1606590 (Refugee)

[2018] AATA 719

1606590 (Refugee) [2018] AATA 719 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606590

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE:27 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 27 February 2018 at 2:56pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Political opinion – Blogger – Independence of Sabah – Police investigation – Fear of imprisonment – Death threats – Sedition charges – Crackdown on dissent – Intimidation of political opponents

LEGISLATION
Migration Act 1958, ss 5(1), 5J-5LA, 36, 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 Malaysia, applied for the visa [in] March 2016.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in Malaysia and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

10. The applicant claimed in his protection application that:

    ·The applicant departed Malaysia in fear of being harmed by the authorities of Malaysia for a blog he wrote advocating the independence of Sabah from Malaysia;

    ·He claims that a police report was made against him and the police are looking for him to take legal action under the Malaysian Sedition Act 1948;

    ·The applicant fears if returned to Malaysia, he will be jailed;

    ·He claims he experienced harm when police tried to break up the Bersih rally using tear gas and acid water;

    ·He did not seek help from the authorities because the Malaysian government will implement the Sedition Act and anyone who tries to help him will be held accountable;

    ·He does not think he can relocate elsewhere since Malaysian authorities are all government supporters; he will be found anywhere in Malaysia by them.

11. On the basis of the applicant’s Malaysian passport and other information on file and for the purposes of this review I accept that the applicant is a national of Malaysia, which is also his receiving country. I find on the evidence before me that the applicant does not have a right to enter and reside in any third country.

12. The applicant lived in Sabah. His wife and [number] children are in Australia and have made their own claims for protection separately to the applicant. His wife, [named], appeared as a witness.

13. The applicant has qualifications in [an occupation]. He worked [in that occupation] in a firm and then he set up his own business.

14. The delegate refused the application. The delegate noted that Sabah and Sarawak had had continuing issues with their autonomy since federation with Malaysia, that political activists in these two states had been actively campaigning for greater autonomy and that the [named] blog had articles about these things but there was no information that people associated with that blog had been persecuted under the sedition act. The delegate found the applicant had not identified as a political or social activist, and the delegate could not find the applicant’s blog.[1] ([Address deleted.]) the delegate found the provision of a police report implausible. The delegate found the applicant had not provided detail of his involvement in Bersih. The delegate did not accept the applicant would be harmed. The delegate did not accept the applicant faced a real chance of persecution for his political opinion or other reason. No interview appears to have been offered or arranged. The applicant provided a copy of the delegate’s decision to the Tribunal.

    [1] [Details deleted].

15. The applicant provided a copy of country information and a police report to the Department but did not explain further.

    Assessment of claims

16. The applicant appeared before the Tribunal and provided further evidence. He gave his evidence unadorned and clearly, I did not find him to have manufactured or exaggerated his claims and found him to be a credible witness. For this reason and as set out in further detail below, I have accepted the majority of his claims.

17. The applicant explained that he had been active in UMNO but had gradually become disillusioned with the treatment of Sabah by the major parties and had quit in [year], in particular he developed the view that the riches of Sabah were being used to develop the rest of Malaysia but not Sabah. He was able to show [social media] posts back to [year] which included pictures he had taken of rundown infrastructure in Sabah with his comments, which gradually became more trenchant against the Malaysian government. The applicant took part in work for NGOs in Sabah which allowed him to see parts of Sabah that had been neglected. He explained that he gradually became aware that the treatment of Sabah was unfair, and he was able to demonstrate this with the [social media] posts he provided from [year] and later years.

18. In 2014 he was elected to [a leadership role] of one of the NGOs, called [NGO 1]. He described this as an organisation that fought for the rights of the indigenous and those born in Sabah. He said that they were involved in a lot of work to help these people and through this work he was able to see that Sabahans were being neglected. He explained that they would get involved where, for example, a group of people were to be relocated for a development, or where a cemetery was to be relocated from a smaller island to the Sabahan mainland. They also worked on anti-corruption drives. This work brought him into conflict with local law enforcement and the Malaysian government. I was able to search his blog and find photographs of the applicant being awarded the [leadership role] of this organisation.[2] He has also provided a letter from [NGO 1] dated [in] January 2013.

