1605423 (Refugee)

[2017] AATA 3062

1605423 (Refugee) [2017] AATA 3062 (1 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605423

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Penelope Hunter

DATE:1 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2017 at 11:34am

CATCHWORDS

Refugee – Protection Visa – Malaysia – Ethnicity – Chinese Malay – Fear of criminal groups – Loan sharks – Racial discrimination – Witness credibility – Inconsistent and implausible evidence – Economic reasons for departing home country – Lack of genuine fear of harm

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 438(1)(a), 499

Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2016 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] December 2015.

3. The applicant appeared before the Tribunal [in] February 2017, to give evidence and present arguments. The hearing was conducted with an interpreter in the English and Mandarin languages.

4. On the basis of the evidence before it and for the cumulative reasons given below, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision. 

   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 – 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.

    Material under a public interest non-disclosure certificate

11. The Department file contains a public interest non-disclosure certificate in respect of s.438(1)(a) related documents. The Tribunal considers that the certificate is not a valid certificate as the material relates solely to ‘internal working documents and business affairs’ No reason has been provided about why the disclosure of the documents would be contrary to the public interest. Furthermore, the Tribunal considers the material to not be relevant to its decision as it relates to the identity of the applicant which is not in dispute.

    Material under a public interest non-disclosure certificate

12. The Department file contains a public interest non-disclosure certificate in respect of s.438(1)(a) related documents. The Tribunal considers that the certificate is not a valid certificate as the material relates solely to ‘internal working documents and business affairs’ No reason has been provided about why the disclosure of the documents would be contrary to the public interest. Furthermore, the Tribunal considers the material to not be relevant to its decision as it relates to the identity of the applicant which is not in dispute.

    CLAIMS AND EVIDENCE

13. The applicant has set out his circumstances in his Protection visa application form submitted to the Department [in] December 2015.  He was born in Klang, Selangor, Malaysia on [birth date]. He is a citizen of Malaysia, he has never been a citizen of any other country. He is of Chinese ethnicity and has not advised of his religion. He is single, and parents, [and siblings], continue to reside in Malaysia. The applicant last arrived in Australia [in] November 2015 having been issued with a [temporary] visa, holding a Malaysian passport issued [in] 2015 and which expired [in] 2020. He has been educated to the age of [particular age] in Malaysia. He identified only one home address where he had lived in Malaysia in Klang, Selangor. He has worked in [a specified industry] from 2005 to 2010, first as a [Occupation 1] and then as a business owner.

14. In his application form the applicant set out briefly his claims for protection. The reason sets out the reason that he had to leave Malaysia as follows;

    “I had a business in Malaysia, but my business did not go well due to the racial discrimination against me. The Malay people did not give us the materials we needed for [the business]. We could not get enough funds for the normal operation of my business. I had no choice but to lend money from the loan sharks. However, the business did not continue and could change the discrimination by the Malay. The loan sharks then threatened to hurt me as we could no pay the debt on time with interest. My life is under threat so I had to escape Malaysia.”

15. The applicant feared he would be harmed by loan sharks if he returned to Malaysia.  He claimed that the last time he went back to Malaysia he was cornered by people sent by the loan shark and he was [beaten]. He went to the police but the police are all Malay people and they are racially against him and did nothing to protect him. The applicant claimed that he tried to move to another state in Malaysia but that the loan sharks can still find him. He claimed that when he was in Kuala Lumpur they had found him.

16. The documentation submitted in support of his claims to the Department comprised only of his identity documents. With his application for review to the Tribunal the applicant did not provide any additional submissions or documentation to support his claims.

17. At the Tribunal hearing the applicant confirmed that he understood the information contained in his Protection visa application forms. He advised that he had completed the forms with the assistance of a friend. He confirmed that all the information contained in his application was true and complete and that he did not wish to make any changes, corrections, additions or alterations to the information that he had supplied. Where relevant the Tribunal has set out the information provided by the applicant at the hearing below.

    DISCUSSION OF EVIDENCE, FINDINGS AND REASONS

18. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations.

    Nationality

19. The applicant claims to be a national of Malaysia. He has produced his passport, as proof of his identity. The Tribunal finds that the applicant is a citizen of Malaysia. As the Tribunal has found that the applicant is a national of Malaysia, the Tribunal also finds that Malaysia is the receiving country of the applicant for the purposes of s. 36(2)(aa).

