1601554 (Refugee)

[2016] AATA 4245

1601554 (Refugee) [2016] AATA 4245 (8 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601554

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Chris Thwaites

DATE:8 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2016 at 9:02am

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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] August 2015.

3. [In] February 2016 the delegate refused to grant the visa.

4. On 10 February 2016 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provide to the Tribunal by the applicant.

6. The applicant’s written reasons for claiming protection are contained in her visa application forms. In summary the applicant states she is [age] years old and the reason she left her country was because of the problems she had been through. Her father is a [patient]. With her salary she couldn’t afford his treatment. With her friend’s help she went to ask help from a politician. They told her that they would help her, but they asked her to be a member of their party and that she needed to sign a paper. The paper she was asked to sign was for changing her religion. The applicant was told they can’t do anything and she must change her religion to Muslim. The applicant states she was not interested in that. The applicant states they misused her situation. The applicant states that because of this problem the applicant left her country seeking protection in Australia. The applicant states the rest of the story she needs to explain to the immigration officer. The applicant states she thinks that if she returns to her country they will change her religion to Muslim.

7. In the visa application form the applicant indicates she did not move or try to move to another part of her country to seek safety, and states that was because this is a political issue and a religious problem. The applicant indicates she thinks she will be harmed or mistreated if she returns to her country, and states the politician will mistreat her to change her religion to Muslim. The applicant indicates she does not think the authorities in her country can and will protect her if she returns. She states that because in her country you can’t change from the Muslim religion to another religion they won’t help her with this problem. The applicant states that because this is a religion problem they can’t easily relocate her.

8. As noted above, [in] February 2016 the delegate refused to grant the applicant a protection visa. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, noted the applicant had provided no proof to substantiate her claims, and also noted the country information indicated Buddhists usually do not faced discrimination, and the Malaysians authorities are able to provide an adequate level of protection for their citizens. Therefore the delegate was not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act, and was not satisfied the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(a). The delegate also found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real risk the applicant will suffer significant harm. Therefore the applicant was not a person in respect of whom Australia has protection obligations under s.36(2)(aa). Therefore the delegate refused to grant the applicant a protection visa.

9. The applicant appeared before the Tribunal in person on 2 May 2016. Unfortunately, immediately after the hearing commenced the Tribunal was unable to proceed with the hearing that day, and adjourned the matter to 16 May 2016.

10. On 11 May 2016 the applicant requested the hearing be rescheduled as she was moving from [one city] to [another city] for work.

11. The Tribunal granted the applicant’s request and scheduled the recommencement of the hearing by video conference with the applicant attending from [the other city] on 28 July 2016.

12. On 28 July 2016 the applicant appeared before the Tribunal via video conferencing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

13. During the hearing the applicant told the Tribunal she fears returning to Malaysia because a politician had tried to force her to change religion and become a Muslim before he would lend her any money to assist with her father’s medical treatment costs. The applicant also told the Tribunal she feared returning to Malaysia because she had borrowed money from a money lender at high interest rates and had not been able to continue to pay the monthly repayments and had been threatened they would take her away if she did not repay the loan. The applicant also told the Tribunal she fears returning to Malaysia because the security situation is unstable The applicant told the Tribunal there were fights and robberies in Malaysia and she had been beaten and  robbed and the mirror on her car had been taken, and there was nothing the police could do to catch the people. The applicant also told the Tribunal she feared returning to Malaysia because the political situation was not good. On questioning, the applicant told the Tribunal the political satiation was not good because when she had asked the politician for money, she had been asked to join the Muslim religion.

    CRITERIA FOR A PROTECTION VISA

14. 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.

15. 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.

16. 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).

17. 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.  

18. 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

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    FINDINGS AND REASONS

    Nationality

20. The applicant claims to be a citizen of Malaysia and provided a copy of her Malaysian passport to the Department. On the basis of the copy of her passport the Tribunal finds that the applicant is a national of Malaysia. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Malaysia.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Malaysia, the Tribunal also finds that Malaysia is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

21. During the hearing the applicant told the Tribunal that a friend had helped her complete her visa application forms. The applicant told the Tribunal she understood the contents of the forms when she signed them and did not wish to add to or change the information provided in the forms.

