1516549 (Refugee)

[2017] AATA 2940

1516549 (Refugee) [2017] AATA 2940 (6 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516549

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Denis Dragovic

DATE:6 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 06 December 2017 at 11:58am

CATCHWORDS
Refugee – Protection visa – Pakistan – Ethnicity – Mohajir – Social group – Western educated person – Syed – Fears harm from radical, anti-west extremists

LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MILGEA v Che Guang Xiang (Unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1989) 17

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 and Border Protection [in] November 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied for the visas [in] January 2015. The delegate determined the first and second named applicants to be citizens of Pakistan. Without any information to the contrary and having sighted the first and second named applicants’ Pakistan passports I accept that the applicants are Pakistani. According to the Pakistan Citizenship Act 1951 children born outside of Pakistan to Pakistan born parents (both parents were born in Karachi) are considered citizens by descent. For this reason I find that the third and fourth applicants are also Pakistani citizens. As such I have assessed all applicants’ claims against Pakistan as their country of reference for the purposes of the ‘refugee’ criterion and receiving country for complementary protection purposes. I also find that the applicants cannot avail themselves of a right to enter and reside in a third country.

3. The delegate refused to grant the visas on the basis that they were not satisfied the first named applicant faced a real chance of serious harm or a real risk of significant harm from violent non-state groups based upon the claim of being a western educated person.

4. The first named applicant attended a hearing on the 13 December 2016 before a member whose term expired prior to finalising the decision. The applicant appeared before this Tribunal on the 9 November 2017.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.  

9. 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

10. 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 and Border Protection – 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

11. Summary of claims: The first named applicant is [an age] year old woman from Karachi who arrived in Australia in 2007 on a student visa and has not returned to Pakistan since. She has [several] Australian born children ([one of them] having arrived after the delegate’s decision) and is accompanied in her application by her husband. The applicant fears returning to Pakistan for the reason of being harmed by radical, anti-west extremists in Pakistan because they have lived in Australia, a western country; because the applicant has studied [a course] in Australia; and because the children were born in Australia. They claimed that there is a high level of terrorist activity including killing and kidnapping of civilians in Karachi and more generally in Pakistan and that the authorities are too scared or too corrupt to control the terrorism or convict the extremists.

12. At both hearings, the Tribunal took evidence mainly from the applicant. The husband, who was present during the hearing, indicated to the Tribunal that he was there as a support to his wife and not as a witness.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Evidence and findings of fact

14. The first named applicant (the applicant) was born in Karachi [in date]. The second named applicant (the husband) was born in Karachi [in date]. The other two applicants (the children) were born in Australia [in date] and [in another date].

15. The applicant entered Australia [in] August 2007 as the holder of a student visa. The husband accompanied her as her dependent. The applicant has stated she completed [two qualifications] in Karachi.  She told the Tribunal she studied at [a] school and also completed [another] qualification in Karachi. Since being in Australia, she has completed [several qualifications]. She was undertaking [another qualification] but did not complete this. In Australia, she has worked as [an occupation] and in [another industry] on a casual basis. The husband completed [a grade] in Pakistan and has worked casually in [workplaces] in Australia. I accept this narrative of the applicants’ backgrounds.

16. The applicant’s parents are living in Karachi. Her father worked for [a] company and is now retired. She has [a number of siblings] also living in Karachi. Her brothers worked for [a] company but are now working in business. She does not know the details of their employment. The husband’s father, who is deceased, was [in an occupation] in [a type of] industry. He has [several siblings] living in Karachi and one [sibling] who is deceased. [Details deleted]. I accept this narrative of the applicant’s family circumstances.

17. The husband and wife are both Muslims and Urdu speaking Mohajirs, Urdu speaking Muslim immigrants from India and their descendants. When asked if she is a Sunni or Shia Muslim, the applicant said she does not subscribe to any sect.  She never prays or goes to mosque. Her father, who passed away [a number of] weeks prior to the second hearing, would sometimes go to the mosque. The applicants did not claim to be Shia Muslims. I accept this as accurately reflecting the applicant’s faith.

18. It was put to the Tribunal and I accept that neither applicant has been a member of any political party or been involved in politics.

19. When asked if she had experienced any harm in Pakistan, the applicant said that nothing had happened to her before she left Pakistan. She stated that one of her [siblings] was nearly shot on the street a long time ago, she can’t remember when, and she stated that a [relative] was playing in a park and was injured in a bomb blast [when] he was about [a certain age] (he is now [older]). She doesn’t know who was responsible for the bomb blast or who was being targeted. When asked why she did not mention these incidents before, the applicant said the delegate didn’t ask her these questions. When asked why she didn’t refer to these incidents in her protection visa application, the applicant said she might have forgotten. I accept that these events occurred despite the applicant not including them in her earlier submissions. No evidence was put forward that her brother or [relative] were targeted. I find that these events arose as a result of being in the wrong place at the wrong time.

