1606516 (Refugee)

[2017] AATA 2936

1606516 (Refugee) [2017] AATA 2936 (15 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606516

COUNTRY OF REFERENCE:                  Egypt

MEMBER:Linda Symons

DATE:15 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2017 at 9:47am

CATCHWORDS

Refugee – Protection visa – Egypt – Religion – Christian – Fears harm from Muslims – Conversion to Christianity – Limited evidence – Medical issues

LEGISLATION

Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and 36(2B), 65, 499

Migration Regulations 1994, 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 [in] April 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 Egypt, arrived in Australia [in] May 2015 as the holder of a [temporary] visa that was valid for [a few] months. [In] June 2015, she applied to the Department of Immigration and Border Protection (the Department) for a Protection visa. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 13 May 2016, she applied to the Tribunal for review of that decision.

3. The applicant appeared before the Tribunal on 11 August 2017 to give evidence and present arguments. The Tribunal also heard evidence from her [daughter]. She was assisted by an interpreter in the Arabic and English languages. 

4. The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

11. The applicant’s claims in her application for a Protection visa are summarised as follows:

    ·Her son was romantically involved with the Muslim woman named [Ms A]. [Ms A] used to help her and she taught her about Christ.

    ·She and her son had problems and threats from [Ms A]’s family and a Sheik named [Mr B]. [Mr B] took her son to the Police Station where he was interrogated.

    ·[Ms A] converted to Christianity. A priest was going to marry her and her son secretly. He took [Ms A] into hiding until he could arrange for her to leave the country. After [Ms A] went with the priest, her son was attacked by a group of Muslim men, was injured and needed medical attention.

    ·The group of Muslim men went to her home and threatened to kill her and her son if they did not return [Ms A]. Her son became sick. She thinks he was attacked again. He died a few weeks later. Her [family members] tried to have his death investigated by the Police but they would not conduct an investigation. Her daughter was told by her [relatives] that they were forced to leave the matter.

    ·One week after her son’s death, two men forced their way into her house and threatened to kill her if [Ms A] did not return.

    ·She did not seek help from the Police as she was afraid because the Police had already interrogated her son.

    ·She did not try to relocate to another part of Egypt as she is old, has mobility issues and cannot move by herself. [Ms A]’s family and Muslim fanatics will find her if she relocates elsewhere. They have already threatened her [family member]’s family.

    ·She fears that if she returns to Egypt Muslim fanatics will keep threatening her until [Ms A] returns and she will be killed like her son was.

12. The applicant has provided to the Department a copy of her Egyptian passport. She also provided to the Department a Medical Report dated [in] August 2015 which stated in part:

    [The applicant] has been my patient since June 2015. She suffer from [A medical condition] while she was living in Egypt and affected her [functions], she need care on a daily basis, she using [an aid] for mobility. [The applicant] is a widow and has son who passed away recently following an illness back in Egypt. (sic)

13. The applicant’s migration agent wrote to the Department [in] March 2015 and stated in part the following:

    From my experience with the applicant, it will be very difficult for her to complete a   full interview. [Details deleted]

14. In view of the above, the delegate did not invite the applicant to attend an interview.

15. The applicant has provided to the Tribunal a copy of the Department’s Decision Record dated [in] April 2016. She also provided to the Tribunal a document from [a] Hospital written in what appears to be Arabic (without an English translation) and a letter dated [in] July 2017 from her General [Practitioner], which states as follows:

    [The applicant] (dob [date]) NESB who suffers [medical conditions] since she had [a medical event] few years ago, affecting her DLA to live independent in the community.  

16. At the end of the hearing, the Tribunal informed the applicant that the supporting evidence before the Tribunal was woefully inadequate. The applicant’s daughter, on behalf of the applicant, requested and was granted additional time to provide further evidence. Following the hearing, the Tribunal received three letters from [a specialist], dated [in] August 2016, [in] August 2016 and [in] March 2017, the last of which indicates that “[condition wise] she appears stable.” The Tribunal also received a [specialist] Report from [the same specialist] dated [in] August 2016, a referral from the applicant’s General Practitioner ([dated] [in] September 2017, a Report from [another Doctor] in relation to a [certain] x-ray dated [in] July 2017 and a Report from [another specialist], dated [in] August 2017.  

17. The Report from [the specialist], states in part the following:

    [Details of medical report deleted]

    [Details of medical report deleted}

Does Australia have protection obligations to the applicant under the refugee criterion?    