22. During the hearing on 28 July 2016 the Tribunal spoke to the applicant about her background in Malaysia, her family composition, her education and work history, as well as the reasons she left Malaysia and her fears of returning. The Tribunal raised its concerns that the applicant’s oral evidence was different to the information she had provided in her visa application forms. The Tribunal also raised its concerns the applicant changed her oral evidence during the hearing. The Tribunal finds the applicant is not a witness of truth and the Tribunal is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of her claims. The reasons for this finding are discussed in more detail below.

23. During the hearing the applicant told the Tribunal she had borrowed money from a money lender at a high interest rate and had been unable to keep up the repayments and was threatened by the money lender who came to her family home and threatened her that if she did not repay the money and interest they would take her away. The applicant told the Tribunal she left her family home in order to avoid the money lender and then left Malaysia. The Tribunal raised its concerns that the information in the applicant’s visa applicant forms makes no mention of the applicant borrowing money from a money lender at a high rate of interest and then being threatened when she was unable to repay the money.

24. The Tribunal noted that while the information in the visa application forms provided in relation to the question about why the applicant left her country referred to the applicant’s father having a [medical condition], and the applicant approaching a politician for financial help and being asked to change her religion, it also states that because of this problem the applicant left the country and sought protection in Australia. The Tribunal noted that while the information then states that the applicant would explain the rest of the story to the immigration officer, the Tribunal also noted that in answer to the question about what the applicant thought will happen to her if she returned to the country the applicant states “they will change my religion as a Muslim”, and makes no mention of fears about a money lender. The Tribunal also noted that in response to the question about if the applicant thinks she will be harmed or mistreated if she returns to her country, the applicant is indicating yes and stated the politician will mistreat the applicant, to change her religion as a Muslim with the paper she signed. The Tribunal raises concern that no mention was made about fears in relation to a money lender in response to this question.

25. In response the applicant told the Tribunal that at the time her visa application forms were completed her English was poor, and she asked a friend to help her complete the forms, and her friend told her it was okay with what she had put in the forms, and that she could tell the details of her claims when she went to a hearing. The applicant’s told the Tribunal she was telling the truth and that her English was poor and she had no experience filling in the forms. On questioning the applicant told the Tribunal her friend was not a migration agent or a solicitor and was just a friend who spoke English.

26. While the Tribunal accepts the applicant’s first language is not English, the Tribunal notes the information in the visa application forms indicates the applicant speaks, reads, and writes English, Malay and Chinese. While the Tribunal accepts the applicant may have asked a friend to help complete the visa application forms, the applicant also told the Tribunal at the start of the hearing that she understood the contents of the forms when she signed them, and that she did not wish to add to or change any of the information provided. The Tribunal considers the claims in relation to the threats made by a money lender are not mere details of the claims outlined in the visa application forms. As noted above, the applicant failed to mention this claim in response to the forms questions about what she thinks will happen if she returns to her country, and who she thinks may harm or mistreat her.

27. The Tribunal considers the omission of threats from a money lender in the visa application forms reflects poorly on the applicant’s credibility and the reliability of her evidence.

28. During the hearing the applicant also told the Tribunal that about two months after she left Malaysia the money lender approached her parents’ house and spray painted on an iron door, and in response the applicant’s parents had moved from their family home into temporary rented accommodation. The Tribunal raised its concerns that the applicant had failed to mention this in her visa application forms. The applicant gave a similar response to the responses noted above, stating a friend helped her complete the forms. The Tribunal is not persuaded this response explains the omission of such a significant claim, that the applicant’s parents moved away from their family after the applicant left Malaysia due to the moneylender. The Tribunal considers the applicant’s failure to make any mention of this in the visa application forms reflects poorly on the applicant’s credibility and the reliability of her evidence.

29. During the hearing the applicant told the Tribunal that she was living with her parents in her family home prior to leaving Malaysia. The applicant confirmed her parents owned the family home and provided an address that was consistent with the information provided in the visa application forms. The Tribunal raised its concerns that the applicant had later told the Tribunal that in order to avoid the moneylender, she moved away from her family home and lived with relatives in Kuala Lumpur for about one month before she left Malaysia.

30. The Tribunal also raised its concerns that in answer to the question in the visa application forms, “did you move, or try to move, to another part of the country to seek safety”, the applicant had indicated she did not, and stated that was because this is a political issue and a religious problem.

