1613287 (Refugee) - [2019] AATA 5262

1613287 (Refugee) [2019] AATA 5262 (9 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613287
COUNTRY OF REFERENCE:                   India
MEMBER:Paul Noonan
DATE:9 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 09 April 2019 at 1:48pm

CATCHWORDS
REFUGEE – protection visa – India – complementary protection – domestic violence – divorce and inter-caste marriage – status of women in India – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(aa), 65
Migration Regulations (Cth), Schedule 2
CASES
Basa v MIMA (unreported, Federal Court of Australia, Sackville J, 17 July 1998)
Jayawardene v MIMA [1999] FCA 1577
MIAC v MZYYL (2012) 207 FCR 211
Milosevska v MIMA [1999] FCA 1414
MIMA v Khawar (2002) 210 CLR 1
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India applied for the visa on 8 September 2015. The delegate refused to grant the visa on the basis that the applicant does not have a well founded fear of persecution and that effective protection measures are available to her in India against persecution and significant harm.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
In this case, the Tribunal has found that the applicant is a national of India and the Tribunal therefore finds that India is the ‘receiving country’ for the purposes of s.5(1) of the Act.
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.
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
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
The applicant presented considerable new evidence to the Tribunal in respect to her current circumstances which was not before the Department previously. The Tribunal considered that the applicant gave her evidence to the Tribunal in an open and direct manner and that she was entirely credible. Further that her evidence was delivered in a manner consistent with and reflective of a person who has suffered significant trauma. Despite the considerable emotional distress displayed by the applicant in giving her evidence, the Tribunal found that she was able to deliver her evidence without undue hindrance from that emotion, such that she was able to impart her story to the Tribunal in a cognisant manner.
A brief relevant history of the applicant is as follows. She first arrived in Australia [in] August 2009 on a [temporary] visa. She was accompanied by her husband [Mr A]. [In] April 2010 she departed Australia and arrived back [in] July 2010. [In] June 2011 she divorced her husband. [In] July 2013 she married [Mr B]. On 8 September 2015 she lodged her claim for protection.
The applicant told the Tribunal that upon first arriving in Australia [Mr A] became violent towards her. He was subsequently issued with an Intervention Order. In early 2010 she travelled to India to discuss her problems with [Mr A] with her family. While she was there she was verbally abused by [Mr A]’s cousin who told her to go back to Australia to be with [Mr A]. She was also assaulted on the street and was hit on the back of the head and back by a friend of [Mr A]. She reported the assault to police. However the police refused to take action and told her that her family and [Mr A]’s family need to be involved in the complaint. However [Mr A]’s family were hostile to her and her own family disagreed with her decision to leave [Mr A]. Her family told her to return to Australia to be with him and maybe he will change. She subsequently returned to Australia as she felt very unsafe in India. However she did not return to [Mr A].
The applicant then met [Mr B] at her place of work at [Employer]. She subsequently married him in July 2013. [Mr B] is [Caste 1] and she is [Caste 2]. When her family found out she had divorced [Mr A] and remarried a man of a lower caste they completely cut her off. She has had no contact with her family since then. [Mr B]’s family also opposed the marriage and cut him off. [Mr B] became very resentful of this and his lack of support from his family who are quite wealthy despite their low caste status. He began to drink a lot. When he drank he turned violent and repeatedly assaulted her, blaming her for his problems. When the violence escalated to an intolerable extent she took out an intervention order. [Mr B]’s violence towards her continued and eventually resulted in [Mr B]’s arrest by police, prosecution and gaoling. Upon his release he lost his right to reside in Australia and has consequently returned to India. To this day she receives constant calls from [Mr B] on [Social media] which she does not answer. He will often call several times a day. He will also occasionally leave an abusive text message. She fears that if she returns to India [Mr B] will seek to resume his abuse of her and that she will lose her life. She also fears that [Mr A] and his family will also seek to kill her should they find she has returned to India. She is completely estranged from her own family and will be afforded no protection from them. Should she return to India she will be single and without any means of support and would be forced to live with her husband to survive, however he would certainly resume his pattern of abuse of her and she would likely lose her life to him. She submitted that she will not be afforded protection from the authorities in India. The risk of harm is posed by her husband and her ex-husband and their respective families. The legal system does not allow her to access an intervention order or seek other forms of protection from such a situation.