20. The applicant put to the Tribunal that lots of Pakistanis are joining Daesh. This means there is a pro extremist mindset in Pakistan. She referred to a news report about 14 Pakistanis joining Daesh in Syria (f.75T). She has heard that Islamic State (IS) is present in Karachi and elsewhere in Pakistan and wants to create a state across Afghanistan and Pakistan. She referred to news reports about a new style of university educated militants (f.68T) and to the killing of 45 Ismaili Shias in Safoora Chowk in Karachi in May 2015.[1] I do not accept the statement that ‘lots of Pakistanis are joining Daesh’ but I do accept the evidence provided of instances in which such recruitment has occurred.

    [1] See ‘Pakistani gunmen kill 45 on Karachi Ismaili Shia bus’, BBC News, 13 May 2015; Tehreek-e Taliban claimed responsibility

21. As discussed with the applicant, the Pakistan government has taken steps in the last few years to tackle the extent of militant and extremist violence in Pakistan. In 2013, Pakistan established a National Counter Terrorism Authority (NACTA) which has developed a 20 point National Action Plan to counter terrorism. In 2013, a paramilitary Ranger operation commenced in Karachi to eradicate political violence and in June 2014, the Pakistan Army commenced a counter-terrorism operation called Zarb-e Azb which was subsequently in 2017 given new impetus and renamed Radd-ul-Fasaad.

22. The Department of Foreign Affairs has referred to the counter-terrorism operation as being successful:

    Operation Zarb-e-Azb and the NAP are credited with a significant reduction in the number of violent attacks in Pakistan. According to the South Asian Terrorism Portal, more than 600 civilians and 290 security force personnel were killed in terrorist incidents in 2016, down from more than 3,000 civilians and 676 security force personnel in 2013. Civilian fatalities from terrorism over the first 5 months of 2017 were similar to the same period in 2016, with several terrorism-related incidents killing around 270 civilians.[2]

    [2] DFAT, DFAT Country Report Pakistan, 15 January 2016 at [2.33]

23. In 2016, the Pakistan Institute for Peace Studies (PIPS) reported a further 28% decline in terrorist attacks in 2016 with a total of 441 attacks across the country claiming 908 lives. The perpetrators were Taliban like Islamist militants, nationalist insurgent groups and sectarian terrorists. Those killed included 504 civilians, 302 security personnel and 61 militants; 1,157 civilians were injured. Civilians were targeted in 89 of the attacks (20%). Of these, 27 attacks targeted tribal elders and members of peace committees and tribal lashkars, 34 attacks were sectarian in nature, 30 attacks targeted state infrastructure and government officials  and the others targeted religious minorities (5), educational institutions (6), health/polio workers (4), foreign workers and interests (4), journalists (2), non-Baloch settlers (2) and private property (2). Most of the attacks occurred in Baluchistan (151) which had the highest number of casualties (412 killed and 702 injured). The second most affected area was Khyber Pakhtunkhwa (127 attacks, 189 killed and 355 injured) and the third most affected area was the Federally Administered Tribal Area (FATA) (163 killed and 221 injured).[3] 

    [3] Pakistan Institute for Peace Studies (PIPS), ‘Pakistan Security Report Overview’, PIPS Research Journal Conflict and Peace Studies, vol. 9 Spring 2017 (Jan-June) No 1

24. Karachi has experienced violence arising from the power struggle between the Muttahida Quami Movement (MQM), the Awami National Party (ANP) and the Pakistan People’s Party (PPP). The armed wings of these parties are responsible for mutual assassinations of political leaders and workers, riots and deadly clashes between supporters. Karachi has also been the base for over 200 armed criminal gangs.[4]   

    [4] European Union: European Asylum Support Office (EASO), EASO Country of Origin Information Report. Pakistan Security Situation, August 2017, accessed 9 November 2017,  >

    Whilst political, ethnic and sectarian violence has continued to occur in Karachi, the number of fatalities from such violence in 2016 was down 47% from 2015 which was down 55% from 2014.[5] The Citizen–Police Liaison Committee reported that recorded murders in Karachi fell to 650 in 2015 which was a 75% drop from 2013.[6]  One media source has reported that former Taliban no-go areas in Karachi have been liberated.[7] PIPS reported that there was a decline in attacks in Karachi in 2016 with 60 people killed.[8]  

    [5] European Union: European Asylum Support Office (EASO), EASO Country of Origin Information Report. Pakistan Security Situation, August 2017, accessed 9 November 2017, ‘Karachi property prices soar after crime crackdown’, Reuters, 1 March 2016

