1513818 (Refugee)

[2017] AATA 2006

1513818 (Refugee) [2017] AATA 2006 (16 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513818

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Linda Symons

DATE:16 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 16 October 2017 at 12:38pm

CATCHWORDS
Refugee – Protection visa – Egypt – Religion – Jehovah’s witnesses – Social group – Victim of selective harassment from religion

LEGISLATION
Migration Act 1958, ss 5H-LA, 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, first arrived in Australia [in] February 1998 as the holder of a [visa] that was valid until [May] 1998. He applied for and was granted two [Visitor] visas [in] May 1998 and [in] August 1998. He departed Australia [in] February 1999 prior to the expiry of his Visitor visa [in] February 1999. He returned to Australia [in] December 2014 as the holder of a [another] Visitor visa that was valid until [March] 2015.

3.     The applicant applied to the Department of Immigration and Border Protection (the Department) for a Protection visa [in] March 2015 and was granted an associated Bridging  [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 October 2015, he applied to the Tribunal for review of that decision.

4.     The applicant appeared before the Tribunal on 9 August 2017 to give evidence and present arguments. The Tribunal also heard evidence from his [brother] and a [friend]. He was assisted by an interpreter in the Arabic (Egyptian) and English languages. 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 are summarised as follows:

·He was born [in date] in Cairo, Egypt and is an Egyptian national. He is single and has never married. He is an [occupation].

·He was born a Coptic Christian. In 1976, he became baptised as a Jehovah’s Witness. All of his family members are also practising the Jehovah’s Witness faith.

·His mother is an Australian citizen and resides in Australia along with his [siblings].

·As the Jehovah’s Witness faith is not officially recognised in Egypt, they are forced to meet and conduct prayer meetings secretly in the homes of members of the faith. They are forced to maintain a low profile and limit their religious activities to avoid arrest or attacks by individuals.

·He has been subject to severe discrimination, threats and intimidation at his workplace and in his dealings with government Departments. He was threatened on countless occasions and beaten up on at least one occasion whilst preaching. Most of the preaching activities he has undertaken were done in a limited and secret manner. He was investigated by intelligence authorities because of his religious activities. This took place in 2006, prior to his intended travel [overseas], and he was prohibited from continuing his journey.

·Since the Arab Spring uprising the level of harassment, threats and religious intolerance has increased. Islamic radicalisation continues with Christian minorities being the main target of their campaign to eradicate Egypt of all non-believers. Government intolerance of the Jehovah’s Witness faith has not improved and they are not offered protection by the authorities when threatened.

·The only way to survive in Egypt is to reduce their religious activities. They are liable to be arrested if caught preaching to Muslims. This places restrictions on their core beliefs as they are required to preach to everyone. If they practice their faith in a manner that is required, they will be seriously harmed, killed or detained.

·Relocation to another part of Egypt will not assist as Islamic religious intolerance exists everywhere in Egypt and the law prohibiting preaching to Muslims applies throughout Egypt.

13.   The applicant has provided to the Department a copy of his Egyptian passport, a Medical Directive and a letter dated [in] April 2015 from [a congregation] which indicates that he became a Jehovah’s Witness in Egypt some years ago, came to Australia in January 2015 and has been attending meetings regularly since then.  

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

15.   The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] September 2015. He has also filed with the Tribunal a Statutory Declaration dated [in] August 2017 by himself, a Statutory Declaration dated [in] August 2017 from [the applicant’s brother], a “Statutory Declaration” dated [in] July 2017 from [the applicant’s friend] which has not been signed before an authorised person and two Blood Cards dated [in] March 2015 and [in] July 2017.

16.   Following the hearing, the Tribunal received post hearing submissions dated 10 August 2017 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 his conversion from the Coptic Christian faith to the Jehovah’s Witness faith, his reasons for doing so, his beliefs as a Jehovah’s Witness, his practises as a Jehovah’s Witness in Egypt, the problems 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 attended meetings of Jehovah’s Witnesses twice a week on Thursdays and Sundays. He stated that these meetings were held at the homes of Jehovah’s Witnesses. He stated that the meetings were held in secret to avoid detection by government officials and neighbours. He stated that he preached to friends and relatives when he had the opportunity to do so. He stated that he also preached to shop owners who were Christians. He stated that he was subject to verbal abuse and denigration as a result. He stated that on one occasion someone hit him. He stated that this incident happened a long time ago at about the end of the 1980s.