    [2] [Deleted.]

19. The applicant said that he would also express his views on his blog, and that he had started to advocate for Sabah to leave Malaysia in around [year] and it was because of this that he had to leave Malaysia. He said that he had been tipped off by a friend who worked with the police in his local area that he had been called in to speak with them at an interview as part of an investigation into his blog. He said this occurred [in] July 2014. On being told this he deferred the interview and then flew to Kuala Lumpur, to [two countries] and then Australia. He said he had spoken to officials in both [these countries] about seeking protection but they had told him he did not meet the qualifications for that. He said he did not go to the interview with the police as he feared being arrested. He then sought protection in Australia. He said that he had applied early on but that his first application had been rejected as he had not provided his biometrics.

20. The applicant said that the police had called him repeatedly when he did not show up for the interview and came to his house.

21. The applicant referred to the police reports he had provided to the Department and the Tribunal. To the Tribunal he provided one police complaint with translation said to be from a person who had viewed his blog, and in particular a blog post called ‘[Title]’ and complained to the police and had been referred to SKMM.[3] The applicant claimed that the SKMM is the authority in Malaysia that monitored online activity and could inform police if they saw blogs or online activities that advocated sedition in Malaysia. The applicant explained that this report had been photographed by a friend of his who [worked] in [a different government agency]. He said that this friend had told him that other reports had been made against the applicant but his friend had been unable to take photos of those.

    [3] SKMM is the Malaysian Communications and Multimedia Commission (MCMC) -

22. I noted that the only action appeared to be that the complainant was referred to SKMM. He agreed but said that when SKMM researched his blog, if they found it to be against the Sedition Act they would refer the matter to police to be arrested, which is what had occurred. He noted that there were other reports as well. After the hearing the applicant was able to provide further photograph copies and one translation of further complaints against his blog.

23. I noted that the evidence he had provided might indicate that complaints had been made against his blog, but not that the police were investigating or seeking to arrest or charge him. He said that the police had sought to interview him and had come to his house numerous times to look for him and his wife and family had had to relocate to another village and had then been forced to come to Australia.

24. I noted that his blog was still available to be viewed and that I believed that SKMM had the power to take down blogs. He said that the police and SKMM did not have the power to shut down a blog if it was not hosted in Malaysia, that they were only able to shut down [one social media site].

25. The applicant was able to discuss in some detail and with some passion his views as to why Sabah should not be within the Malaysian Federation. He noted that he had continued to blog from Australia, and this is evident from his blog.

26. The applicant said that he feared being arrested and charged under the Sedition Act on return, and that he would be jailed. He said he also feared harm from supporters of the government and ruling coalition, and noted that he had received death threats online. He was able to show me, with the help of the interpreter, that a [social media] post form Melbourne only mildly critical of the situation in Sabah had been responded to with a threat to cut his head off if he was seen in Sabah. I asked if he knew this person and the applicant said it was a [social media] account so he did not know. The applicant said he had also received telephone calls from private numbers and the callers would be very threatening.

27. The applicant’s wife, [named] gave evidence. She said that the police had come to their house in Sabah after the applicant had departed and she had been greatly afraid. The police had said that they wanted to find her husband. She said that they had come repeatedly from the day her husband went to Kuala Lumpur until she decided to take the family and move to live with her parents. She confirmed this had happened just before her husband left for Australia. She said that she then decided it was not safe for her or the children and they came to Australia. She detailed the threats the applicant had received, telling him to stop criticising the Malaysian government. She said that if he returned he would be arrested and jailed and then she did not know what would happen to her and the kids.

