1603697 (Refugee)

[2018] AATA 4261

1603697 (Refugee) [2018] AATA 4261 (29 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603697

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Shahyar Roushan

DATE:29 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 August 2018 at 3:34pm

CATCHWORDS

REFUGEE – protection visa – Lebanon – imputed political opinion – refusal to join Hezbollah – forced recruitment – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 438, 499

Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a [Shi'a] Muslim and a national of Lebanon. He first travelled to Australia on a [temporary] visa on 20 October 2007 and remained in Australia for three months. He was granted a second [temporary] visa and arrived in Australia on 18 February 2010. He has remained in Australia since then. He lodged an application for protection on 2 September 2015.

   Protection visa application

3. In a statement provided in support of his protection visa application, the applicant made the following claims:

4. He comes from a Shi’a family. His family moved to [Town 1] from Beirut five years ago.

5. He has no interest in joining any political party or militia group. He was pressured to join Hezbollah. They wanted to recruit him ‘by any possible way’ and they told him that he ‘must’ join the organisation because he is a Shi'a.  They also wanted to recruit him because, like all young Lebanese males, he has completed his compulsory military service and they would not have to ‘spend much time and effort to train him’.

6. He was ‘chased’ by the ‘recruitment elements’ of Hezbollah as he travelled between Beirut and [Town 1]. He suspects he was under constant surveillance as they were able to stop him at different times and places. He was told from time to time he will never be able to escape and that he will be found wherever he goes.

7. He was offered money, job opportunities and many things but he resisted as he did not want to be killed or kill anyone.

8. Hezbollah is very powerful and has many resources at its disposal. They control southern Lebanon and can operate in any other part of the country. He feared Hezbollah may ask him to give them information about the Lebanese army or to operate against the army.

9. He visited his sister in Australia in 2007/2008 to escape the pressure from Hezbollah. As soon as he returned to Lebanon, people from Hezbollah began to chase him again and told him that he must join the group.

10. As traditional Shi’as, his family also applied pressure on him and he found it more difficult to deal with this pressure than the pressure applied to him by strangers.

11. He returned to Australia in February 2010. During his visit, he was informed that Hezbollah was chasing his younger brother and in 2011 he escaped to [another country]. However, his brother returned to Lebanon and soon after he was ‘brain washed’ to join Hezbollah and was sent to a training camp.

12. In support of his application for a protection visa, the applicant submitted a copy of his marriage certificate, dated [2011], and a letter from [a psychologist], stating that the applicant’s wife has depression and anxiety.

13. The applicant attended an interview with the delegate of the Minister on 22 February 2016. Where relevant, his evidence to the delegate is referred to below.   

14. The delegate refused the application on 3 March 2016. On the basis of the country information before him, the delegate did not accept the applicant’s claims that he would be forcibly recruited by Hezbollah. The delegate also referred to the applicant’s significant delay in lodging his application for a protection visa and an indication that he does not have a genuine fear of harm in Lebanon.

    Review application

15. The applicant applied for a review of the delegate’s decision on 18 March 2016.

16. On 21 August 2018, [Ms A], [representing a law firm], provided a submission to the Tribunal on behalf of the applicant. She stated that the applicant had sought the assistance of a migration agent to guide him in relation to his visa options. The applicant had explained to the agent the potential risk of him being detained by Hezbollah, as the militia group was preparing Shi'a men to form their own army. The applicant was under the erroneous impression that the agent had lodged a protection visa application on his behalf.

17. It was submitted that Hezbollah is considered a terrorist organisation and the applicant did not exaggerate their power. They target young Shi'a men to join them as they need fighters. In their fight to protect Iran and now Syria, they pursued Shi’as who refused to join them. Not all soldiers join voluntarily. It was submitted that ‘recent information’ from Abu Dubai Sky news (Arabia) indicated that members who do not follow the Hezbollah regime suffer brutal punishment in jails that belong to Hezbollah. One soldier reported his experiences to the media after escaping. The applicant has no reason to exaggerate his claims because he is married to an Australia citizen and his wife can sponsor him.

    The hearing

18. The applicant appeared before the Tribunal on 22 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal also took evidence from the applicant’s wife, [Ms B], and his brother-in-law, [Mr C].