    Credibility of Claims

20. In determining whether an applicant is entitled to Protection in Australia, the Tribunal must make findings of fact on the applicant’s claims. This involves and assessment of the applicant’s credibility and, in doing so, the Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility. The Tribunal is aware of the need and importance to be sensitive to the difficulties facing asylum seekers. However, the mere fact that a person claims fear of persecution or harm 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 reasons 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 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 details as necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case of him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

21. The Tribunal is not satisfied on the material before it that the claims of the applicant are credible. It is not satisfied that the applicant has been truthful about the reasons he departed Malaysia or his previous experiences in his home country. The Tribunal encountered several difficulties in assessing the claims of the applicant which led it to the finding that the applicant’s claims were not reliable and the reasons he claimed protection were not factual.

22. Firstly the applicant’s evidence to the Tribunal demonstrated that economic considerations were a significant motivation for the applicant’s visa application. This is because he told the Tribunal that he just hoped to get the visa so that he stay in Australia for a few more years and earn some money. When the applicant was challenged on this evidence he adjusted his evidence to claim that he had to pay the loan sharks before he could return. The Tribunal then put to him that it was his plan to return. The applicant shifted in his evidence again and said that maybe he would not return, instead he could just transfer the money to them. The shifting nature of the applicant’s evidence caused concern for the Tribunal as to whether he had a genuine fear of harm in Malaysia.

23. Secondly, the applicant gave evidence to the Tribunal about his education that was not consistent with his written claims. He claimed that he could not pursue his education and had to leave school at [a young age] as he was bullied and other Malay students would pick fights with him because he was Chinese. The Tribunal put to the applicant that this was inconsistent with the information contained in his visa application forms that he had completed high [school]. Although the applicant had confirmed at the commencement of the hearing the material contained in his application forms provided to the Department was all correct, he suggested that the reason for the inconsistency was that his friend had made a mistake when he filled out the forms. The Tribunal did not accept this explanation. The Tribunal had also asked the applicant about his family and he gave evidence that his siblings were able to attend school. The Tribunal considered that this further undermined the credibility of the applicant’s claims about his difficulty accessing education. Finally the Tribunal considers that country information does not support the claims of the applicant about his inability to access education. DFAT reports that Chinese Malaysians are free to participate in primary and secondary education, however it reported that admission decisions in state universities are heavily biased towards ethnic Malays. [1]  Overall the Tribunal did not accept that the claims of the applicant that he was unable to continue his education due to his Chinese ethnicity were reliable.

    [1] DFAT Country Information Report – Malaysia, 19 July 2016, at 3.8

24. Thirdly, the applicant’s evidence regarding his former employment in Malaysia was not consistent with his written claims. The applicant told the Tribunal that he worked [in Occupation 2] and he started doing this work in 2012, when he was [a particular age]. When asked what he did between leaving school at [a young age] and [beginning that particular occupation], the applicant was evasive. He told the Tribunal that he worked with friends and studied. Then he conceded that he did work for someone else and when asked to identify when he did this work the applicant said that sometimes he had work and sometimes he did not. The Tribunal persisted with questioning the applicant as to what he had done for 13 years and he ultimately responded that sometimes he [undertook Occupation 2] and sometimes he learned from friends [other] relevant knowledge. When asked to explain why the dates for his employment did not match up with the information in his protection application where he set out that he worked as a [Occupation 1] from 2005 to 2007 for a [business] and then from 2007 to 2010 he operated his own business, the applicant only responded that his claims were reliable. The Tribunal considered that the applicant has not satisfactorily explained this inconsistency, and this adds to the Tribunal’s concerns about the credibility of the applicant and the reliability of his claims.

25. Fourthly, the Tribunal viewed it as implausible that the applicant would borrow money on the terms that he described to the Tribunal and he was unable to satisfactorily explain to the Tribunal the reason for the loan. The applicant told the Tribunal that his business went smoothly for nearly a year but at the end of 2012, he had to borrow money. He told the Tribunal that he had borrowed [an amount of] ringgit which was to be paid back by instalments of [amount] per week for [a number of] weeks. When the Tribunal asked the applicant about the turnover of his business he was initially evasive, however under further questioning identified that he could earn [an amount of] ringgits gross or [an amount of] ringgits net per day. When asked what he needed the money for the applicant responded that it was for business turnover. The applicant confirmed that he did not employ any staff and his only business expenses were petrol for his car. On the basis of this evidence provided by the applicant the Tribunal was unable to ascertain what expenses the applicant had that he was required to borrow [the specified amount of] ringgits. Furthermore the terms of the loan he agreed to could not, on his evidence, reasonably be serviced by his business. In response to the concerns of the Tribunal the applicant proceeded to alter his evidence about his business and said that sometimes he had good clients that did not charge him to [access raw materials]. Even allowing for a few good clients the Tribunal did not accept it as plausible that the applicant would enter into such an arrangement when he would be unable to service the loan.