    Country information

28. I discussed with the applicant country information. Below I have inserted the relevant information from the most recent DFAT report:

    Online and Social Media

    3.72 Social media is the primary outlet for free discussion in Malaysia. According to the World Bank, approximately 17 million people (67 per cent of the population) use the internet. The government generally maintains a policy of open and free access to the internet. However, since 2001 the Malaysian Communication and Multimedia Commission (MCMC) have monitored some online content, including emails and blogs. The MCMC is a small organisation with few staff. In July 2013, the MCMC reported it had blocked 6,640 websites since 2008 for pornography, malicious content, or copyright infringement. In January 2016 the MCMC established a ‘Special Committee to Combat Abuse of Social Media’. The Royal Malaysian Police also have an active social media unit which monitors online forums and selectively issues warnings to individuals who are critical of the government or Malaysian royalty.

    3.73 The MCMC has ordered outlets and bloggers to remove material considered to be provocative or subversive and has charged individual bloggers with sedition or defamation. The government increasingly uses the Sedition Act against social media users who express dissenting views online. Political cartoonist Zulkiflee Anwar Ulhaque, known as ‘Zunar’, was arrested in 2015 for posting nine cartoons on Twitter that criticised Najib’s government, in regards to alleged corruption and the trial of Anwar Ibrahim. Zunar was charged under the Sedition Act and faces up to 43 years in prison. At least 15 people were charged under the Sedition Act in 2015. Ordinary social media users are also at risk of prosecution, for example, in August 2013 a Twitter user was fined RM10, 000 (approximately AUD3, 330) for questioning the need for a monarchy.

    3.74 In February 2016, artist Fahmi Reza was issued with a warning that the police were watching his Twitter account and that he should use it ‘prudently and in line with the law’ after he posted an image of Najib made up as a clown with the comment ‘in a country full of corruption, we are all seditious’. The Government tends to make examples out of select individuals rather than attempt to block all critical content. The majority of political commentators are not targeted by police and it is possible to find uncensored criticism of the Government, even on Prime Minister Najib's Facebook page.

    3.75 Alleged violations of freedom of expression for online publications were reported to the UN Human Rights Council in early 2016. In one example, the MCMC blocked the whistle-blowing website Sarawak Report on 19 July 2015 after it published an article regarding the involvement of the Prime Minister in the 1MDB corruption scandal. Malaysian authorities issued an arrest warrant for Clare Rewcastle-Brown, the British founder and editor of the Sarawak Report on 4 August 2015. She continues to be under investigation. Similarly, the Malaysian Insider, a popular online news website owned by the same media group as The Edge newspaper, was blocked by the government in February 2016 after it reported on the 1MDB corruption scandal. It was subsequently closed down by owners who stated it was no longer profitable.

    3.76 In June 2013 Prime Minister Najib and UMNO filed a suit against popular online news website, Malaysiakini, and it was banned from covering major UMNO events in 2013, including the supreme council meetings and the annual general meeting. The website commonly published political commentary.

    3.77 DFAT assesses that bloggers and online media sources face a moderate risk of harassment but a low risk of being charged with defamation or sedition if they publish material critical of the government or cover sensitive ethnic or religious matters. Notwithstanding, most Malaysians are generally free to participate in activities online without interference.[4]

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

29. Further:

    Civil Society Organisations

    3.66 There are a number of domestic and international civil society and human rights organisations that operate throughout Malaysia and actively comment on issues such as the legislative environment, the rights of women in Islam and the government’s human rights practices. Although these organisations are generally able to function independently, the deterioration in freedom of expression in recent years has led to an increase in self-censorship. Some organisations reported that constructive engagement between the government and civil society can be difficult and their advocacy and recommendations are largely ignored. Many civil society organisations choose to register under the Malaysian Companies Act as opposed to the Societies Act to avoid delays and restrictions on their activities. The registrar of societies has prevented registration of organisations that they deem unfriendly to the government. Authorities regularly used registration issues as a basis for investigating NGOs.