1. The Tribunal finds that the applicant is a citizen of Egypt based on her passport which is before the Tribunal and will assess her claims on this basis. The Tribunal finds that she is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.

2. During the hearing, the Tribunal attempted to discuss with the applicant her written claims. She stated that she became sick several years ago whilst living in Egypt. She stated that no one looked after her when she became sick and she looked after herself. She stated that her son has passed away but she could not recall when he died or the cause of his death. She stated that he was not sick before he passed away. When asked why she came to Australia, she stated that her [siblings] sent her to Australia. When asked whether that was the only reason she came to Australia, she answered yes. She stated that she does not have any concerns about returning to live in Egypt and there is no problem about going back.

3. The Tribunal asked the applicant who would look after her if she returned to Egypt and she responded “God”. When asked if there was anyone else who could look after her in Egypt, she responded that she is not going back to Egypt. When asked why she does not want to return to Egypt, she responded that she does not want to go back. When asked if there was any other reason why she does not want to return to Egypt, she responded that there was not. When asked if she could live with a sibling in Egypt, she responded that she is not going back to Egypt. When asked if she could live with a sibling if she had to return to Egypt, she responded no. When asked where she would live if she returned to Egypt, she requested that she be allowed to stay in Australia. When asked if she had any problems in Egypt, she answered no. When asked whether her son had any problems in Egypt, she answered no. When asked the cause of her son’s death, she responded that she did not know.

4. The applicant’s daughter gave evidence to the Tribunal her father passed away in 1999. She stated that her mother thereafter received a [social benefit]. She stated that her mother lived in rented premises with her [sibling]. She stated that her mother suffered a [medical event] in 2011. She stated that after this [medical event] her [Relative 1] helped to looked after her. She stated that a nurse would also check up on her mother every two days. She stated that the situation became progressively worse. She stated that her mother has had a few more [medical events] since then. She stated that her mother has a number of health issues including [various medical conditions]. She stated that her mother was prescribed medication for [one particular medical condition] in Egypt but was not taking it. She stated that in 2011 her mother was able to [do a particular thing] but is no longer able to do so. She stated that her mother is now [details deleted].

5. The applicant’s daughter gave evidence that after her mother had her first [medical event] in 2011 she went to Egypt and stayed with her for one month and one week. She stated that after she returned to Australia she maintained regular telephone contact with her mother and [sibling]. She stated that her conversations with her mother were brief and mainly related to her health. She stated that after her [sibling]’s death [in] January 2015, her [relatives] look after her mother for four months until she came to Australia. She stated that her [Relative 1] passed away after her mother came to Australia and her [relative] is now working in [another country]. The Tribunal has not been provided with a Death Certificate in relation to her [Relative 1].  

6. The applicant’s daughter gave evidence that her mother had [siblings]. She stated that [some of them] have now passed away. She stated that her mother does not have a good relationship with her [other siblings] and does not speak to them. She stated that they did not even visit her when she had a [medical event] and do not care about her. She stated that as her mother does not have any money they are not interested in her.

7. The applicant’s daughter gave evidence that she had a telephone conversation with her [sibling] in about November 2014. She stated that during that conversation he told her that he liked [a person] called [Ms A] who was caring for their mother but she was a Muslim. She stated that she told him that it was up to him but he could get into trouble and he responded that they would see what they could do. She stated that he told her that [Ms A] had converted to Christianity and was baptised but that the priest did not issue a Baptism Certificate because it could cause trouble. When asked whether [Ms A] continued to care for her mother after she was baptised, she responded that she did not know. She stated that when she asked her brother whether [Ms A] was still looking after their mother he became angry and said “what do you want from [Ms A]?” She stated that her brother never told her what was going on. She stated that she has spoken to [Ms A] on the telephone. She stated that she spoke to her about her mother, asked her whether she wanted to become a Christian and, when she answered yes, suggested that she speak to the priest.

8. The applicant’s daughter gave evidence that her [relatives] told her that “some kids” [hurt] her brother in the side and that they were members of [an organisation]. She stated that he was taken to hospital. She stated that she received a telephone call from her [relative] informing her of what had happened. She stated that the wound became infected and her brother passed away [number of] days later. The Tribunal has been given a document which appears to be in Arabic with the following English words “[a] Hospital – [name]”. No English translation has been provided to the Tribunal. When asked about this document, she stated that the hospital did not write down the cause of death.