26. Fifthly, the applicant’s evidence to the Tribunal of events that transpired after he defaulted on the loan was also not consistent with his written claims. The applicant told the Tribunal that he managed to repay the [original amount] and not the interest. He also claimed that his last payment was late.  Due to his late payment he claimed that the loan shark beat him and he sustained [an injury] but that he did not require medical treatment. After this he fled from Malacca to Kuala Lumpur to stay with his family. He told the Tribunal that nothing further happened to between 2013 and 2015 when he departed Malaysia as he was in hiding. The applicant was then asked to explain why he had claimed in his application for protection that when he returned to Malaysia in 2015 from Australia they found him in Kuala Lumpur and kicked and beat him. The applicant told the Tribunal that he did not have any explanation for this inconsistency. The Tribunal also considered that the applicant’s description of his injuries from and earlier attack were not consistent with his written claims where he described being cornered and hit you with [a weapon] that he had scars on [a different part of his body]. The applicant attempted to show the Tribunal marks on [a particular part of his body] and claimed that he was telling the truth about being beaten by the loan sharks but that he just could not remember the specifics. The Tribunal considered that if the applicant was actually beaten as he claimed he would be able to remember the specifics of the incident and his inability to recall the matter reliably further undermined his credibility and that of his claims.

27. Sixthly, the Tribunal has several concerns about the applicant’s evidence that the loan sharks came looking for him in Kuala Lumpur. The applicant equivocated in his evidence to the Tribunal as to whether the loan sharks actually found him in Kuala Lumpur. He initially claimed that he heard that they had come looking for him from a friend. Later he said that they came to his home and asked about him but that they did not find him.  As the applicant returned to his family home in Kuala Lumpur and continued to reside there for several years before he came to Australia, the Tribunal is also not satisfied that he was actually in hiding. It is considered that if the loan sharks were determined to track down the applicant as he claimed then they would have located him in the several years he spent with his family before he departed for Australia. The fact that the applicant spent several years in Kuala Lumpur without incident after he defaulted on the debt payments, which was either from 2010 according to his written claims or 2013 according to his evidence to the Tribunal, demonstrates to the Tribunal that there was not a real risk of harm to the applicant from the loan sharks when he departed Malaysia.

1. Seventhly, the Tribunal did not consider the evidence of the applicant regarding his attempts to obtain police assistance to be reliable or consistent with country information. The applicant told the Tribunal that at the time of his initial loan default he reported his beating to the police but that they would not do anything to assist him as the loan sharks were Malay people. However the applicant agreed with the country information put to him by the Tribunal that moneylending was illegal in Malaysia.[2] The Tribunal discussed with the applicant country information that indicates that there is a lot of concern in Malaysia about loan sharks and that there are reports[3] of police launching operations against loan sharks and crime syndicates. The applicant acknowledged that this was correct that it was often reported in the newspapers however claimed that loan sharks were still operating. The Tribunal also discussed with the applicant material from DFAT regarding the police in Malaysia, and that it is reported by credible local and international sources that the police in Malaysia are an effective and professional force.[4] The report also does acknowledge that police response depends on their level of training and whether they have engaged in corrupt practices themselves. It is acknowledged that corruption is a concern and there have been systems put in place to look at and investigate the issue of police integrity. Overall the assessment of DFAT is that there is an effective police force in Malaysia who generally do investigate crimes. The Tribunal is not satisfied that the country information supports that the police would deny the applicant protection because he was not Malay or that they would encourage condone or tolerate the harm that he feared because he was ethnic Chinese.  