The applicant submitted to the Tribunal evidence of Australian police intervention orders in respect to [Mr A] and [Mr B]. She presented evidence of her hospitalisation at [Hospital] presenting with symptoms reflective of severe assault. She presented evidence of [Mr B]’s prosecution and goaling for assault and breach of intervention orders against her. She presented photographs of [Mr B] collapsed and covered in blood. She stated the blood he was covered in was hers as a result of injuries he had inflicted upon her. She submitted that [in] November 2011 [Mr B] approached her while she was in her car and smashed the windows assaulted her and repeatedly punched her such that she became unconscious. He dragged her onto the road. Someone called an ambulance and she was admitted to hospital, records of her hospitalisation and treatment were presented to the Tribunal. Again [in] March 2017 [Mr B] smashed her car, photos of which she presented as evidence. She gained an intervention order against [Mr B] however he assaulted her further resulting in his eventual goaling in early 2017.
The Tribunal notes that the applicant presented a record of texts and [Social media] missed calls from [Mr B] since he has returned to India. These calls have been made consistently and in a manner symptomatic of obsessive behaviour being several times a day on many occasions. Text messages recorded also contain abusive language towards the applicant.
The Tribunal accepts on the evidence before it that the applicant suffered violence from [Mr A] when she resided with him in Australia. The Tribunal accepts as credible that she was attacked by members of her ex-husband’s family and friends when she returned to India in 2010. Further the applicant suffered significant levels of violence from [Mr B] when she resided with him in Australia culminating in him receiving an Australian custodial sentence in 2017 and subsequent removal from Australia to India. Since then [Mr B] has continued to threaten and harass the applicant. The Tribunal accepts that the applicant has a well-founded fear of severe harm from [Mr B], [Mr A] and [Mr A]’s family and friends should she return to India.
The Tribunal must consider whether the motivation for the aggressors can be attributed to reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal considered the applicant faces persecution from [Mr A] because of his unfortunate propensity for violence against her. Further the applicant also faces a risk of persecution from [Mr A] and his family and friends due to the applicant’s action to divorce [Mr A] which neither [Mr A] nor his family agreed. The Tribunal also considered the applicant faces persecution from [Mr B] due to his unfortunate propensity for violence against her.
The Tribunal considered the circumstances of this case closely reflect circumstances previously considered in the Federal Court in the case of Basa v MIMA. In this case The Tribunal found the serious harm feared was not for a Convention (refugee) reason but arose from the applicant’s former relationship. Sackville J held that the Tribunal’s finding was justified, perhaps inevitable, on the material before it, adding:
The applicant did not face persecution because she was a Filipino woman, but because of the unfortunate circumstances of her relationship with [her former lover] and his apparent propensity for violence.[1]
[1] Basa v MIMA (unreported, Federal Court of Australia, Sackville J, 17 July 1998) at 9. See also Jayawardene v MIMA [1999] FCA 1577 (Goldberg J, 12 November 1999) and Milosevska v MIMA [1999] FCA 1414 (Kiefel J, 15 October 1999) at [8].
After carefully considering the evidence before it the Tribunal did not consider the violence feared by the applicant is motivated by a refugee reason, rather it is motivated by the circumstances pertaining to her former relationships. While she did note her own family objected to her marriage to [Mr B] on caste grounds, and that she was ostracised by them as a result, she does not hold a fear of persecution from her own family should she return to India.
The Tribunal must now consider whether state protection from serious harm will be selectively and discriminatorily withheld from the applicant due to a refugee reason. The applicant gave evidence that she reported an assault by [Mr A]’s cousin to police and was told she must present with her husband and her own family for the matter to be taken further. The latest Department of Foreign Affairs and Trade (DFAT) Country Information Report on India highlights significant problems in India for women in respect to rates of domestic violence. At point 3.34 the report notes that some women complain that police refuse to file reports of sexual violence.[2] However the report also notes that section 15 of the Indian Constitution protects citizens from state discrimination on the basis of sex.[3] Further the State has enacted the Protection of Women from Domestic Violence Act (2005) which requires the states to provide shelters, counselling services and legal aid to survivors. [4]
[2]     Department of Foreign Affairs and Trade Country Information Report – India, 17 October 2018, p. 17
[3]     Department of Foreign Affairs and Trade Country Information Report – India, 17 October 2018, p. 10
[4]     Department of Foreign Affairs and Trade Country Information Report – India, 17 October 2018, p. 17
In the case of MIMA v Khawar (2002) 210 CLR 1 at [26]; Gleeson CJ considered that it would not be sufficient to show maladministration, incompetence, or ineptitude by local police; but if an applicant could show state tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law, then the Convention (refugee) test may be satisfied. The Tribunal considered that the evidence before it certainly indicates likely ineptitude by local police in dealing with the violence described and feared by the applicant, however the Tribunal did not consider the evidence before it demonstrated state tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law or withholding of protection for a refugee reason.
