1612865 (Refugee)

[2018] AATA 1286

1612865 (Refugee) [2018] AATA 1286 (6 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612865

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nora Lamont

DATE:6 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 06 April 2018 at 9:59am

CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Muslim and Christian – Social group – Married couple – Intention to convert to Christianity – Delay in protection application – Inconsistent evidence

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 65, 424A, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33

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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Malaysia, applied for the visas [in] February 2016.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

REFUGEE ASSESSMENT

1. The first named applicant (hereafter the applicant) provided his Malaysian passport to the delegate at the department. The department found that with no evidence to the contrary the applicant is a citizen of Malaysia. Therefore the Tribunal has assessed the applicants’ claims against Malaysia as their country of nationality and receiving country for Complementary Protection purposes. The second named applicant presented her passport to the delegate at the department. The department found that with no evidence to the contrary the applicant is a citizen of Malaysia. The Tribunal accepts that the applicant is a national of Malaysia. Therefore the Tribunal has assessed the applicants’ claims against Malaysia as their country of nationality and receiving country for Complementary Protection purposes.

2. The applicant’s (both applicants) claims as presented to the department can be summarised as follows:

• The applicants claim to be married and their marriage is not sanctioned by their families as applicant one is a Muslim and applicant two is a Christian. The applicants were getting pressure from their families and were driven by the family because they want to keep the marriage.

• They have nowhere to go in Malaysia as they are considered to be “illegal” as they are from different religions and cannot live together from different religions.

• Applicant one is considering converting from Islam to Christianity. He told his family and they will not accept it and he fears that he will be hunted down by the Islamic Religious Department

• We may be condemned by the Muslim community according to Islamic law. Those Muslims who convert to other religions, they will be sentenced to death and imprisoned in accordance with the law of Islam.

• In Malaysia especially the law of Islam will never give protection to those Muslims who convert to another religion. The death penalty will be imposed according to the Islamic law.

• Applicant two came here to follow her Husband and will not convert to Islam and wishes to remain a Christian

• The applicants submitted a translated document of the Enactment No 3 of 1995 Syariah Law Criminal Offences enactment that no man shall marry a non-Muslim.

Credibility

1. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

2. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant’s credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate their claims.

3. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 AT 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heery J and Kopalapillai v MIMA (1998) 86 FCR 547).

Consideration of Claims and Credibility

1. The applicant is [age] year old Muslim male from Sabah Malaysia.

2. The applicant told the Tribunal that he met his wife when he was attending College pursuing a diploma in [a course] and she was going to the school in 2013. The applicant stated that they dated for about a year before they were married on August [2014].

3. The applicant claims that they were married in a church in Sabah. The Tribunal asked why then were they unable to give the Department or the Tribunal a marriage certificate and the applicant said we only went to the registration office we did not hold a ceremony. The applicant then said he had a certificate but it was in Malaysia. The applicant then stated that they were not legally married. When the applicant was questioned further he claimed it was just a marriage in a church and there was no legal marriage. The applicant could not tell the Tribunal when and where he had allegedly been married.

4. The applicant stated that he and his wife had been living together in a share house in Sabah on top of a commercial building together long before they were married and that his parents and her parents had no idea they were living together.

5. The Tribunal asked if his parents knew that he married a Christian and he responded that he has not told his parents he is married. The applicant said that my parents know that I am in Australia but they don’t know I am married. When asked if his wife’s parents knew they were married the applicant responded no they did not. This contradicts the applicants own claims to the Department that he had left Malaysia as his family does not sanction his marriage and he was pressured and driven by his family.

6. The Tribunal asked the applicant when he told his parents he wanted to convert to Christianity how did they respond. At first the applicant told the Tribunal he had not yet told his parents he wants to convert to Christianity. When the Tribunal read his claim he made to the department where he had indeed stated he had told his parents he wanted to convert the applicant stated he only told his mother and he never said he would do it for sure just that he was thinking about it. The Tribunal does not accept that the applicant has ever told his mother or father that he intends to convert.

7. The applicant said that his father is a strong Muslim but he himself did not go to the Mosque. The applicant said he had not been to the Mosque or prayed in over 10 years. The Tribunal asked him what he liked about Christianity and he said that Islam and Christianity were very similar and he gets a peaceful feeling. The applicant said he had attended church services at [a] church in [Suburb 1]. The applicant stated these things cannot be rushed when thinking of converting. When asked if the applicant read the bible he said he had at church. The applicants’ responses to Christianity were vague and non-substantive. The Tribunal accepts that the applicant has attended the [Church] in [Suburb 1] but based on the limited knowledge of Christianity and the limited responses received the Tribunal does not accept that the applicant is serious about converting to Christianity.

