Human Rights which states:

   Everyone has the right to freedom of thought, conscience and religion: this right   includes freedom to change his religion or belief and freedom, either alone or in   community with others and in public or private, to manifest his religion or belief in                    teaching, practice, worship and observance. (Emphasis added)[6]

   [6] Wang v MIMA (2000) 105 FCR 548 at [73].

   40.   All members of the Full Court in Wangv MIMA concluded that the Tribunal had adopted an unduly narrow interpretation of religion, by failing to take into account the importance of the second, communal aspect.[7] The ban on the Jehovah’s Witness faith in Egypt, in effect, means that the applicant is denied the right to freedom of religion including the freedom to manifest his religion in teaching, practice, worship and observance in community with others and in public as he is unable to worship in community with others in public in a Kingdom Hall in Egypt and is unable to practice his faith by proselytising in public in Egypt. The Tribunal finds that if he practises his religion as required by his beliefs, there is a real chance that he will be persecuted for this reason if he returns to Egypt now or in the reasonably foreseeable future.

   [7] Wang v MIMA (2000) 105 FCR 548 at [10] per Wilcox J; at [101] per Merkel J, with whom Gray J agreed - see [20].

   41.   In view of the above, the Tribunal finds that the persecution that the applicant fears is for reason of his religion and that this is the essential and significant reason for the persecution which he fears. The Tribunal finds that the persecution he fears involves serious harm to the applicant as it involves a threat to his liberty or significant physical harassment or ill-treatment. The Tribunal finds that the persecution he fears involves systematic and discriminatory conduct in that it is deliberate or intentional and involves his selective harassment for reason of his religion.

   42.   Since the Egyptian government (as well as non-State agents) are responsible for the persecution that the applicant fears, the Tribunal considers that there is no part of Egypt to which the applicant could reasonably be expected to relocate where he would be safe from the persecution which he fears, that the real chance of persecution relates to all areas of Egypt and that effective protection is not available to him in Egypt.

   43. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his religion if he returns to Egypt now or in the reasonably foreseeable future. The Tribunal finds that the applicant is unable, or unwilling, because of his fear, to avail himself of the protection of his country of nationality. Therefore, the Tribunal finds that the applicant satisfies the criterion in s.36(2)(a) of the Act. It is accordingly not necessary to consider the alternative criterion in paragraph 36(2)(aa) of the Act.

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

   DECISION

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

   Linda Symons
   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.

   …