Due to the above reasoning the Tribunal concluded that the applicant’s fear of persecution is not for a refugee reason and that state protection will not be selectively and discriminatorily withheld from her due to a refugee reason. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a),the Tribunal considered the alternative criterion in s.36(2)(aa). This requires the Tribunal to consider whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm.
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.
Under s.36(2A)(a), a person will suffer significant harm if that person will be arbitrarily deprived of his or her life. The Oxford Dictionary of English defines ‘arbitrary’ as: ‘based on random choice or personal whim, rather than any reason or system’ or ‘(of power or a ruling body) unrestrained and autocratic in the use of authority’.[5]
[5] Oxford Dictionary of English (Oxford University Press, 2^nd edition, 2005).
The Complementary Protection Guidelines refer to arbitrary deprivation of life as also involving elements of injustice, lack of predictability, or lack of proportionality and say that the concept of arbitrariness is broader than unlawfulness.[6] The Guidelines provide various examples of circumstances in which potential harm may or may not be characterised as ‘arbitrary deprivation of life’, but emphasise that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are ‘extremely widespread conditions of violence and systematic breakdown of law enforcement, coupled with a particular risk to the individual in question’ before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life.[7]
[6] Department of Home Affairs, Complementary Protection Guidelines, section 12.1, as re-issued 21 May 2015.
[7] Department of Home Affairs, Complementary Protection Guidelines, sections 12.1 and 33, as re-issued 21 May 2015.
The Tribunal noted that DFAT reports that traditional social practices and the low status of women in many parts of India result in domestic and gender-based violence. Further, that in traditional rural areas, senior community members or village committees have reportedly arranged gang rapes of women as punishment for their families’ perceived misconduct in a number of incidents, according to human rights NGOs. According to the Asia Foundation, almost 400,000 women and girls have been abducted in the past decade. Rates are reportedly much higher in northern states with highly unbalanced child sex ratios, and involve women and girls of low castes, especially Dalits. The offenders (sometimes from higher dominant castes) abduct the women and girls for rape, sexual trafficking and forced marriage. Victims and their families generally remain silent due to shame and fear of reprisal. Sources reported a low incidence of police action in these cases, attributed to police bias towards higher castes and a tendency to dismiss the victims due to their lower caste.[8] The Tribunal concluded from this country information that there is extremely widespread conditions of violence in respect to women and a breakdown of law enforcement in respect to violence against women in India in particular with respect to domestic violence. Further the Tribunal noted that there is a particular risk to the applicant in respect to the circumstances she would face should she return to India.
[8] Department of Foreign Affairs and Trade Country Information Report – India, 17 October 2018, p. 17-18
The applicant fears severe assault and death at the hands of [Mr A] and his family and friends and from [Mr B] should she return to India. Given the history of violence perpetrated against the applicant by her feared persecutors and the continued threatening behaviour from [Mr B] the Tribunal accepted there is a real risk of future significant harm to the applicant as a necessary and foreseeable consequence of the applicant being removed from Australia to India. The Tribunal considered that the perpetrators past and present behaviour shows that they are highly motivated to track down and harm the applicant. The Tribunal concluded that the harm feared by the applicant constitutes significant harm under s.36(2A)(a).

The Tribunal noted that the applicant faces harm specifically due to circumstances pertaining to her former relationships. The Tribunal considered there is no reasonable modified conduct that the applicant could undertake to avoid this threat of harm.
Section 36(2B) qualifies s.36(2)(aa) by setting out three circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm in a country.
The circumstances are:
·where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
·where the applicant 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
·the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
In respect to relocation the Tribunal noted that if the applicant returned to India and sought to relocate she would do so as an economically vulnerable women fleeing domestic violence.