    3.67 During 2015, the government charged several civil society members under the Sedition Act. Some contacts described instances of police intimidation and legal harassment. Eric Paulsen, a prominent human rights lawyer and co-founder of the Malaysian NGO Lawyers for Liberty, was detained three times during 2015 for alleged acts of sedition. Paulsen had posted criticism of the Religious Affairs Department, the application of hudud laws and the Prime Minister on Twitter. The Inspector General of Police said that Paulsen should be careful making comments on sensitive issues. Paulsen was released on bail on all three occasions. If found guilty under the Sedition Act, an individual can face up to three years in jail, be fined up to RM 5,000 (AUD1,600) or both.

    3.68 DFAT assesses that civil society members critical of the government have a moderate risk of official discrimination and may be subjected to legal harassment or surveillance by law enforcement authorities. More often than not, when civil society members were arrested, their charges were dropped and individuals were released within short timeframes. Harassment at the individual level was commonly targeted at activists with a public profile, but not necessarily at the highest level of an organisation.[5]

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

1. It appears that 2015 amendments to the Sedition Act were in direct response to demands from some in Sabah and Sarawak to secede from the Malaysian Federation.[6] The Act has been used, opposition groups say, to stifle dissent and criticism in Malaysia, despite the removal of some offences of Sedition in relation to criticism of the government and judiciary, and has been used on lawyers, politicians, cartoonists and others who demonstrate dissent.[7] Human Rights Watch in 2016 noted that the crackdown in dissent had extended beyond activists and politicians to ordinary citizens on social media.[8] Amnesty International reported in 2016 that use of the Sedition Act to target those who opposed the government had skyrocketed after the close 2013 election, with 91 individuals arrested, charged or investigated for sedition in 2015.[9] There are reports of those disseminating information on Sabah’/Sarawak secession being charged under the Sedition Act.[10] As recently as December 2017 the Deputy Prime Minister warned of severe punishment for those advocating secession.[11]

   [6] Palatino, M., ‘Malaysia Strengthens Sedition Act’, The Diplomat, 13 April 2015,

   [7] Razak, I., ‘Malaysian authorities using Sedition Act to stem criticism, opposition says’,  ABC News, 13 August 2015,

   [8] Human Rights Watch, ‘Malaysia: Crackdown on Free Speech Intensifies’, 12 October 2016,

   [9] Amnesty International, ‘Malaysia must end unprecedented crackdown on hundreds of critics through Sedition Act’, 25 January 2016,

   [10] Lee, S., ‘Four charged with sedition over Sabah, Sarawak separatist website’, The Star, 16 March 2015,

   [11] Malaysiakini, ‘Severe punishment for Sabah, S’wak separatists, Zahid warns’, 5 December 2017,

2. I have carefully considered the country information. It appears clear that the political situation has changed since the 2013 election, and that there is less space for political dissent than there was. The country information indicates that Malaysia is becoming less tolerant of difference, and different political views. The government is highly sensitive to any criticism, and to any discussion of secession, and polices social media through the Malaysian Communication and Multimedia Commission.

3. The issue of secession by Sabah and Sarawak appears to be an area of concern for the government, and there has been use of sedition laws to try and quash this. The government appears also to be focusing not just on those with a high profile, but those that it deems a threat. I have considered the use of the Sedition Act. Laws criminalising ‘sedition’ are by their nature political and contested. They are used all around the world to stifle or reduce dissent. They may have a legitimate role to play in democratic, pluralistic open societies but are far more likely to be used to stifle dissent by governments that have a tendency towards autocracy. Having considered the country information I do not accept that the Sedition Act, in the manner it is being used by the Malaysian government at this time, is a law of general application, nor that it is appropriate and adapted to the purpose of Malaysian society, which as DFAT observed, has been reasonably pluralistic in the past. I find that the Sedition Act has been used since the 2013 election to target and supress those who oppose the government and who express a political opinion.

