1619499 (Refugee)

[2019] AATA 6659

1619499 (Refugee) [2019] AATA 6659 (17 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619499

COUNTRY OF REFERENCE:                   India

MEMBER:Paul Noonan

DATE:17 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 17 September 2019 at 1:40pm

CATCHWORDS
REFUGEE – protection visa – India – political opinion – religion – race – Hindu – inter-faith marriage to Sikh – applicant fears harm from politician he did not support – applicant claims he wrote adverse articles about politician – lack of evidence – credibility issues – fabricated past incidents of harm to achieve migration outcome – no well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are a family comprising the applicant husband (the applicant), the applicant’s wife (who makes no claims for protection and who is referred to in this decision as the second named applicant) and their children (who make no claims for protection). They are all citizens of India and the applicant and second named applicant come from Hoshiarpur, Punjab, India. The applicant applied for the visa on 20 November 2015. The delegate refused to grant the visa, not being satisfied that the applicant is a person to whom Australia owed protection.

3. The applicant first arrived in Australia [in] December 2008 as the holder of a [temporary] visa. He departed Australia [in] January 2009 and arrived back [in] February 2009. He again departed Australia [in] February 2013 and arrived back [in] April 2013.

4. The applicant and the second named applicant attended a hearing before the Tribunal on 24 May 2019 to give evidence and make submissions in support of the review application. The Tribunal was assisted by an interpreter in the Punjabi and English languages.

5. For the reasons that follow, the Tribunal has concluded that the applicants are not persons in respect of whom Australia has protection obligations and affirms the delegate’s decision.         

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. Section 5H of the Act defines a refugee, in the case of a person who has a nationality and is outside the country of their nationality, as a person who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.

9. Under s.5J(1) of the Act 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.

10. Sections 5J(2)–(5) of the Act further define the meaning to be attributed to a well-founded fear of persecution in the following manner:

    (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 the 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.

11. 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’).

12. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act.

13. Section 36(2B) of the Act sets out certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise 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 applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.

    Country of reference

14. On the basis of the applicants’ passports contained on the Department’s file, the Tribunal is satisfied that the applicants are nationals of India. Accordingly, the Tribunal finds that India is the country of reference with respect to the refugee criterion and the receiving country in respect to complementary protection criterion.

    CLAIMS AND EVIDENCE

    The applicant’s oral and written evidence

15. The Tribunal has before it the Department files, [which] includes a copy of the applicant’s protection visa application and the delegate’s reasons for decision. No interview was held by the Department.

16. In his application for a protection visa, the applicant lists his nationality as Indian, his religion as Hindu and his caste as Brahmin. He is educated to tertiary level and holds a Bachelor of [Subject 1] and a Bachelor of [Subject 2]. He wrote that he fears returning to India because he will be persecuted by a local politician named [Mr A] who is a [official] representing [a political party] and also a local district [occupation 1]. He also fears returning to Punjab because of ongoing tension between Sikhs and Hindus. Because of this tension he fears he may be falsely accused of insulting the Sikh holy book or of drug smuggling. He reported his problems with [Mr A] to the police, however they took no action. He also asked the president of Hindu-Brahmin Sabha to take action but no action was taken because he had married a Sikh. He wrote that he moved to Mumbai for a month but could not relax and his family were being caused trouble. He stated that he will be harmed if he returns to India because politicians such as Mr [A] misuse their power and corrupt the police. The authorities will not protect him as he does not have enough money and power to get them to act on his behalf.

17. The Tribunal questioned the applicant in respect to the basis of Mr [A]’s wish to persecute him. The applicant stated that in local elections in March 2003 Mr [A] pressured him to vote for him. He had not subsequently voted for him and after the election Mr [A] had visited his house and threatened to kill him. He has no idea what caused Mr [A] to be wound up against him. He had complained to police but no action was taken. Subsequent to these events, in 2007 he had joined [a publication] as a reporter. He had then drafted an article adverse to Mr [A] exposing corruption in his political dealings. A draft of this article was shared with Mr [A] by his contacts in the newspaper and as a result his supporters made further threats to kill him. He has not retained a copy of the article in question. He claimed he was subsequently attacked in the market by supporters of Mr [A].