31. In response the applicant told the Tribunal she had provided information about the family home address as that was the family home. On further questioning the applicant told the Tribunal she did not know what else to say, but what she was saying was the truth.

32. During the hearing the Tribunal also raised its concerns that the applicant had initially told the Tribunal that her parents were living at the family home they owned, and had done so for [number] years, and she had provided the address noted in her visa application forms. The Tribunal raised its concerns that the applicant later told the Tribunal that her parents had moved from the family home about three months after she had left Malaysia, and were now living in rented accommodation about one hour from their family home in order to avoid the moneylender.

33. In response the applicant told the Tribunal that she had referred to her family home because it was her family home, and the house her parents are currently living in is temporary and they had only moved out temporarily.

34. The Tribunal is not persuaded by the applicant’s response. The Tribunal does not accept the applicant was confused about the nature of the Tribunal’s questions in relation to where her parents are currently living. The Tribunal considers the applicant has provided significantly different oral evidence in relation to where her parents are living. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of her evidence.

35. During the hearing the Tribunal also raised its concerns that the applicant had made no mention in her visa application forms about fearing returning to Malaysia because of the security situation. During the hearing the applicant had told the Tribunal she also feared returning to Malaysia because of the security situation, and that fights and robberies happened, and that she had also been beaten and robbed in Malaysia, and a mirror had been taken from her car, and the police were unable to find the people.

36. The Tribunal also raised its concerns that in her visa application forms, in answer to a question “did you experience harm in that country”, the applicant indicated she had not, and made no mention of having been beaten or robbed.

37. In response to the Tribunal’s concerns, the applicant told the Tribunal she did not know what to say. The Tribunal is not persuaded by the applicant’s response. As noted above, while the Tribunal accepts the applicant had help completing her visa application form, the applicant had also told the Tribunal she was aware of the contents of the forms when she signed them and did not wish to add anything to the information contained in the forms. The Tribunal considers the failure of the applicant to have mentioned these claims to have been beaten and robbed in her visa application forms, reflects poorly on the applicant’s credibility and the reliability of her evidence.

38. During the hearing the Tribunal also discussed with the applicant the Department of Foreign Affairs and Trade (DFAT) Country Information Report on Malaysia published on 19 July 2016. The Tribunal noted the report indicated that Malaysia had a well-established and extensive health care service that included nationwide public health care centres administered by the Ministry of Health. The report also indicates Chinese Malaysians constitute one of the largest overseas Chinese communities in the world and the second largest ethnic group in Malaysia. Chinese Malaysians make up a high percentage of the professional and educated class, and dominate business and the commerce sector. Chinese Malaysians freely participate in political life, and have Ministers in the current cabinet. The report also notes there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians. The Tribunal also noted the DFAT report indicates Buddhists represent 19.8% of the total population, and that DFAT assesses that Buddhists are normally able to practice their religion without interference and do not face official or societal discrimination on a day-to-day basis. The report also refers to credible local and international sources, which consider the Royal Malaysia Police to be a professional and effective police force.

1. In response the applicant told the Tribunal that the political situation in Malaysia was not good. On further questioning the applicant explained that she meant the political situation is the same as the security situation and that there is a robbery and fights and financial issues in Malaysia.

2. The Tribunal notes the DFAT report states the report is based on DFAT’s on-the-ground knowledge and discussions with a range of sources in Malaysia, including the government of Malaysia, civil society, religious and community groups and professional organisations, and takes into account relevant credible open source reports including publications from the Office of the High Commissioner of Human Rights, the UN High Commissioner for Refugees, the UN Development Program, UNICEF, the World Health Organisation, the World Bank, the OECD, Transparency International, Human Rights Watch, Amnesty International, and the United States State Department. The Tribunal considers the DFAT report is an authoritative source in relation to the situation in Malaysia. While the Tribunal notes country information, including the DFAT report, indicates there is some level of tension between the indigenous Muslim Malays and the Malaysians of Chinese origin, and there have been some isolated acts of violence, and that ethnic Chinese may face low levels of discrimination attempting to gain entry into state tertiary systems or the civil service, and that police officers wages are low and corruption has been identified as a concern, the country information before the Tribunal does not support the applicants’ claims that politicians would refuse the applicant access to health services or other government health services or assistance without the applicant changing her religion to Muslim, or that the police would refuse to assist the applicant due to her race or religion. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of her evidence.