4. I have considered the applicant’s claims in the context of the country information set out and summarised above. I found the applicant entirely credible – when pressed he was able to provide further detail about his prior activities and his views on Sabah and secession, yet he also conceded points when he did not know or was not aware of the details. I also found his wife to be entirely credible and consistent with the claims made by her husband. I find both to be witnesses of truth and I accept the claims made above. I find that the applicant is a committed and long-standing political activist, having volunteered and worked in NGOs focused on assisting and developing Sabah, and that in this context, as demonstrated on his blog, he became increasingly unhappy with the manner in which the government, and the Federal government, were dealing with Sabahan issues. I find that this led him to develop views including that Sabah should secede, and also to develop anti-Malaysian government views. Again, these are clearly manifested on his blog. I also find that his blog came to the attention of members of the public who made police complaints – it appears that there are at least two of these complaints that the applicant has been able to supply me with. Given that the Sabah situation is highly politicised I find it entirely consistent with the country information that members of the public would make complaints about such materials to the police. I also accept that the police sought an interview with the applicant and when he did not appear I accept that they sought him at his home, and that they persisted in visiting in a manner that his wife felt threatened and relocated first to her parents and then came to Australia. I consider that the applicant’s wife and children coming to Australia tends to be indicative of their subjective fear, and tends to suggest that the applicant did not come here just to work. I find that as [a former leader] of an NGO focused on the rights of Sabahans, and as a blogger who has now come to the attention of the police and the MCMC, there is a strong likelihood that the applicant has been, or would be, charged with offences under the Sedition Act, with the prospect of imprisonment if he were found guilty. I note that the applicant has continued to blog whilst in Australia, and I find that if he returned to Malaysia he would continue to do so. It is also relevant to note that DFAT, and other reports, indicate that there is an increase in self-censorship for political activists, and that there have been a number of prosecutions.

5. I find that the Sedition Act is not a law of general application as it is very clearly, and as identified in the country information, used to quell political dissent, rather than being used for a legitimate state objective. It is targeted towards those who express their political opinion through political dissent which the government finds difficult or is sensitive to. I find that prosecution and other forms of official discrimination, as well as the chance of social harassment or intimidation encouraged by the official rhetoric, raised in the country information in relation political opponents, and specifically to those who advocate or wish to discuss the secession of Sabah and Sarawak, may reach the level of serious harm, especially on a cumulative basis, amounting to significant physical harassment or significant physical ill-treatment, including arrest, detention, and potentially imprisonment.

6. On the evidence before me, including the country information referred to above, I find that the chance of the applicant suffering serious harm for reasons of his political opinion, being the secession of Sabah from the Malaysian Federation, in the form of significant physical harassment or significant physical ill-treatment from the authorities or those in society emboldened by the government rhetoric, if he were to return and continue to blog and publicise his views and opinions, would not be remote or far-fetched. I further find on the country information that such threat of serious harm, being from state actors, would be present throughout the country.

7. Taking account of the country information and the particular circumstances of the applicant, I am not satisfied that the State is willing to offer effective protection measures to the applicant, indeed, much of the harm feared would be from the state or agents of the state, and nor am I satisfied that the applicant would be able to access effective protection measures if returned to Malaysia now or in the reasonably foreseeable future.

8. I find that the applicant’s political opinion is the essential and significant reason for the persecution, and that the persecution involves ‘serious harm’ as it amounts to significant physical harassment and significant physical ill-treatment and that the persecution involves systematic and discriminatory conduct.

9. I find that there is a real chance, that is, one that cannot be discounted as remote, that the applicant will suffer persecution for reasons of his political opinion, if he returns to Malaysia, now or in the reasonably foreseeable future.

10. Therefore I am satisfied that the applicant’s fear of persecution in Malaysia is well-founded, and I find that the applicant is a refugee.

    Conclusions

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a)of the Migration Act.

    Sean Baker
    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.

    …