1612373 (Refugee)

[2018] AATA 289

1612373 (Refugee) [2018] AATA 289 (15 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612373

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sean Baker

DATE:15 January 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 15 January 2018 at 2:50pm

CATCHWORDS

Refugee – Protection Visa – Malaysia – Particular social group – Lesbian – Victim of harassment and bullying – Fear of official discrimination – No state protection

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473

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] August 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] January 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 claims she came to Australia to escape systematic persecution and sexual harassment as a lesbian in Malaysia. She claims she discovered her sexuality when in primary school and that she was ridiculed, teased and bullied at school. She claims she felt helpless and guilty. She claims her mother took her to a doctor to check whether it was a psychological problem. The applicant worked at [a company] and the [manager] and colleagues ridiculed and discriminated against her, showing her pornographic literature just to arouse her so that she would become straight. She claims when they knew about her partner [Ms A] they would send her flowers to tell her “there is no such thing as same sex marriage.” The applicant claims on [a certain day in] 2013 she was with [Ms A] at [a] shop. She claims they were abused and questioned by a female police officer because they were kissing in public. She claims the female police threatened to lock them up. The applicant claims she and [Ms A] planned the trip to Australia because they wanted to live their lives as ‘husband and wife’ in Australia free from harassment and persecution. She claims they want to be stigma free and claims this is impossible in Malaysia. The applicant fears that if she returns to Malaysia she will not be able to live together with a female partner and will have to hide her sexuality, be careful with her dress code and be discreet about emotional displays.

11. To the Tribunal, she provided a statement before the hearing in which she claims she was sexually assaulted by an older boy. This profoundly affected the applicant. She became aware of her sexual orientation at [a young age]. She was bullied and sexually assaulted at school and the school authorities and her parents were not interested in helping her. She was prescribed hormonal treatment. She tried very hard never to disclose her sexuality. She was not treated fairly at work because they knew or suspected her sexuality. She was stressed most of the time and in depression. She included country information.

12. At hearing the applicant discussed her sexuality and said that she had separated from her former partner [Ms A], who had returned to Malaysia and abandoned her protection application with the applicant. She said she was in a new relationship with a [woman] here in Australia. When asked why her current partner could not give evidence she said that her partner was in [their home country] because of her health.

13. The applicant explained the delay in seeking protection. She said that she had not been aware that as a lesbian she could seek protection until a friend had told her.

14. The applicant described in detail her realisation of her sexuality, the bullying she had received at school. She was in a relationship for four years with [Ms A], but they had to conceal their relationship throughout this time. She suffered bullying and harassment at work because of her appearance and their suspicions about her sexuality and she was required to wear certain clothes. She described going out with [Ms A] in July 2013 when a group of young men threatened to rape [Ms A] if the applicant did not give them some money – she gave them the money and she and [Ms A] ran away. She described being harassed by the police and forced to pay bribes because of her appearance. She said that she and [Ms A] always had to pretend they were cousins when they went out. She said that she had been seeing a psychologist because of the suffering and difficulties her life in Malaysia had caused. She said that if she returns to Malaysia she will have no choice but to hide her sexuality.

15. I discussed with the applicant country information from the DFAT Country report:

    Sexual Orientation and Gender Identity

    3.89 Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).

    3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.

    3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.

    3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.

    3.93 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a ‘re-education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government ‘viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.

    3.94 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.[1]

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

16. The applicant responded that the Government made it look like they had human rights but that she was afraid that it was not like that.

17. After the hearing the applicant provided a further statement in which she explained that [Ms A] had not taken my call during the hearing because she thought it was a local caller, that she had continued to suffer harassment and persecution as a lesbian on returning to Malaysia. She said that the agents she had used had not lodged applications in a timely manner. She said that she fears being treated in an inhuman and degrading manner if forced to return.

18. The DFAT report set out above notes the restrictions imposed on the LGBTI community in Malaysia, and relevantly assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia and that many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment. Other information identifies that article 377A of the Penal Code is used as a tool for prosecution of male to male interactions, but also noted that lesbians are oppressed by other rules that enforce dress codes and restrictions on women, noting that women who do not conform to gender expectations in Malaysia can expect harassment from the police and the general population, and that the situation in Malaysia has worsened for gay men and homosexuals.[2]

    [2] Williams, W., Strategies for Challenging Homophobia in Islamic Malaysia and

19. The US Department of State and a number of non-government organisations have all reported on the Malaysian government’s laws and programs and public vilification of LGBT people, providing an environment for societal discrimination and harassment and violence against LGBT people in Malaysia[3]. Older articles note that the Penal Code laws, whilst rarely used, hang over the heads of the LGBTI community and are available as a tool to intimidate, harass, extort and exploit them.[4] More recently, a panel of journalists and activists discussing hate crimes against the LGBTI community has concluded that rising Islamisation in the country was leading to growing intolerance and increased hate crimes, and it was said that LGBTI people faced increasing persecution on a daily basis, and that harm on the basis of religious beliefs overstepped the Federal Constitution and its protections.[5] The UN special rapporteur on physical and mental health reported in 2015 that ‘discriminatory societal attitudes towards LGBT persons prevail in Malaysia and have been exacerbated over the past few decades by the use of a stigmatizing rhetoric by politicians, public officials and religious leaders, and that the criminalization of same-sex conduct and of different forms of gender identity and expression has reinforced negative societal attitudes and has led to serious human rights violations of the rights of this group of the population, including significant barriers in access to health care.’[6]

    [3] US Department of State, “Malaysia 2014 Human Rights Report”; OutRight Action International, Malaysia must recognize and stop hostilities towards LGBT people”, International Gay and Lesbian Human Rights Commission, “Violence: Through the lens of lesbians, bisexuals women and trans people in Asia”, May 2014.