3. For the reasons given above, the Tribunal finds the applicant is not a witness of truth, and the Tribunal is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of her claims.

   Refugee criterion: s.36(2)(a)

4. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

5. As noted above the Tribunal finds the applicant is not a witness of truth, and it is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of his claims.

6. While the Tribunal accepts the applicant’s father may have suffered a [medical condition] and required medical services, given the credibility concerns noted above, the Tribunal does not accept the applicant approached a politician and was refused help and assistance because the applicant refused to join their party or sign a piece of paper and change her religion. The Tribunal does not accept the applicant borrowed money from a moneylender at a high interest rate and was then threatened when she failed to repay the money. The Tribunal does not accept the applicant left her family home and lived in Kuala Lumpur with relatives for one month prior to leaving Malaysia in order to avoid the moneylenders. The Tribunal does not accept the moneylenders painted on the applicant’s parents’ home after the applicant left Malaysia. The Tribunal does not accept the applicant’s parents have moved out of the family home and are currently living rental accommodation in order to avoid the moneylender. The Tribunal does not accept the applicant has been beaten and robbed in the past, or had her mirror taken from her car. The Tribunal does not accept the applicant has been refused government services, including services provided by the Royal Malaysia Police, in the past.

7. The Tribunal does not accept the applicant was of any adverse interest to anybody prior to leaving Malaysia, or that she has become so since arriving in Australia. The Tribunal does not accept the applicant was in fear of harm when she left Malaysia. The Tribunal does not accept the applicant fears harm if she was to return to Malaysia.

8. The Tribunal does not accept there is a real chance the applicant will be mistreated, or harmed, or pressured to join a political party or change her religion, if she returned to Malaysia now in the reasonably foreseeable future.

9. On the evidence before it, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm, or harm of any kind, for any of the reasons she has claimed, or for any other reason, if she returned to Malaysia now or in the reasonably foreseeable future.

10. Therefore the Tribunal does not accept there is a real chance the applicant will be persecuted if she returned to Malaysia.

11. The Tribunal finds that the applicant does not have a well-founded fear of persecution, and is not a refugee as defined in s.5H of the Act.  

12. Having considered the claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection criterion: s.36(2)(aa)

13. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criteria for the grant of a protection visa pursuant to the complementary protection criteria.

14. For the reasons given above, the Tribunal finds the applicant is not a witness of truth, and it is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of her claims.

15. On the evidence before it, the Tribunal does not accept the applicant approached a politician and was refused help and assistance because the applicant refused to join their party or to sign a piece of paper and change her religion. The Tribunal does not accept the applicant borrowed money from a moneylender at a high interest rate and was then threatened when she failed to repay the money. The Tribunal does not accept the applicant left her family home and lived in Kuala Lumpur with relatives for one month prior to leaving Malaysia in order to avoid the moneylenders. The Tribunal does not accept the moneylenders painted on the applicant’s parents’ home after the applicant left Malaysia. The Tribunal does not accept the applicant’s parents have moved out of the family home and are currently living rental accommodation in order to avoid the moneylender. The Tribunal does not accept the applicant has been beaten and robbed in the past, or had her mirror taken from her car. The Tribunal does not accept the applicant has been refused government services, including services provided by the Royal Malaysia Police, in the past.

16. The Tribunal does not accept the applicant was of any adverse interest to anybody prior to leaving Malaysia, or that she has become so since arriving in Australia. The Tribunal does not accept the applicant was in fear of harm when she left Malaysia. The Tribunal does not accept the applicant fears harm if she was to return to Malaysia.

17. The Tribunal does not accept there is a real risk the applicant will be mistreated, or harmed, or pressured to join a political party or change her religion, if she returned to Malaysia.

18. On the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm, or harm of any kind, for any of the reasons she has claimed, or for any other reason, if returned to Malaysia.

19. On the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of her life; or the death penalty will be carried out on her, or that she will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if returned to Malaysia.

20. On the evidence before it, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.

21. Having considered the claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    CONCLUSION

22. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

23. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Chris Thwaites
    Member  8 August 2016

    
    

    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.

    …