18. The applicant then noted that in December 2007 his wife was pushed from a bus and suffered injuries. He believes this attack was carried out by Mr [A]’s supporters. His wife did not report the incident to police and has no evidence in respect to her injuries. They had no plans to seek protection at that stage. In June 2008 he had been arrested and tortured by the police, which he attributed to fall out from his article. He had then decided to apply for a [temporary] visa and leave the country. Upon his return in 2009, due to his mother’s illness, he was visually threatened by Mr [A] while standing at a train station. In 2013 when he had returned again, to honour his mother after she had passed away in 2009, he was at a train station and a few of Mr [A]’s supporters attacked him. He left India after this attack. His wife stayed on in India for a couple more months in 2013 and was subsequently attacked in the market by Mr [A]’s supporters.

19. The applicant confirmed that while he had also raised written concerns in respect to a Mr [B] and Mr [C] who had taken exception to his marrying a Sikh girl and threatened him in 2007, he now held no such concerns in respect to these men. He had not had any further contact with them and it had been many years since those verbal incidents had occurred.

20. The applicant informed the Tribunal that he did have general concerns in respect to the climate in India with regard to his inter-faith marriage. He recounted that in the past he had bene taunted at work in respect to his marriage (which related to his claim against the above mentioned men). He believes the climate of hostility has progressively worsened in India in respect to inter-faith marriages. He confirmed there are no concerns in respect to their immediate families and their inter-faith marriage.

21. The applicant informed the Tribunal that despite his concerns he and his family had planned to return to Delhi in India in 2015. However his sister had warned him not to return as some people had inquired about him. The way they talked made her suspicious as to their motives. 

    Country information

22. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes. The Tribunal has had regard to the DFAT Country Information Report India (dated 17 October 2018).

23. The DFAT Report of 2018 sets out the following relevant information in respect to inter-faith marriage:

    3.42 India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. India has no centralised system for marriage registration. Some states require marriages to be registered by law. Couples may seek to marry under one of India’s personal religious laws, which have been codified according to the requirements of different religions. The Special Marriage Act (1954) is an alternative to each of the various religious personal laws. The Act is available to all citizens who choose to marry outside their faith, and the religion of the parties to an intended marriage is immaterial under the Act.

    3.43 Arranged marriages continue to account for the overwhelming majority of marriages across India. Parents or other family members often assume sole responsibility for deciding whom their children marry, particularly in northern India. Many parents consider arranging a marriage for their children a right and a duty, and may not accept their son or daughter choosing their own spouse. Women face social pressure to marry by their mid-20s and men by their mid-30s. Around one in 1,000 marriages in India ends in divorce, compared with around one in three in Australia, although rates are increasing.

    3.44 Hindu nationalists have increasingly used the term ‘love jihad’ to allege Muslim extremist groups are leading an organised campaign to coerce Hindu women to marry Muslim men and convert to Islam. Activists and politicians, have used traditional and social media to propagate this idea, to threaten and warn Muslims away from marriage to Hindu women and to incite Hindu men to violence against Muslim men. DFAT has found no evidence of Muslim men coercing Hindu women into marriage for the purposes of proselytisation.

    3.45 According to local sources, violence associated with inter-religious or inter-caste marriage is more prevalent in Haryana, Uttar Pradesh and Rajasthan, especially if a Muslim man is involved or the man is from a lower caste than the woman. That said, sources observed that acceptance of marriages outside of castes or religion, or even of marriage partners not chosen by the family, depended heavily on individual family beliefs. Some families, particularly in urban areas, are more accepting, whereas others are extremely conservative and do not allow their children to choose spouses.

    3.46 DFAT assesses that treatment of people in inter-religious or inter-caste marriages varies according to the families involved. In some cases the families of intending marriage partners may perpetrate violence against them.