    [4] Lim S.H. 2007, “No sex party going on at Penang fitness centre, say those arrested‟, Fridae website, 22 November

    [5] Mei Lin, M., 2016, “Growing intolerance of LGBTIQ community due to Islamisation, forum told”, Malay Mail Online, 21 August,

    [6] UN Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Addendum : Visit to Malaysia (19 November–2 December 2014), 1 May 2015, A/HRC/29/33/Add.1, available at: 5 October 2017]

20. I found the applicant’s oral evidence detailed and persuasive and consistent with the country information above. Whilst at times she struggled to provide some detail, such as of the claimed [2013] event, I find that this is not relevant to the core of her claims. As did the delegate in this case, on the evidence before me I accept that the applicant is a homosexual and regards herself as a lesbian. I accept that she was in a relationship with [Ms A] for four years and that they travelled to Australia as a couple and I accept that this was motivated in part by their desire to live openly as a couple. I accept that she was sexually assaulted by a boy and later in school was bullied and sexually assaulted. I accept that she has been identified or imputed as a lesbian on account of her dress and appearance by her family and her workmates and that this has led to harassment and discrimination. I accept that she has acted discreetly in not disclosing her past relationship with [Ms A] from fear of being further harassed, bullied or otherwise harmed by her family, employer, workmates or others.

21. I find that homosexuals are a particular social group as defined by s.5L of the Act as the characteristic of homosexuality is shared by each member of the group; and the applicant shares this characteristic; and the characteristic is an innate or immutable characteristic and is so fundamental to the members’ identity or conscience, the member should not be forced to renounce it; and the characteristic distinguishes the group from society and is not a fear of persecution.

22. I accept the evidence of the applicant that she fears being discovered as a lesbian, and feared showing affection to her then partner for this reason, and modified her behaviour in order to avoid harm. 

23. I have considered her claims in the context of the country information set out and summarised above. I consider that the country information is indicative of ongoing discrimination against LGBTI people in Malaysia. As the delegate indicated, discrimination of itself may not meet the threshold of serious and significant harm. However, the country information supports a view that Malaysia is becoming less tolerant of LGBTI people rather than more, that the laws create a chilling effect and can and have been reported to have been used to harass, extort and exploit LGBTI people, and as above I accept that the applicant’s colleagues used her suspected homosexuality as a threat on the basis of her appearance and presumed behaviour. I note the information that the legal situation and the Islamisation of Malaysia provides a degree of impunity for hate crimes and I do not accept that such crimes would be confined only to the targeting of Muslims but against LGBTI people of all ethnicities - because the actions are those of non-state actors acting in a permissive environment rather than an organised exercise of targeting only Muslims. On the country information I find that the authorities will not protect the applicant from further harassment, nor from any intimidation, exploitation, extortion or hate crimes she may experience.

1. I find that the harassment, intimidation, exploitation, extortion and hate crimes raised in the country information may reach the level of serious harm, especially on a cumulative basis, amounting to significant physical harassment or significant physical ill-treatment.

2. Given the applicant’s oral evidence about her fears of discovery and her experiences growing up in Malaysia, and the country information noted above, in particular the DFAT report, I find that the applicant remained discreet about her sexuality, and relationship with [Ms A], in Malaysia not by choice, but at least partly because she feared being harmed by authorities or those in society emboldened by the anti-LGBTI sentiments of political and religious leaders. I find that the applicant, in relation to her sexuality, remained discreet due to the threat of harm and in order to avoid persecution. Relevantly, if she were to return and seek another same-sex relationship I find that she would feel compelled to remain discreet for these reasons.

3. I accept that she has modified her behaviour in the past to avoid harm. Section 5J(3) requires a person to take reasonable steps to modify their behaviour, but specifically excludes a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation. I have found that the applicant is a homosexual and I find that a modification of her behaviour to avoid a real chance of persecution would violate this exception and require her to modify a fundamental characteristic of her identity and conceal an innate or immutable characteristic and her true sexual orientation and/or gender identity.

4. 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 her sexual orientation or relationship with another woman, in the form of significant physical harassment or significant physical ill-treatment from the authorities or those in society emboldened by the anti-LGBTI sentiments of political and religious leaders, if she lived openly as a lesbian, would not be remote or far-fetched. I further find on the country information that such threat of serious harm would be present throughout the country.

5. As above, I accept that the laws criminalising homosexual acts are rarely enforced, but these laws have not been repealed and as above I consider that the law, and the ongoing anti-LGBTI sentiments of political and religious leaders provides an environment permissive and conducive to discrimination, harassment and violence against LGBTI people in Malaysia.[7]

   [7] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [47]; see also per Gleeson CJ at [12].

6. 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, 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.

7. I find that the applicant’s membership of the particular social group of homosexuals, 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 as listed in subsection s.5J(5), and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).

8. 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 her membership of the particular social group of homosexuals, if she returns to Malaysia, now or in the reasonably foreseeable future.

   Conclusions

9. 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

10. 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.

    …

    
    

Secular China, Nebula, 6.1, March 2009,