    The certificate

19. The Department of Immigration’s (the Department) file relating to the applicant’s protection visa application contained a s.438(1)(a) certificate in respect of certain documents on that file. It is appropriate to address the validity of the s.438(1)(a) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in specified folios within the Department’s file would be contrary to the public interest, must be capable of forming ‘the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence’.

    The folios subject to the s.438(1)(a) certificate consisted of the Department’s records relating to a standard Application and Identification Test Details form, confirming the applicant had provided personal identifiers to the Department; and an internal Disclosure Decision Checklist. The only reason stated in the s.438(1)(a) certificate was that the information contained in the folios was related ‘to an internal working document and business affairs’. The Tribunal is not satisfied that this reason provides a sufficient basis for public interest immunity. The Tribunal finds the certificate to be invalid and it has proceeded to treat the documents in the usual way as if there was no certificate.

    CRITERIA FOR A PROTECTION VISA

20. 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.

21. 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.

22. 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).

23. 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.  

24. 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

25. 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

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

27. The applicant essentially claims that he was pressured by Hezbollah to join its ranks and that he is fearful of returning to Lebanon because he does not wish to be forcefully recruited by Hezbollah.

28. In the statement provided in support of his application for a protection visa, the applicant stated that he was monitored, ‘chased’ by the ‘recruitment elements’ of Hezbollah and told that he must join the party. He was also told that he would be unable to escape.

29. In his interview with the delegate, the applicant claimed that he would be pressured to join Hezbollah. He stated his brother was also pressured and brainwashed and eventually joined the group.

30. At the hearing, the applicant stated that Hezbollah wanted him to join the party, but he refused. He was first approached in 2006 in [Town 1], where he resided with his parents, and these approaches continued until he came to Australia in 2010. He stated that those who approached him were his friends and they told him that he had to join. He travelled to and stayed in Beirut, [every] now and then in order to avoid them.  

31. It was put to the applicant at the hearing that in the four years prior to his second trip to Australia in 2010 he had experienced no serious harm as a result of refusing to join Hezbollah. The applicant responded that he tried to avoid them by going to Beirut, but Hezbollah were able to recruit his younger brother. When it was put to him that, according to his evidence, it appeared that his brother had joined voluntarily, he said they gave him incentives and also frightened him. The applicant stated that he is now worried that Hezbollah would recruit his older [brother]. He explained that [his older brother] had previously resided [overseas], but returned to Lebanon last year and has been residing with his parents in [Town 1]. When it was put to him that it did not appear that his older brother has been recruited against his will, he stated that this could still happen. The applicant claimed for the first time that his family had opened a shop in [Town 1] in 2006, but Hezbollah told people not to buy anything from the shop. His parents had to eventually close the shop in 2008. The applicant claimed that Hezbollah had put this pressure on his family because he had refused to join them.

32. Under s.424AA of the Act, the Tribunal put to the applicant that he had not disclosed the above information to the delegate at his interview, nor did he mention this claim in his application for a protection visa. The applicant responded that he had forgotten to mention this information. The Tribunal does not accept this explanation as satisfactory. If the applicant’s parents had been forced to shut down their business as a result of a boycott instigated by Hezbollah in response to the applicant’s refusal to join the group, he would not have failed to disclose this potentially important claim in his application for a protection visa or at the interview. The Tribunal is of the view that this claim is improvised and was only introduced at the hearing by the applicant in order to strengthen his claims for protection. The Tribunal does not accept this claim.

33. As it was put to the applicant at the hearing, the country information before the Tribunal does not support the view that Hezbollah forcibly recruits members. In November 2013, the Immigration and Refugee Board of Canada (IRB), referring to a number of sources, reported that membership of Hezbollah is based on allegiance to the organisation's ideological program. Following the 2006 war, Hezbollah conducted its largest recruitment and training drive, ‘swelling its ranks with dedicated cadres and reviving its former multi-sectarian reservist units’. Citing Nicholas Blanford, the report stated that there is no compulsion to join Hezbollah. The party seeks only those who are unreservedly committed to its ideology. Recruits who remain unconvinced after weeks of educational courses are free to leave. Another source cited in the report, the President of the Lebanese Centre for Human Rights, indicated that recruitment by Hezbollah is based on ‘voluntariness’ and that the Centre was unaware of instances of ‘forced recruitment’. Another source, the Director of the Stein Program, indicated that it would be ‘a rare occurrence’ for Hezbollah to forcefully recruit someone. Sources cited by the report, however, also indicated that social pressure can be applied within Shi'a families to individuals not prepared to join the party.[1]