    [7] ‘Taliban ‘no-go zones’ liberated in Karachi’, Express Tribune, 14 September 2015

    [8] Pakistan Institute for Peace Studies (PIPS), ‘Pakistan Security Report Overview’, PIPS Research Journal Conflict and Peace Studies, vol. 9 Spring 2017 (Jan-June) No 1

25. When the Tribunal discussed this country information with the applicant which indicates an improved security situation in Pakistan as set out above, the applicant said the National Action Plan has been a failure, the courts are setting terrorists free and the only people being convicted are involved in personal disputes. She referred to an ABC news report, ‘Pakistan court frees on bail accused mastermind of Mumbai attack: lawyer’ (f.59T) and stated that Mullah Rashid, the leader of IS, is in Islamabad and that there are a lot of militant networks across Pakistan including the Haqqani Network. In determining which source of evidence to give greater weight I have considered the independence of the sources, their access to a broad breadth of information and ability to provide considered analysis. For these reasons I give substantial weight to the third party sources quoted in this decision and little weight to the verbal evidence submitted by the applicant on the situation in Pakistan.

26. The Tribunal notes the applicant is a Mohajir. She did not claim to fear any harm because of this ethnicity. Mohajirs reportedly comprise 48% of the population of Karachi. Whilst supporters or members of the MQM, which is a Mohajir party, have been harmed in ethno-political violence involving the ANP and the PPP, the applicant has stated and I accept that neither she nor her husband have been involved with the MQM in the past and she has not claimed that she would be involved in the future.

27. The applicant claims that Syeds are targeted. The South Asia Terrorism Portal (SATP) has reported on eight Shia Syeds killed in Karachi in 2014 and three killed in 2015. These attacks have been sectarian in nature and some of those killed also had a profile associated with the government or the Shia religion including a police officer, lawyers, a trustee of a Shia mosque and the provincial president of a Shia organisation.[9] The information before the Tribunal does not indicate that Syeds are targeted just because they are Syeds.

    [9] See DIBP Q and A Report, Pakistan: Pakistan CI160413115147078 – Sayyid/Syed/Sayed – Non-governmental organisations – Quetta, 18 April 2016

    Considerations

28. When asked why she would be targeted by extremists or militants, the applicant stated that [Syeds] are targeted.  She referred to the killing of four Hazara women in Quetta, Baluchistan, and stated that they were killed because they were Syed. The Tribunal noted that the women were killed because they were Hazara and Shia, not because of their names (see f.35T). Country information indicates that the name Syed can attach to both Sunnis and Shias[10] and usually refers to persons who claim direct descent from the Prophet and confers a degree of social status.[11] The applicant is not a Shia and having regard to country information which indicates that Syeds are not targeted for reason of their name or lineage from the Prophet the Tribunal is satisfied the applicant does not face a real chance of serious harm or a real risk of significant harm in [Pakistan].

    [10] DFAT, DFAT Thematic Report Shias in Pakistan, 15 January 2016

    [11] T Rahman, 2015, Names: A Study of Personal Names, Identity and Power in Pakistan, Oxford University Press, Karachi

29. The applicant fears a high level of extremist violence in Pakistan and she fears she or her family will be caught up in an attack and harmed.  At both the first and second hearings she provided a large number of news and other reports relating to militant and terrorist violence in Pakistan. The applicant claimed violent attacks by non-state actors are common. She could be in a bus that is blown up or her children could be in a park that is attacked. Many common citizens are targeted. She referred to a Wikipedia entry about attacks in Pakistan and a SATP list of bomb attacks in Pakistan.  The Tribunal noted that most of the incidents referred to in the SATP list occurred in Baluchistan, the FATA or Khyber Pakhtunkhwa areas where there are ongoing tensions or conflicts. The Tribunal reviewed the Wikipedia list and noted that few incidents were in Karachi. The applicant told the Tribunal that she fears harm from militants and extremists in general and not any particular group. She provided additional country information regarding attacks that have occurred specifically in Karachi which were overwhelmingly related to attacks against the police or prominent people.

