1606694 (Refugee)

[2019] AATA 4477

1606694 (Refugee) [2019] AATA 4477 (8 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606694

COUNTRY OF REFERENCE:                  Korea, Republic Of

MEMBER:Linda Symons

DATE:8 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 08 July 2019 at 9:11am

CATCHWORDS

REFUGEE – protection visa – South Korea – fear of ostracism after long absence from home country – age discrimination – unlawful non-citizen – applicant daughter returned to South Korea – family members in South Korea – experience in running own business – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 April 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant, who claims to be a citizen of the Republic of Korea (South Korea), first arrived in Australia [in] July 1995 as the holder of a subclass 676 Visitor visa. He departed Australia [in] October 1995. He returned to Australia [in] October 1995 as the holder of a subclass 676 Visitor visa. On 22 January 1996, he was granted a subclass 686 Visitor visa. On 18 April 1996 he was granted a further subclass 686 Visitor visa. On 28 June 1996, he applied for a subclass 457 Temporary Business visa and was granted an associated Bridging visa. On 30 October 1996, he was granted a subclass 457 Temporary Business visa.

3. On 30 June 1998, the first named applicant applied for a subclass 457 Temporary Business (Long Stay) visa and was granted an associated Bridging visa. On 3 December 1998, his application was refused. On 31 December 1998, he applied for a review of that decision. On 11 July 2000, he withdrew his application for review. On 8 August 2000, his Bridging visa expired and he thereafter remained in Australia as an unlawful non-citizen.

4. The second named applicant, who claims to be a citizen of South Korea, arrived in Australia [in] January 1996 as the holder of a subclass 676 Visitor visa. On 27 March 1996, she was granted a subclass 686 Visitor visa. On 28 June 1996, she was included in the first named applicant’s application for subclass 457 Temporary Business visas and was granted an associated Bridging visa. On 30 October 1996, she was granted a subclass 457 Temporary Business visa as a dependant.

5. On 30 June 1998, the second named applicant was included in the first named applicant’s application for subclass 457 Temporary Business (Long Stay) visas and was granted an associated Bridging visa. The application was refused on 3 December 1998 and the first named applicant lodged an application for review to the MIRO on 31 December 1998. He withdrew his application for review on 11 July 2000. The second named applicant’s Bridging visa ceased on 17 August 2000 and she thereafter remained in Australia as an unlawful non-citizen.

6. The applicants applied to the Department of Home Affairs (the Department) for Protection visas on 25 January 2016. The delegate refused to grant the visas on the basis that they are not persons in respect of whom Australia has protection obligations. On 11 May 2016, they applied to the Tribunal for a review of that decision.  

7. The applicants appeared before the Tribunal on 18 April 2019 to give evidence and present arguments. They were assisted by an interpreter in the Korean and English languages. They were represented by a migration agent in relation to the review. He did not attend the hearing.

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

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.  

13. 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

14. 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 AND FINDINGS

15. The first named applicant’s claims in his application for Protection visas are summarised as follows:

    ·He left South Korea to obtain employment in Australia in 1995-1996.

    ·He has been living in Australia since late 1995 and has nothing in South Korea.

    ·He has lost contact with relatives, friends and work colleagues. If he returns to South Korea he would encounter unfamiliar environments relating to work, personal matters and social matters. South Koreans have a tendency to treat people who are not familiar with the above matters or who act awkwardly “in a manner that could not be accepted by common sense”.

    ·If he returns to South Korea he would be discriminated against and mistreated by his peer group wherever or whenever he works or socialises with them. He would not be able to live an ordinary life because of this South Korean tendency.

    ·This is a specific social phenomenon in South Korea and the South Korean authorities have no concern or have proper law in place. Relocation is not an option as this phenomenon is widespread throughout South Korea.

16. The second named applicant is the wife of the first named applicant. She has not made any claims in her own right. She is a member of the same family unit as the first named applicant.