In considering whether it is reasonable for the applicant to relocate the applicant stated that she would be unable to survive in India by herself and would be forced to live at severe risk of significant harm with her husband. The Tribunal noted that DFAT assessed that requirements to provide details of a husband’s or father’s name can exclude domestic violence survivors from government services and accommodation.[9] The Tribunal noted that the applicant is estranged from her father and her husband. Further the applicant has a limited education and employment history. She gave evidence that she is currently reliant upon the goodwill of friends in Australia to survive and is without access to financial resources. The Tribunal considered the applicant will have significant difficulties accessing accommodation and government services in attempting to relocate in India and that she would have very limited resources to attempt to overcome such discriminatory practices. The Tribunal accepted that under such circumstances the applicant would likely be forced to attempt to live with her husband as a last resort for survival. In such circumstances she will be exposed to a real risk of significant harm. The Tribunal concluded that under such circumstances it is not reasonable for the applicant to relocate to another part of India.
[9] Department of Foreign Affairs and Trade Country Information Report – India, 17 October 2018, p. 27
In MIAC v MZYYL the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[10] DFAT assess that marital rape continues to be legal in India and that some women complain that police refuse to file reports of sexual violence and that according to Human Rights Watch, many women fail to report violence for fear of retribution.[11] Given this recent country information the Tribunal was not satisfied that the level of protection afforded to the applicant by the authorities would reduce the risk of significant harm to something less than a real one.
[10] MIAC v MZYYL (2012) 207 FCR 211 at [40].
[11] Department of Foreign Affairs and Trade Country Information Report – India, 17 October 2018, p. 17
Finally the Tribunal has already found that the applicant faces harm due to characteristics that distinguish her from the general populace as the risk of significant harm she faces is due to her past relationships which are characteristics particular to her.
Both s.36(2)(a) and s.36(2)(aa) refer to persons in respect of whom Australia has protection obligations. Section 36(3) of the Act qualifies these criteria, by providing that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. However s36(3) does not apply where there are substantial grounds for believing that there would be a real risk of significant harm to the applicant in that country.
India agreed the Treaty of Peace and Friendship in 1950 with Nepal. In essence this treaty allows for Indians to move freely to Nepal and to enjoy equal rights to Nepalese citizens. As such the applicant may have a right to enter and reside in Nepal. However the Tribunal noted that she would do so as a single woman who is economically vulnerable. The Tribunal noted that DFAT has recently assessed the situation in respect to women in Nepal with points particularly pertinent to the applicant’s situation as follows[12]:
·3.64 Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking. Nepal’s laws contain a narrow definition of rape and have a 180-day limitation period for filing complaints. Penalties for marital rape are low and the crime is rarely reported. The 2017 criminal code set new, higher gaol sentences for rape, however DFAT is not aware of whether this provides an effective deterrent. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement though informal justice mechanisms, particularly in rural areas.
·3.69 The mistreatment and killing of women for allegedly practising witchcraft is still prevalent in Nepal. Allegations of witchcraft most often relate to the onset of sickness or death amongst people and animals. Diseases spread through epidemics are also believed to be related to black magic. Victims are often beaten and forced to consume human excrement. Victims are usually poorly educated, economically vulnerable, from low-castes with little support around them. Widows are particularly vulnerable. Women do not often report cases because of a fear of being abandoned by their families and ostracised from their communities.
·3.75 DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.
[12] Department of Foreign Affairs and Trade Country Information Report – Nepal, 1 March 2019, p. 22-23
In respect to state protection the Tribunal noted that DFAT assesses that police effectiveness in Nepal is limited by a lack of resources, corruption, nepotism and a culture of impunity, particularly among low-level officers. Nepali police agencies are hindered by a lack of adequate transportation, training, and equipment. Many crimes in rural areas occur with inadequate police intervention or follow-up.[13]
[13] Department of Foreign Affairs and Trade Country Information Report – Nepal, 1 March 2019, p. 29
The Tribunal considered that the country information in respect to Nepal, in so far as it applies to the applicant’s status as a single woman who is economically vulnerable, demonstrates that there are substantial grounds for believing that there would be a real risk of significant harm to the applicant in that country. Further that she would not be provided adequate protection from the authorities which would reduce the risk of significant harm due to their limited effectiveness as assessed by DFAT. The situation facing the applicant applies generally in Nepal and as such relocation to any particular part of Nepal does not reduce the real risk of significant harm. Finally the Tribunal was satisfied that the risk faced is particular to the circumstances of the applicant and is not one faced by the general population.
Accordingly under subsection 36(4)(b) the Tribunal was satisfied that s.36(3) does not apply to the applicant.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Paul Noonan
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
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(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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