8. The Tribunal asked why the applicant arrived in Australia four months before his wife arrived in Australia and he stated that he first went to [Country 1] but it was too close to Malaysia and he felt his family may come after him so he came to Australia. He stated that he came first for economic reasons and so he could check out Australia before she came over. The applicant did not put down in his application to the Department that he had travelled to [Country 1] but he did not put down in his application for protection travel to [Country 2] for a holiday from [a date in] November 2014 until [later date in] November 2014. Less than one month later the applicant arrived in Australia. The Tribunal finds that if the applicant was really pressured and driven by his family to stop his relationship and seek protection in Australia that he would not be taking a holiday in the midst of all the pressure and fear.

9. The applicant arrived in Australia [in] December 2015 and became unlawful [in] March 2015 but did not apply for a protection visa until [February 2016]. The Tribunal finds it concerning that the applicant waited over a year after arriving in Australia to apply for protection. If the applicant was pressured and fearful as claimed he could have sought protection immediately, yet he waited over a year before applying.

Consideration of Claims and Credibility second named applicant

1. The second named applicant is [an age] year female Christian from Sabah Malaysia.

2. The second named applicant claims she met her husband on the street as they lived near to each other and used to see each other on the street. This was on June [2013]. The Tribunal asked if her parents knew she was dating a Muslim and she said yes and they were not happy about it.

3. The Tribunal asked the second named applicant when she got married and she said she got married in [Country 1]. The Tribunal asked if she had a marriage certificate and she said no they were not legally married. A few moments later the second named applicant told the Tribunal that they chose that day to get married but in the end it did not happen and they were not married. This not only contradicts what was in their written claims, but also what applicant one told the Tribunal and what this applicant had also stated during the hearing.

4. The Tribunal asked if she did actually get married in the church and she said yes she did on August [2014]. The applicant said she was confused and the Tribunal asked how she could forget where she got married the applicant said she had a lot of things on her mind.

5. The Tribunal asked the second named applicant who she lived with in Malaysia and she said she lived with her mum in the village and when she was in Kuala Lumpur she lived by herself. The Tribunal asked if she ever lived with her husband in Malaysia and she said no that she never lived with her husband in Malaysia. This contradicts what the applicant told the Tribunal when he stated that they were living together on a share house in Sabah on top of a commercial building. Due to the inconsistency in their stories the Tribunal does not accept that the applicants lived together prior to coming to Australia.

6. At the end of the hearing the second named applicant said they never got married in the church. In fact they are not married at all. The applicant was offering up several different scenarios as to whether or not she was married. The Tribunal does not accept that the applicants are indeed married and after the hearing requested further information from the applicants around their claims to be married.

424A Letter and Response

1. After the hearing the Tribunal was still uncertain as to the details of the marriage or if in fact there was a marriage as their claims for protection were based on the fact that they were married and from different religions. However, during the hearing there was so much inconsistency the Tribunal sought clarity. On 18 January the Tribunal sent an invitation to the applicants inviting them to comment under 424A about adverse information the Tribunal had before it that may be the reason, or part of the reason for affirming the decision under review. The particulars of the information are as follows:

   ·During the Tribunal hearing on 11 December 2017, the Tribunals asked both the applicants the location of their wedding, as their written claims stated they were married and could not stay in Malaysia as they were both “illegal” due to being from different religions and they would not be accepted as a married couple. When the Tribunal asked about where the wedding certificate was the applicant responded it was in Malaysia. However when asked why the certificate wasn’t provided to the Department as part of the application the applicant said we don’t have a marriage certificate we are not legally married.

   ·When the Tribunal asked where the applicant was married the applicant stated in a church in Malaysia. When the Tribunal asked applicant two where she was married she said in [Country 1]. When questioned further she said no, she wanted to get married in [Country 1] but that they didn’t. Upon further questioning she said that they set the date to get married but had not actually gotten married.

   ·The Tribunal asked the second applicant were they married yes or no to which the applicant said no they were not married. The Tribunal said applicant one said you were married in a church to which the second applicant said yes. When asked if they were indeed married in the church where was the certificate and the second applicant said there was not one.

The invitation contained a date of 1 February 2018 in which the applicants should respond to the Tribunal.

1. On 30 January 2018 the Tribunal received a response from the applicants to the 424A invitation to comment. The response is as follows:

• I admit there’s some mistakes and misconduct from the interpreter. I noticed his language mistakes before entering the room. During the hearing session, the interpreter can’t memories our answers and explanation properly. (sic) He tried to ask both of us to shorten our explanation and answer. That make the answer and explanation given from both of us was contradictory. (sic)

• I tried to answer that we try to register our marriage and get the certificate in one of the churches in Borneo but the certificate can’t be used and it’s not accepted because I am still a Muslim. At the same time we plan to get married in [Country 1] and live there but it’s too close to Malaysia and our parents may find us there.

• While the Member was questioning applicant two the interpreter kept making language mistakes. I know he try to do his best but his Malay language is very bad and the way he talks is like watching a broken DVD.