24. The same report provides the following relevant information in respect to political opinion:

    3.20 Democratic elections for the Lok Sabha, the lower house of parliament, have been held since 1951. The only exception to this was when the Indian Congress Party’s then Prime Minister Indira Gandhi postponed elections during a period of emergency rule from 1975 to 1977. Notwithstanding the scale and complexity of India’s political landscape, and noting some exceptions, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred.

    3.21 India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.

25. The same report provides the following relevant information in respect to Sikhs and tension experienced by Sikhs in their dealings with the majority Hindu religion:

    3.16 Sikhism is a monotheistic religion founded in the Punjab region (now part of both India and Pakistan) in the 15th century. Sikhs consider themselves disciples of the Ten Gurus, beginning with Guru Nanak (1469-1539) and ending with Gobind Singh (1666-1708). According to the 2011 census, the Sikh population of India was approximately 19 million, 1.7 per cent of the total population at that time. Most Sikhs (75 per cent) live in Punjab, where they comprise around 55 per cent of the population.

    3.17 One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984. The Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.

    3.18 In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days that followed, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.

    3.19 Sources agree that, since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination.

    FINDINGS AND REASONS

    Does the applicant have a well-founded fear of persecution should he return to India?

1. The applicant claims to have a well-founded fear of persecution on his return to India on the basis of three grounds. Firstly, he fears harm from Mr [A] and his supporters due to not supporting his political views and then subsequently attempting to expose corruption issues associated with Mr [A]’s politics. Secondly he fears harm from persons who oppose his inter-faith marriage to a Sikh woman. Thirdly he fears harm in Punjab due to ethnic tensions between Sikhs and Hindus.

   Mr [A] and the applicant’s political views

2. In regard to this claim the Tribunal had significant concerns in respect to the applicant’s claim that he retains a well-founded fear of harm in respect to Mr [A] and his supporters. The Tribunal noted that it is uncontested that it has been many years since the applicant has had any confirmed contact with Mr [A]. He gave evidence that he believed several incidents involving himself and his wife and sister were related to Mr [A] but he had no confirmation that this was the case. The Tribunal would expect that if these incidents were related to Mr [A]’s grievances with the applicant, then this would have been made abundantly clear at the time. This caused the Tribunal to doubt that such incidents as recounted by the applicant were in any way linked to Mr [A] and to doubt that they had actually occurred.

3. The Tribunal asked the applicant to forward evidence of Mr [A] and also of the existence of the [publication] to assist in substantiating his claims. The applicant subsequently forwarded articles reflective of the existence of a local politician by the name of Mr [A]. However, he forwarded no links or other evidence of the existence of the [publication]. The Tribunal put to the applicant that it may not find it that he had no copy of his purported article in respect to Mr [A]. The applicant stated it had been lost when he had forwarded the draft to the [publication]. The Tribunal did not accept this explanation as being reasonable. The Tribunal would expect the applicant to have retained a copy of such an article, which was so personal and important to him and about a person whom he claims had threatened his life in the past. As there is no evidence that this [publication] ever existed and no record of the article retained by the applicant the Tribunal concluded that no such article was written by the applicant. This also caused the Tribunal to doubt the applicant’s overall credibility in respect to his claim to fear harm from Mr [A] and also specifically his claim that he fears persecution by Mr [A] due to the article he claimed he wrote about Mr [A], and that there was an increase in violence towards him as a result of him having drafted this article.