20.   The applicant gave evidence that there was another incident which resulted from him visiting someone’s home twice and preaching to him. He stated that that person’s friend reported him to a pastor. He stated that subsequently the pastor, accompanied by many people, confronted him in relation to his preaching and the people he was with threatened to kill him or report him to the Police if he returned to that person’s home. He stated that this incident occurred about 3 or 4 years before he came to Australia. He stated that he always preached to Christians and had a similar problem on another occasion.  

21.   The applicant gave evidence that when he lived in Australia between 1998 and 1999 he attended meetings at Kingdom Halls and preached to Arabic speaking people. He stated that since he has been living in Australia from 2014 he has been attending meetings at Kingdom Hall twice a week and preaching two to three times a week. He stated that he preaches in company with other Jehovah’s Witnesses who are also Arabic speakers. He stated that when Jehovah’s Witnesses go door knocking and identify Arabic speaking people they pass on the information to him and other Arabic speakers who then visit them. He stated that he has preached in [different suburbs].  

22.   The Tribunal discussed with the applicant what was likely to happen if he returned to Egypt. He stated that he will not have the freedom to attend meetings in a Kingdom Hall. He stated that he will not be able to preach to everyone. He stated that he cannot preach to Muslims and is limited to preaching to Christians. He stated that even this has resulted in him being denigrated and threatened. He stated that he fears harm from the authorities and Muslim extremists.  

23.   The applicant’s brother [gave] evidence that he has lived in Australia for 20 years and is an Australian citizen. He stated that he last went to Egypt in 2011 to visit his family. He stated that the area where the applicant lives in Egypt has a high concentration of people who are Salafists and members of the Muslim Brotherhood. He stated that there is a mosque [in the neighbourhood]. He stated that the Iman preaches over a loud speaker and provokes believers against Christians and other “non-believers”. He stated that there have been incidents where women who are not covered have been burnt by acid spray. He stated that the applicant cannot practise his beliefs freely and confidently. He stated that the Bible says he must approach and preach to all human kind. He stated that he cannot do that in Egypt and if it becomes known that he is doing that his life would be in danger. He stated that he lives alone and this increases the risk to him.

24.   [The applicant’s brother] gave evidence that the applicant attends meetings in Australia twice a week. He stated that he also preaches with a group in different areas. He stated that he also stands outside the Railway Station handing out brochures and books.

25.   The applicant’s friend [gave] evidence that she first met the applicant 2½ years ago at a meeting at Kingdom Hall in Australia. She stated that since then she has met him at meetings twice a week. She stated that they also preach together on Thursdays and Sundays. She stated that they have gone door knocking together and she speaks to English speakers and he speaks to Arabic speakers.

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

27.   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

28.   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

   32.   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.

   33.   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

   34.   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.

   35.   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 coming to the adverse attention of the authorities and being attacked by Islamic extremists when he did so. The Tribunal accepts that he was afraid to proselytise in public and was fearful that he would be killed by Islamic extremists or harmed by the authorities if he attempted to do so. The Tribunal accepts that in private he preached to friends, relatives and Christian shop keepers. The Tribunal accepts that he was subject to threats of harm in the past for doing so and was assaulted on one occasion.

   36.   The Tribunal accepts that when the applicant resided in Australia between 1998 and 1999 he attended meetings at Kingdom Halls twice a week and preached to Arabic speaking people. The Tribunal accepts that since he has been living in Australia since 2014 he has been attending meetings at a Kingdom Hall twice a week and proselytising two to three times a week in Arabic. 

   37.   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”.

   38.   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.

   39.   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”.

   40.   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 Christians whom he trusts not to harm him or report him to the Egyptian authorities and do so in private. In view of the Tribunal’s findings in paragraph 38 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.

   41.   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].

   42.   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].

   43.   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.

   44.   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.

   45. 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.

   46. 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

   47. 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.

   …