    [1] Immigration and Refugee Board of Canada, Lebanon: Recruitment practices of Hezbollah, including instances of forced recruitment; consequences for those that refuse to join and their family members, including instances of torture; state protection (2010-October 2013), 4 November 2013, LBN104638.E < >

    Referring to two sources, a professor of political science in New Zealand and a professor of politics at Florida Atlantic University, the IRB reported in 2015 that ‘Hezbollah does not ‘forcibly’ recruit its members’. The report also states that ‘Hezbollah has not engaged in forced recruitment since 2013, despite their loss of manpower due to casualties in the Syrian conflict’, and that ‘forcing individuals to join Hezbollah is not part of the organization's recruitment strategy’.  Rather, Hezbollah employs ‘a system of ‘enticements’ when conducting membership drives within Lebanon's Shi'a community’. The report also quotes another source, a professor of international history at the London School of Economics and Political Science, stating ‘that there is anecdotal evidence that Hezbollah has started forcibly recruiting since it has become more involved in the Syrian conflict’.  According to this source, ‘forced recruitment occurs mainly in rural areas where Hezbollah has strong influence such as southern Lebanon and the Beqaa valley’. The source also indicated that ‘there are ‘talks of disappearances’ of those individuals who refuse to join Hezbollah but that to the source's knowledge, no reports have arisen in which family members of said individuals have been subject to harassment’.[2]

    [2] Immigration and Refugee Board of Canada, Lebanon: Recruitment practices of Hezbollah, including forced recruitment, such as Shi'ite youth; consequences for those that refuse to join; availability of state protection; regions controlled by Hezbollah, including ability to locate a person wanted by the group who returns to Lebanon; presence of Hezbollah spies or informers in areas outside the organization's control; whether Lebanese Shi'ite students returning from international study are considered spies upon returning to the country (2013- October 2015)’, 29 October 2015, <>

    A May 2015 article by Now also reported that Hezbollah has been desperately recruiting in the Bekaa valley; however, the article notes that ‘Hezbollah realizes its ideology is not a substantial enough motivator to keep up its rank and file’ and that ‘paying fighters is essential’.[3] Associated Press reported on 18 December 2015 that Hezbollah has been conducting a large recruitment campaign drawing mainly from Lebanon’s Shi’a community. According to the article, the group has found ‘no shortage of volunteers’ given that the Shi’a community has ‘rallied around Hezbollah even more than in the past, seeing it as the community's protector amid a wave of bombings and suicide attacks by Sunni radicals against mainly Shiite areas in Lebanon since 2013’.[4] The report noted that ‘Hezbollah offers benefits that also motivate volunteers’ and that the ‘children of fighters get free education until they graduate from university’. In addition ‘if a fighter is killed, his family continues to receive a stipend; if he is wounded, he is treated for free in the group's hospitals’.[5]

    [3] ‘Hezbollah's desperate recruiting in the Bekaa’, Now, 08 May 2015, <

    [4] ‘Hezbollah recruiting push comes amid deeper role in Syria’, Associated Press (AP), 18 December 2015, CXBD6A0DE17490, < ibid

34. In response to the information put to him, the applicant stated that not everything is reported by media. Hezbollah applies pressure to those who speak openly to change their stories. Hezbollah has a shortage of recruits at present due to the causalities they suffered in Syria and they are looking for uneducated and unskilled people to recruit. Hezbollah does not threaten people openly but they apply pressure.