9. The applicant’s daughter gave evidence that, after her brother’s death, her [relative] told her that prior to his death her brother had been threatened by some people. When asked if she knew what he was threatened about, she stated that she was told that he and [Ms A] used to go out with a group of friends. She stated that she was told that [Ms A] was prepared to convert to Christianity. She stated that she was told that their friends were aware of this, one of them told her family and the problems started after this. She stated that she was told that the priest was going to take [Ms A] to a monastery and then help her brother and [Ms A] to leave the country but the incident happened before they could leave the country. She stated that she was told that her brother had been threatened by some people who said “where is [Ms A]? If you don’t bring [Ms A] you know what is going to happen to you”. 

10. The applicant’s daughter gave evidence that, after her brother’s death, her [relative] told her that after he was threatened her brother had consulted a solicitor and was advised not to do anything. She stated that her brother was subsequently [attacked]. When asked whether her brother’s death was reported to the Police, she answered yes. She stated that when her [relatives] told the Police her brother had been killed they asked for evidence from the hospital. She stated that she is not sure what the hospital papers said in relation to the cause of death. She stated that her [relatives] then spoke to the solicitor that her brother had previously consulted and was told that if the Police could not do anything he could not do anything.

11. The applicant’s daughter gave evidence that some young men had gone to her mother’s house and told her “we have to get [Ms A]”. When asked how she knows this, she responded that her mother told her that some people had asked her about [Ms A], scared her and hit her.” This is different to what was claimed in the visa application. When asked whether her mother or anyone else on her behalf had reported this to the Police, she responded no.  

12. The applicant’s daughter gave evidence that the information provided to the migration agent for the preparation of the application for a Protection visa was provided partly by her and partly by her mother.

13. The evidence given by the applicant’s daughter is significantly different to the evidence given by the applicant. If the Tribunal were to accept the evidence given by the applicant, it may find that she is not a person in respect of whom Australia has protection obligations and that the claims in her application for a Protection visa and her daughter’s evidence were fabricated for the purpose of obtaining a Protection visa. However, in view of the medical evidence referred to above, the written submission from the applicant’s migration agent to the Department (referred to in paragraph 13 above), the evidence from the applicant’s daughter in relation to her mother’s memory and the Tribunal’s own observations of the applicant at the hearing, the Tribunal is not satisfied that she was able to give evidence and participate in the hearing in a meaningful way. The Tribunal is of the view that information or evidence provided by the applicant is unreliable and the Tribunal cannot place any weight on it. The Tribunal therefore has to rely on other sources of evidence to assess whether her claims have been made out.

14. The applicant’s daughter’s evidence to the Tribunal was, for the most part, third hand. She has very limited personal knowledge of what occurred in Egypt. She gave evidence that her telephone conversations with her mother, when she was in Egypt, were brief and mostly related to her health. She also stated that her brother never told her what was going on. She stated that about a month after his death she spoke to some [relatives] to try and find out what happened. It is of concern to the Tribunal that, although the applicant was represented by a migration agent, very little appears to have been done to prepare and present her case to the Tribunal. The Tribunal wrote to her migration agent, [on] 10 July 2017 indicating that if she proposed that a witness give evidence at the hearing, a witness statement setting out the  witness’ evidence be provided to the Tribunal by 4 August 2017 together with her written submissions. This was not done. She did not attend the hearing. During the hearing, the Tribunal raised as issues the lack of evidence to support the claims and the paucity of medical evidence in relation to the applicant. The Tribunal gave the applicant additional time after the hearing to provide further evidence and was only provided with medical evidence in relation to the applicant. 

1. The Tribunal has not been provided with any evidence from the applicant’s daughter’s [relatives] or the priest or the solicitor her brother consulted. The Tribunal has no corroborating evidence before it that [Ms A] converted to Christianity, that the applicant’s son was threatened in relation to [Ms A], that he sought advice from a solicitor or that he was killed because of his relationship with [Ms A]. The Tribunal has no evidence before it in relation to the applicant’s son’s death or the cause of his death as it has not been provided with a copy of his Death Certificate. The Tribunal has been given a document from a hospital that appears to be in Arabic and has not been provided with an English translation. The Tribunal was told by the applicant’s daughter during the hearing that the hospital refused to write down the cause of her brother’s death. The Tribunal has not been provided with a copy of the applicant’s [sibling]’s Death Certificate.