17. The applicants have provided to the Department copies of their South Korean passports and NSW Drivers Licences.

18. The applicants attended an interview with the Department on 19 April 2016. During that interview, they reiterated and expanded on their written claims. The first named applicant also stated that he undertook four months of military training when he was called up for compulsory military service in [year] but was subsequently given an exemption from completing military service because he was an orphan at that time.

19. The delegate refused the application for Protection visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.

20. The applicants have filed with the Tribunal copies of the Department’s Decision Record dated 27 January 2016 and their South Korean passports.

    Receiving country

21. The applicants claim to be citizens of South Korea and have provided copies of their South Korean passports to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that they are citizens of South Korea. The Tribunal finds that South Korea is the receiving country for the purpose of assessing the claims for protection.

    Third country protection

22. There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Membership of the same family unit

23. The Tribunal finds that the second named applicant is the spouse of the first named applicant. The Tribunal finds that the second applicant is a member of the same family unit as the first named applicant.

    Assessment of claims

24. The first named applicant gave evidence that his application for Protection visas was prepared by his migration agent based on his instructions which were true and correct. He stated that he is satisfied that his visa application is accurate and complete. He stated that there have been no changes in his circumstances since he filed his visa application.  

25. During the hearing, the Tribunal discussed with the first named applicant his background, his family, his education, his employment, his reasons for leaving South Korea and why he fears returning to South Korea.

26. The first named applicant gave evidence that he did not have to undertake compulsory military service in South Korea. He stated that his first job in South Korea was [in a specified occupation]. He stated that he did this job for 5 years. He stated that he and a friend then opened a [business]. He stated that he and his wife subsequently had [another business, Business 1] for 6 or 7 years prior to coming to Australia. He stated that the second named applicant worked [in a specified company] prior to their marriage in 1986 and they thereafter worked together at [Business 1].

27. The first named applicant gave evidence that he initially came to Australia on a Visitor visa in July 2015. He stated that he stayed here for 3 months and returned to South Korea. He stated that he returned to Australia in October 1995. He stated that after coming to Australia he has worked [in Occupation 1]. He stated that the second named applicant [worked in Occupation 2]. He stated that when he cannot [work] due to the weather he helps her with her [job].

28. The first named applicant gave evidence that he owns a car, business equipment, household furniture and contents and a bank account with under $5,000.00. He stated that he owes approximately $6,000.00 on his [credit] card.

29. The first named applicant gave evidence that when he came to Australia he had a visa so his two children were able to attend school here lawfully. He stated that his visa expired after 2 years. He stated that when his two children completed Primary School he enrolled them in High School. He stated that everyone wonders how he was able to send his children to school while living here unlawfully. He stated that the Australian government allowed them to do so and he thanked the Australian government. He stated that both his children got good marks in the Higher School Certificate and went to university. He stated that no one doubted that they were not residents. He stated that he did not tell the university that they were living here unlawfully.

30. The first named applicant gave evidence that his daughter returned to South Korea 3 years ago. He stated that she is currently on a [temporary] visa in [Country 1]. He stated that she has been there for nearly 1 year. He stated that she will return to South Korea before her visa expires. He stated that she is single. He stated that he is in contact with her. He stated that his son works [in Occupation 3 in Australia].

31. The Tribunal discussed with the first named applicant his claims and reasons for not wanting to return to South Korea. He responded that he has heard stories about South Korea from people who attend his Church. He stated that he is [age] years old and is afraid that he will not be able to get job opportunities in South Korea. He stated that he will have no one in South Korea and will have no place to live. He stated that he has lived in Australia for 24 years and it would be difficult to start a new life in South Korea. He stated that he has an ABN number, [an Occupation 1] licence and works [in Occupation 1]. He stated that the second named applicant works [in Occupation 2]. He stated that if he can resolve his visa issues he will buy a house in Australia. He stated that he has relatives in South Korea.   

32. The first named applicant gave evidence that he has [number] sisters. He stated that one of them lives in Australia and the other [number] live in South Korea. He stated that the second named applicant has [number] brothers and [number] sisters. He stated that they all live in South Korea. As the applicants have [number] siblings in South Korea and their daughter will be returning to South Korea before her [Country 1] visa expires, the Tribunal does not accept that the first named applicant will have no one in South Korea and will have nowhere to live.