30. The Tribunal discussed with the applicant that it has to consider if there is a real chance or real risk she will be harmed. It noted that the attacks referred to through submissions and at the hearing were targeted attacks on security forces and religious minorities. The applicant said that anyone can be hurt in these attacks. Extremists are everywhere and can be in universities, in schools or sitting next to you on the bus, not just in the mountains, and the government supports this network. Suicide bombers don’t care who you are. She referred to the attack on the police academy in Quetta in October 2016 which killed 60 cadets[12] and claimed that the security forces cannot protect her or her family. She noted that Benazir Bhutto was killed.[13]  

    [12] See ‘Quetta attack: LeJ kills 60 in Pakistan police academy’, Al Jazeera, 25 October 2016. Lashkar-e Janghvi (LeJ), a sectarian extremist group which has targeted security forces claimed responsibility

    [13] Former Pakistani Prime Minister Benazir Bhutto was killed on 27 December 2007 whilst campaigning for parliamentary elections

1. When put to the applicant that the number of deaths in terrorist violence in Pakistan since the military and Ranger operations commenced is relatively small compared to the size of the population of 190 million and that similarly, the extent of casualties in Karachi is relatively small compared to the population of 15 million the applicant said that it was large enough for her to face a real chance of being a victim. Noting the applicants’ submissions and relevant country information I find that they do not face a real chance of serious harm or a real risk of significant harm arising from generalized violence including but not limited to such risks as being a victim of terrorism (including kidnapping by terrorists) in the reasonably foreseeable future were they to return to Karachi.

2. The applicant claims she and her family will be targeted in Pakistan because they have lived in the west or because they were born in Australia.  As discussed with the applicant, tens of thousands of Pakistanis travel to the west to visit, work and study or live in the west and return regularly to visit family. Western influence is pervasive in Pakistan, particularly in cities such as Karachi, and English is one of the official languages of Pakistan.[14] The Tribunal notes the applicant will be returning to Karachi, not a remote tribal area. She stated that extremists are not just in the mountains, they are everywhere in Pakistan including in the universities. Wherever she lives in Pakistan, people will know she has been in Australia and that her children were born in Australia. The applicant said she is worried about her son going to school and being blown up. The attack on the Peshawar school was a horrible incident and lots of schools were threatened and closed for a period of time afterwards. She stated that she does not want to face these things in Pakistan. 

   [14] Ibid

3. At the second hearing the Tribunal read to her from the 2016 DFAT Pakistan report the following section:

   3.140 DFAT assesses that individuals in Pakistan are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country.

   The applicant had nothing to add and reverted to her main concern about the general situation in Pakistan.

4. As quoted above, country information from DFAT suggests that ‘individuals in Pakistan are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations’. The Tribunal is satisfied the applicant and her family members do not face a real chance of serious harm or a real risk of significant harm in Pakistan because they have lived in or been born in Australia.

5. When asked about her fears arising from having studied [a course] in Australia, the applicant said that [people working in certain occupations] have been targeted in Pakistan. The Tribunal noted that [Occupation 1] are distinct from [these occupations] and that there must be many [people in Occupation 1] in Pakistan who are not targeted. The Tribunal also notes the applicant has not completed [her] qualification. The Tribunal accepts that [certain] workers engaged in [a specified job] have been targeted in the tribal regions of Pakistan however the applicant has never worked  [in that occupation] and did not claim she would undertake such work on return to Pakistan nor do I consider that a possibility in the reasonably foreseeable future. As discussed with the applicant, information before the Tribunal does not indicate that [Occupation 1] [workers] engaged in the provision of general [services] to communities in Karachi are targeted because of their work or profession. The Tribunal is satisfied the applicant does not face a real chance of serious harm or a real risk of significant harm in Pakistan were she to obtain [work in a certain field].

6. Country information indicates that harm deriving from being a Mohajir in Karachi arises in clashes between members of the MQM and other ethnocentric political groups. The applicant or her husband has not claimed to have been involved in politics and has not expressed any interest to do so in the future. The Tribunal is satisfied the applicants do not face a real chance of serious harm or a real risk of significant harm in Pakistan because of their perceived ethnicity.

7. The applicant has claimed a fear of being unsafe at night for being a woman. The applicant has not experienced harm in the past and while the Tribunal recognises the high levels of harassment and violence women face in Pakistan the cultural norms of society are such that family members provide a degree of protection. For these reasons I find that she does not face a real chance of serious harm or a real risk of significant harm were she to return to Karachi and move around at night.

8. In MILGEA v Che Guang Xiang the Court required that to establish a real chance it is necessary to look at the totality of circumstances.[15] The Tribunal accepts the applicants may have a subjective fear of returning to Pakistan due to the range of violent incidents including terrorist attacks that have occurred over the past several years in Pakistan. However, having regard to the decline in attacks and casualties since the commencement of Zarb-e Azb and Ranger operations, the number of attacks and casualties vis-a-vis the size of the population, the absence of any past harm to the applicant, the fact she is not a target of militant or sectarian violence – she is of the majority religion, major ethnicity and not involved with any political party – and as the Tribunal is satisfied she has no other profile which would cause her to be targeted for harm, the Tribunal does not accept the applicant or her family members face a real chance of serious harm or a real risk the applicant or her family members will suffer significant harm if returned to Pakistan.

   [15] Unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994 at [17]

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

   DECISION

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

    Denis Dragovic
    Senior 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.

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