• It made it hard for us especially for applicant two to understand. He is Chinese people from Borneo and mostly Chinese in Malaysia not very good in Malay language because they will mix a Chinese dialect with Malay language. (sic)

• When the Member asked applicant two if the applicant was still a practising Muslim the interpreter asked her if he was still a Muslim. And there were a few more questions that made her confused and give the wrong answer.

• We will be married in a church in Australia and I am still learning Christianity and the bible.

1. The applicants requested that a Malay interpreter be provided for their hearing and a Malay interpreter was provided. At the beginning of the hearing both applicants were asked if they could understand the interpreter and if they had an issue with the particular interpreter. They did not have an issue with the interpreter. In addition the Tribunal asked the applicants if they had any objections to that particular interpreter being used for their hearing. They did not have an issue with that particular interpreter being used. Further, the Tribunal told the applicants that at any time if they were having trouble understanding the interpreter to let the Tribunal know. During the hearing at no point did the applicants indicate to the Tribunal that they were having issues understanding the interpreter. The only time the issue of the interpreter or the skills of the interpreter arose was in response to the 424A letter. The Tribunal does not accept that the applicants had an issue with the interpreter or that they could not understand the interpreter and they were given ample opportunity to let the Tribunal know if they were having difficulty in understanding the interpreter or if they objected to the use of that particular interpreter.

1. The Tribunal is not persuaded by the response received from the applicants as the basis of the applicant’s claims was that they were indeed married as presented in their claims to the department. However the response to the 424A invitation was about the interpreter and they failed to answer the questions asked are they actually married or not. The response was ‘I tried to answer that we try to register our marriage and get the certificate in one of the churches located in Borneo Malaysia but the certificate can’t be used and it’s not accepted as I am still a Muslim. At the same time we plan to get married in [Country 1] and live there but [Country 1] is too close to Malaysia and our parents would easily find us. Yet during the hearing both applicants were inconsistent about whether or not they were married, whether or not they told their parents, and whether or not they lived together in Malaysia.

2. The applicant submitted a translated document of the Enactment No 3 of 1995 Syariah Law Criminal Offences enactment of Malaysia that no man shall marry a non-Muslim. The Tribunal acknowledges that it is a criminal offence in Malaysia for a non-Muslim to marry a Muslim and that converting to Christianity is also a criminal offence. However, the Tribunal does not accept that the applicants are actually married and that the applicant intends to convert from Islam to Christianity.

3. Based on the above, the Tribunal does not accept that the applicants are married. The Tribunal does not accept that the applicant intends to convert to Christianity and the Tribunal does not accept that the applicant told his mother that he was thinking of converting. The Tribunal accepts that the applicant may have attended a Christian church in [Suburb 1] prior to the hearing. The basis of the applicant’s written claims was that they were married and they were not accepted by their families and were pressured and driven by their families to end the relationship. However, the applicants are not married and have not told their parents they are in a relationship. Therefore the Tribunal does not accept that if the applicants return to Malaysia they face a real chance of persecution from the government or their families or anyone associated with them. The Tribunal finds that the applicants do not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicants are not refugees within the meaning of s5H(1).

Complementary Protection First Named Applicant

1. On the basis of the applicant’s claim to be a national of Malaysia and earlier findings about his identity and nationality with regard to his refugee assessment, the Tribunal finds that Malaysia is the applicant’s receiving country for the purposes of s.36(2)(aa).

2. As the Tribunal does not accept that the applicant has a well-founded fear of persecution the Tribunal has considered the alternative criteria in s.36(2)(aa), 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 he will suffer significant harm as defined in subsection 36(2A) of the Act.

3. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Malaysia now or in the foreseeable future due to being married to a Christian or due to the applicant’s contemplation of becoming a Christian.[1] In MIAC v SZQRB, the full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention Definition. It follows that the Tribunal does not accept there to be a real risk that the applicant would suffer significant harm from the Malaysian authorities or anyone else for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia.

Complementary protection Second Named Applicant

[1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

1. On the basis of the second named applicant’s claim to be a national of Malaysia and earlier findings about her identity and nationality with regard to her refugee assessment, the Tribunal finds that Malaysia is the applicant’s receiving country for the purposes of s.36(2)(aa).

2. As the Tribunal does not accept that the second named applicant has a well-founded fear of persecution the Tribunal has considered the alternative criteria in s.36 (2) (aa), whether there are substantial ground for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act.

3. For reasons set out above, the Tribunal has not accepted there to be a real chance that the second named applicant will suffer serious harm if she returns to Malaysia now or in the foreseeable future on the grounds that she is married to a Muslim and does not want to convert to Islam. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. It follows that the Tribunal does not accept there to be a real risk that the second named applicant will suffer significant harm from the Malaysian authorities or anyone else for these reasons as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Malaysia.

DECISION

1. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

2. The Tribunal affirms the decision not to grant the applicants protection visas.

Nora Lamont
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.

…