33. The Tribunal accepts that, in view of his long absence from South Korea and his age, it may be more challenging for the first named applicant to obtain employment. However, he has previous work experience in South Korea and work experience in Australia, including running his own [business] here, which would stand him in good stead. The country information indicates that the South Korean government has passed legislation that specifically deals with age discrimination in employment. The Prohibition of Age Discrimination in Employment and Aged Employment Promotion Act not only prohibits age discrimination in employment but also promotes aged employment.[1]

    [1] Age discrimination.info: South Korea, Yulchon LLC, 19 August 2016. (>

    The above country information indicates that the South Korean State has taken affirmative action to provide employment opportunities for older South Koreans by raising the minimum age of retirement, providing grants and incentives to employers who employ older South Koreans and encouraging older South Koreans to remain in the workforce. The country information indicates that there are companies in South Korea that specialize in providing employment for older people. It indicates that there is, for instance, one company that only employs people 55 years and older and has 420 employees aged 55 to 83 years.[2] In view of the above, the Tribunal is not satisfied that the first named applicant would not be able to obtain employment and would not be able to subsist if he returns to South Korea now or in the reasonably foreseeable future.

    [2] South Korean Startup Only Hires People Over 55, to Fight Age Discrimination, Oddity Central, 15 June 2017. (

34. In his visa application, the first named applicant claimed that South Koreans tend to treat certain people “in a manner that is not accepted by common sense”. When asked what he meant by that, he responded that he has lived in Australia for 24 years and has become Australianised. He stated that when he talks to South Korean people he sometimes feels that they do not have much in common in terms of their minds and emotions. The Tribunal accepts that he has become Australianised and sometimes feels that he does not have much in common with other South Koreans. The Tribunal does not accept that this amounts to serious harm or significant harm if he returns to South Korea now or in the reasonably foreseeable future.

35. In his visa application, the first named applicant claimed that if he returns to South Korea he will discriminated against and mistreated by his peers. When asked why he thought this would happen, he responded that if he returns to South Korea he will be begging and asking for everything. When asked why he claimed that he will not be able to live an ordinary life in South Korea, he responded that there are people renting in South Korea. He stated that when he returns he will have no money and know no one. He stated that they will be homeless when they arrive. He stated that there is no reason why they want to leave Australia and return to South Korea.

36. The evidence before the Tribunal is that the first named applicant’s daughter returned to South Korea 3 years ago. She left South Korea in 1996 at the age of [age] years without having worked in South Korea previously and was able to return there. When she returns from [Country 1] (if she has not already done so), the first named applicant will be able to seek her assistance in relation to accommodation and financial support. The first named applicant’s son works [in Occupation 3] in Australia and he will be able to seek financial assistance from him until such time as he is able to obtain employment in South Korea. He also has [siblings] and the second named applicant has [siblings] in South Korea from whom they could seek support. In these circumstances, the Tribunal does not accept that he will be discriminated against and mistreated by his peers because he will “be begging and asking for everything”. The Tribunal does not accept that he will not be able to live an ordinary life because he will have no money, knows no one and will be homeless when he returns to South Korea. The Tribunal accepts that he does not want to leave Australia and return to South Korea.

37. In his visa application, the first named applicant claimed that the South Korean authorities will not be able to protect him. When asked why he thought that, he responded that in Australia the citizens are protected by the government. He stated that, based on his memory, there is no one who could protect them. He stated that on the day they arrive at the airport there will be no one who could look after them or care for them. The Tribunal pointed out to him that he had family members in South Korea. He agreed that he has [sisters] in South Korea. He stated that they are protected by the government.

38. The country information indicates that South Korea is a democratic republic and has an independent and functioning law enforcement system and judiciary.[3] There is no apparent reason why the first named applicant would not have the protection of the South Korean government. His evidence is that his [sisters] are protected by the government. The Tribunal does not accept that the South Korean government will not be able to protect him or that he will not be able to obtain State protection in South Korea. The Tribunal does not accept that there will be no one who will look after or care for them in South Korea.    