2. There are a number of aspects of this case that the Tribunal would have sought clarification on had it been able to discuss the claims with the applicant. For instance, the Tribunal would have asked her what plans she and her son had made for her ongoing care if her son and [Ms A] were going to leave the country. The Tribunal would also have asked her how she was able to remain in Egypt unharmed for four months before leaving for Australia after two men threatened to kill her if [Ms A] did not return, as claimed in her visa application. These questions remain unanswered.   

3. The Tribunal has had regard to the DFAT Country Information Report on Egypt and the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Findings

4. Having considered all the applicant's claims and all the evidence, the Tribunal accepts that the applicant was born on [date] at Cairo in Egypt. The Tribunal accepts that she is a Coptic Christian. The Tribunal accepts that she was married and had two children of her marriage; a daughter and a son. The Tribunal accepts that her husband passed away in 1999. The Tribunal accepts that she thereafter lived with her son and received a [social benefit].

5. The Tribunal accepts that the applicant suffered a [medical event] in 2011 and that her health has deteriorated significantly since then. The Tribunal accepts that her [sibling] assisted her after the [medical event]. The Tribunal accepts that she has been diagnosed with a number of medical ailments including [medical condition], has been prescribed medication and is being monitored on an ongoing basis. The Tribunal accepts that she has [certain] problems, is unable to live independently and is currently being cared for by her daughter. 

6. The Tribunal is not satisfied, on the evidence before it, that the applicant’s son was in a romantic relationship with a Muslim woman named [Ms A] or that [Ms A] converted to Christianity or that a priest had made arrangements for [Ms A] to go to a monastery and for [Ms A] and the applicant’s son to leave the country. The Tribunal is not satisfied, on the evidence before it, that the applicant’s son was threatened and harassed by [Ms A]’s family and [Mr B] because of his relationship with [Ms A] and/or because she was missing. The Tribunal is not satisfied, on the evidence before it, that [Mr B] took him to the Police Station where he was interrogated or that he was attacked [by] a group of Muslim men who were members of [an organisation]. The Tribunal accepts that the applicant’s son passed away [in] January 2015 but is not satisfied in relation to the circumstances leading to his death or the actual cause of his death.

7. The Tribunal is not satisfied, on the evidence before it, that a group of men went to the applicant’s home and threatened to kill her and her son if they did not return [Ms A]. The Tribunal is not satisfied, on the evidence before it, that one week after her son’s death she was threatened by two men that they would kill her if [Ms A] did not return. The Tribunal is not satisfied, on the evidence before it, that her [siblings], or alternatively, her [relatives] tried to have her son’s death investigated by the Police but that they would not do so. The Tribunal is not satisfied, on the evidence before it, that her [sibling]’s family has been threatened.

8. On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, that there is a real chance that she would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Egypt. Therefore, she does not meet the definition of refugee set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

   Does Australia have protection obligations to the applicant under the complementary       protection criterion?

9. 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 criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

10. As indicated above, the Tribunal is unable to rely on the evidence given by the applicant at the hearing. Her daughter has very limited personal knowledge of what occurred in Egypt. She gave evidence that her telephone conversations with her mother, when she was in Egypt, were brief and mostly related to her health. She also stated that her brother never told her what was going on. She stated that about a month after his death she spoke to some [relatives] to try and find out what happened. Her evidence was, for the most part, third hand.

11. As the Tribunal has not been provided with any evidence from potential witnesses in Egypt or any supporting documentary evidence (other than some medical evidence in relation to the applicant), the Tribunal is not satisfied that the applicant’s claims have been made out.

12. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

    CONCLUSION

13. 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) or s.36(2)(aa) of the Act.

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

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons
         Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)   the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)   conceal an innate or immutable characteristic of the person; or

(c)   without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)   the persecution must involve serious harm to the person; and

(c)   the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)   a threat to the person’s life or liberty;

(b)   significant physical harassment of the person;

(c)   significant physical ill‑treatment of the person;

(d)   significant economic hardship that threatens the person’s capacity to subsist;

(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)   a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)   any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA  Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)   protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)   the person can access the protection; and

(b)   the protection is durable; and

(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36Protection visas – criteria provided for by this Act

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(2A)A non‑citizen will suffer significant harm if:

(a)   the non‑citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non‑citizen; or

(c)   the non‑citizen will be subjected to torture; or

(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)   the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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