35. Indeed, other than the reference to one source by the IRB, pointing to ‘anecdotal evidence’ that Hezbollah has started forcibly recruiting since it has become more involved in the Syrian conflict, information from all other sources has consistently indicated that Hezbollah does not engage in forcible recruitment of members and fighters. The Tribunal has found no other persuasive evidence anywhere else, including in DFAT reports, other major foreign government reports and Lebanese and international news media, to indicate that Hezbollah has engaged in forcibly recruiting members or fighters. In her submission of 21 August 2018, [Ms A], referred to ‘recent information’ from Abu Dubai Sky news (Arabia) indicating that members who do not follow Hezbollah are imprisoned. Whilst she stated that she was in the process of translating the article, the Tribunal did not receive a copy or a translation of the report. Having carefully considered the information before it, the Tribunal does not accept that Hezbollah is engaged in forceful recruitment of members and fighters, regardless of whether or not they have completed their compulsory military service with the Lebanese army. Nor does the Tribunal accept that those who refuse to join Hezbollah’s ranks face punishment as claimed.

1. The Tribunal has considered the evidence of the applicant’s wife and his brother-in-law at the hearing. [Ms B] stated that the applicant cannot go back to Lebanon and the conditions on his bridging visa do not permit him to work or study. This has put pressure on their relationship. If it was safe for the applicant to return to Lebanon, he could have returned to Lebanon to await the outcome of their spouse visa application. 

2. [Mr C] stated that he first met the applicant 15 years ago when he travelled to Lebanon to marry his sister. At that time, Hezbollah did not enjoy much support, but the situation has now changed. He is under a lot of stress and he would not have put himself in this situation if he was not ‘genuine’. If one is not with Hezbollah, he or she would be considered to be against Hezbollah.

3. The Tribunal is prepared to accept that the applicant was placed under some pressure, which also included the offer of financial incentives, by Hezbollah to join its ranks. This is consistent with the country information referred to above. However, despite his persistent refusal, he did not experience any harm, let alone serious harm, between 2006 and 2010. The applicant also told the Tribunal that he was able to avoid the pressure by residing with his sister in Beirut from time to time. The country information before the Tribunal does not support the applicant’s contention that he was under constant surveillance by Hezbollah only to be stopped from time to time to be asked to join the organisation. Whilst the applicant claimed that his younger brother had joined Hezbollah because he had been ‘brainwashed’, there was no persuasive evidence before the Tribunal to indicate that his younger brother had been forced to join Hezbollah or that his decision to join the organisation had been anything other than a voluntary one. Furthermore, the applicant’s evidence also indicated that his older brother returned to Lebanon from [overseas] last year and has been residing with his parents in [Town 1] ever since. Despite being in regular contact with his family, the applicant did not claim that his older brother has been approached, recruited or harmed by Hezbollah.

4. Therefore, on the basis of the evidence before it, the Tribunal does not accept that Hezbollah had made any attempts to forcefully recruit the applicant. The Tribunal does not accept that the pressure the applicant was subjected to, including the offer of incentives, by friends, family or other Hezbollah members, to join the group, individually or accumulatively, amounts to serious harm. The applicant has no political profile and has not claimed to have expressed any views in opposition to Hezbollah other than his claimed refusal to join the organisation. The Tribunal does not accept that Hezbollah has any ongoing interest in the applicant either to recruit him or retaliate against his claimed persistent refusal to join the organisation. The Tribunal does not accept that the applicant will be forcibly recruited by Hezbollah as a member or a fighter. The Tribunal does not accept that there is a real chance or a real risk that he will be forced to join the organisation. Whilst he may still be approached and asked to join the organisation, the Tribunal does not accept that there is a real chance or a real risk that he will be subjected to serious or significant harm by Hezbollah if he continues to express his unwillingness to join the group. The Tribunal does not accept that there is a real chance or a real risk that he will be subjected to serious or significant harm by Hezbollah or anyone else for the reason of, or reasons arising from, his imputed political opinion, religion or membership of any particular social group.

5. The Tribunal accepts that the applicant and [Ms B], an Australian citizen, are married. The Tribunal accepts that [Ms B] suffers from depression and anxiety. The Tribunal very much appreciates that the applicant’s unresolved immigration status has been taxing on her and their relationship. The Tribunal, however, is satisfied that [Ms B] and the applicant’s circumstances in Australia do not engage Australia’s protection obligations under the Refugees Convention or under s.36(2)(aa) in respect of the applicant.

6. After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal does not accept that he has been seriously harmed in the past or that, if he were to return to Lebanon now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

7. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

8. 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 criteria in s.36(2).

   DECISION

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

   Shahyar Roushan
   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.

   …