   [2] ‘KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February <

   [3] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May < <CXBD6A0DE13537>  , Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December < Accessed 30 August 2016 <CXC28129414704> 

   [4] Department of Foreign Affairs and Trade, Country Information Report – Malaysia, 19 July 2016, at 5.5

2. Overall, the multiple concerns about the evidence of the applicant when considered in totality, led to the conclusion that the applicant has given a true account of his circumstances and the reasons he fears harm in Malaysia. The Tribunal had concerns about every element of the applicant claims. This is because of the persistent inconsistency with the applicant’s evidence and his written claims, his admissions as to economic motivators for his travel, the implausibility of elements of his claims, the lack of supporting evidence or Country information. It is not satisfied that his claims are credible and the Tribunal finds that he travelled to Australia for economic reasons and not for any genuine fear of harm. 

3. The Tribunal does not accept that the applicant owned his own business, or that he borrowed money in business from loan sharks. The Tribunal does not accept that the applicant ever borrowed money from illegal money lenders, or that he defaulted in payment of his loan. It is not accepted that the applicant was ever threatened or beaten by money lenders or anyone else at any time.

4. It is also not accepted that the applicant ever complained to police about being threatened by loan sharks or that the police protected ethnic Malays and condoned their treatment of the applicant. It is not accepted that the applicant was unable to attend school, that he was ever beaten or unable to earn a livelihood because he was ethnic Chinese.

5. It is accepted that the applicant is an ethnic Chinese and the Tribunal has considered the general claims of the applicant in relation to racial prejudice and discrimination. The country information regarding the position for ethnic Chinese does not support that the applicant would be subjected to unfair treatment to the extent that he would experience serious or significant harm and be unable to return to his hometown.  The Tribunal put to the applicant that the Australian Department of Foreign Affairs and Trade (DFAT) reports that Chinese Malaysians are the second largest ethnic group in Malaysia and that there were no laws or constitutional provisions that directly discriminated against Chinese Malaysian.[5] That Chinese Malays made up a high proportion of the professional and educated class, dominate business and commerce sectors and have high relative wealth compared to other ethnic groups in Malaysia.[6] They were also free to participate in political life. It was acknowledged that there was comparatively fewer ethnic Chinese in the Malay civil service,[7] and that admission to university demonstrated a bias towards ethnic Malays.[8] Therefore some level of discrimination against ethnic Chinese in terms of accessing state tertiary education and the civil service, this is assessed as low level, and DFAT assesses that Chinese Malaysians generally do not experience discrimination or violence on a day to day basis.[9] When asked if he would like to comment on that information, the applicant was silent. The applicant spoke to the Tribunal about wanting to earn money, while it is accepted that he is likely to be paid less in Malaysia than he is able to earn in Australia, the Tribunal does not accept that he would not be able to obtain work to support himself. It is understood that rates of pay and employment conditions for various jobs in Malaysia differ from those in Australia, however, the Tribunal finds that any financial hardship the applicant may experience would not amount to serious or significant harm.

   [5] Department of Foreign Affairs and Trade, Country Information Report – Malaysia, 19 July 2016, at 3.4

   [6] As above at 3.5

   [7] As above at 3.7

   [8] As above at 3.8

   [9] Department of Foreign Affairs and Trade, Country Information Report – Malaysia, 19 July 2016, at  3.10

6. The Tribunal does not accept that the applicant would be denied employment, accommodation or access to basic services because of his Chinese ethnicity upon return to Malaysia or for any other refugee criterion reason.

7. It is not accept that the applicant has a profile that would be of interest to anyone in Malaysia were he to return.

8. The Tribunal does not accept that he will be harmed for reasons of his ethnicity, or his membership of a particular social group of having borrowed from loan sharks or illegal money lenders, upon his return to Malaysia. The Tribunal does not accept that the applicant has a well-founded fear of persecution for any refugee criterion reason. The Tribunal does not accept that the applicant is a refugee.

9. The Tribunal has also considered whether Australia has protection obligations towards the applicant under the complementary protection criteria. As stated above the Tribunal is not satisfied that the applicant has given a credible account of his circumstances in Malaysia. It does not accept that he was fleeing harm from loan sharks, or that he was denied an education or that police did not provide him with any assistance. The Tribunal is also not satisfied having considered the circumstances of the applicant and the country information that he experienced significant harm due to his Chinese ethnicity or that he is of any interest to loan sharks for the reasons he has claimed. It is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk he will suffer significant harm for the reasons he has claimed.

10. The Tribunal is also not satisfied that the applicant will face a real risk of suffering significant harm for any other reason.

    Conclusion

11. 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).

12. 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 that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

13. 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

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

    Penelope Hunter
    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.

    …