    [3] What type of government does South Korea have?, Worldatlas. (https//: type="1">

39. The Tribunal asked the first named applicant what he thought would happen if he returned to South Korea. He responded that he would have nothing with him. For the reasons given above, the Tribunal does not accept this.

40. The Tribunal raised as an issue with the first named applicant its concerns that he did not satisfy the requirements for a Protection visa. He declined to comment.

41. The second named applicant did not give evidence.

42. The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility when assessing the first named applicant's credibility. The Tribunal has also had regard to the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Section 438 Certificate

43. The Tribunal informed the applicants that their file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on three folios in the file. The Tribunal informed them that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it relates to internal working documents and business affairs. The Tribunal informed them that the information subject to the s.438 Certificate relates to application and identification test details, a checklist on whether information should be disclosed and the third page refers to concerns in relation to how they and their children have been able to live, study and work in Australia unlawfully for so many years.

44. The Tribunal informed the applicants that the information is not relevant to the issues in the case and it appears that the s.438 Certificate is not valid. The Tribunal invited them to make submissions on the validity of the s.438 Certificate. The applicants declined to do so.

45. In light of the Federal Court decision in MZAFZ v MIBP[4], which considered a s.438 certificate with similar wording, the Tribunal finds that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.

    Findings

    [4] MZAFZ v MIBP [2016] FCA 1081

46. Having considered all of the first named applicant’s claims and the evidence, the Tribunal accepts that the first named applicant was born on [date] in South Korea. The Tribunal accepts that he married the second named applicant [in] October 1986 and has two children of his marriage [a daughter] (born on [date]) and [a son] (born on [date]). The Tribunal accepts that he has a sister who lives in Australia and [number] sisters who live in South Korea and the second named applicant has [number] siblings who live in South Korea.

47. The Tribunal accepts that the first named applicant first came to Australia [in] July 1995 as the holder of a subclass 676 Visitor visa and departed Australia [in] October 1995. The Tribunal accepts that he returned to Australia [in] October 1995 as the holder of a subclass 676 Visitor visa. The Tribunal accepts that on 30 October 1996 he was granted a subclass 457 Temporary Business visa for 2 years and the second named applicant and their children were also granted subclass 457 Temporary Business visas as his dependants. The Tribunal accepts that he was unable to obtain another substantial visa and he and his family became unlawful non-citizens in Australia on 8 August 2000.

48. The Tribunal accepts that the applicants thereafter continued to live and work in Australia and their children continued to attend school. The Tribunal accepts that the first named applicant’s children completed High School and enrolled at university and were able to obtain tertiary qualifications without disclosing that they were living here unlawfully. The Tribunal accepts that his adult son is currently working [in Occupation 3 in Australia]. The Tribunal accepts that his adult daughter returned to South Korea 3 years ago. The Tribunal accepts that she is currently on a [temporary] visa in [Country 1] and has been there for almost 1 year. The Tribunal accepts that she will be returning to South Korea before her visa expires.

49. The Tribunal accepts that the first named applicant is apprehensive about returning to South Korea after his long absence. The Tribunal accepts that he would prefer to live and work in Australia with the second named applicant. The Tribunal accepts that he does not wish to return to South Korea.

50. The Tribunal is not satisfied that the first named applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to South Korea now or in the reasonably foreseeable future. 

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

51. Having considered all of the first named applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to South Korea now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

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

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

53. Having considered all of the first named applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the first named applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to South Korea now or in the reasonably foreseeable future.    

54. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to South Korea, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

55. For the reasons given above, the Tribunal is not satisfied that the first named 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.

56. There is no suggestion that the first named 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, he does not satisfy the criterion in s.36(2) of the Act.

57. As the first named applicant does not satisfy the criteria in s.36(2)(a) or (aa) of the Act and does not  hold a Protection visa, the second named applicant is unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the second named applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

58. The Tribunal affirms the decision not to grant the applicants Protection visas.

L.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.

..

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.

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