4. In addition to this credibility concern, the Tribunal noted that the applicant has no political profile and has never been engaged in political activities. Country information indicates that elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. The Tribunal considered that the applicant has not given any compelling reason why Mr [A] would have targeted him in the first instance or why he would continue to target him. The Tribunal does not accept that the applicant drafted a [article] article adverse to Mr [A]. The Tribunal does not accept the applicant’s assertion that Mr [A] would seek to persecute him over many years merely because he did not support him in an election in 2003 as having reasonable plausibility. Further, in respect to the applicant’s claims of past harm, the Tribunal did not accept that the circumstances as described which led to these claimed incidents of harm have reasonable plausibility. As noted the applicant had no political profile and was not active in politics in 2003. The Tribunal does not accept that a local politician would specifically seek him out and threaten to kill him merely on the basis that the politician had asked him to vote for him and was subsequently unsuccessful at the election. Despite being asked directly to explain why Mr [A] had decided to threaten to kill him, the applicant was unable to provide any form of cogent reasoning for this occurring. The Tribunal does not accept as reasonably plausible that a well-known politician would make a direct personal threat to kill a constituent for no particular reason other than he may not have voted for him. Further the Tribunal has made adverse credibility findings in respect to the applicant’s claimed involvement as a journalist and rejects that he was harmed in the past by Mr [A] or police in respect to his claimed activities in that respect. This is because the Tribunal does not accept that the applicant actually wrote an adverse article in respect to Mr [A] for a [publication]. The Tribunal finds that the applicant has fabricated past incidents of harm in respect to himself and his wife, which he connected to Mr [A], for the purposes of achieving a migration outcome.

5. Overall, after considering the totality of the evidence in respect to this claim, while the Tribunal was prepared to accept that the applicant disagreed with Mr [A]’s politics in 2003, it does not accept that he suffered any past harm as a result of that disagreement or that there is a real chance he would face serious harm from Mr [A] or his supporters for political reasons on his return to India now. 

   The applicant’s inter-faith marriage

6. In regard to the applicant’s claim that, as a member of an inter-faith marriage between a Hindu and a Sikh, he would be subject to harm in the form of societal discrimination and violence the Tribunal notes that the DFAT report of 2018 sets out that reported tension in this respect is focused upon Muslim-Hindu inter-faith marriages, largely driven by Hindu nationalist sentiment. The report does note the general societal potential for violence in respect to such marriages where the person’s families oppose the union. However it is accepted in this case that the applicant and his wife’s families do not oppose the marriage and have made no threats of harm towards the applicant in this respect. The applicant recounted some past discrimination at his place of work in the form of taunting in respect to his marriage however he has no fear of harm in respect to the perpetrators of that taunting. The Tribunal did not consider the applicant’s evidence in respect to people making a single generalised inquiry as to his whereabouts in 2015 with his sister to be indicative of a potential threat of persecution on this ground. There has been no repeat of any such inquiry, which occurred several years ago, and there is nothing to suggest the applicant has any form of profile with any person or persons who may be opposed to his inter-faith marriage. Overall the Tribunal considered that the applicant only referred in a general and non-particularised manner to his fear that he would be looked down upon and be discriminated against because of his inter-faith marriage.

7. As set out in s.5J(4) and (5) of the Act, for conduct to be persecutory it must involve serious harm such as threat to life or significant physical mistreatment or economic hardship that threatens a person’s capacity to subsist. The Tribunal does not accept that the applicant would face hardship to a degree that he would be unable to subsist or that any taunts or discrimination the applicant or his family may face in India will otherwise rise to the level of serious harm. The Tribunal does not accept that there is a real chance that the applicant will face serious harm for reason of his inter-faith marriage should he return to India.

   Sikh-Hindu tension

8. The Tribunal noted that DFAT assesses that since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. The Tribunal considered the applicant’s assertions that he may be framed for insulting the Sikh holy book or for drug smuggling due to this tension to be merely speculation. The country information indicates that a Hindu person is not subject to persecution of any kind because of Sikh-Hindu tensions and indeed there is very little tension currently in effect. The Tribunal does not accept that there is a real chance that the applicant will face serious harm for reason of Sikh-Hindu tension should he return to India.

   Conclusion – refugee claims

9. In summary the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on his return to India either by reason of harm from Mr [A] and his supporters, or by reason of his inter-faith marriage or by reason of Sikh-Hindu tensions.

   Is there a real risk that the applicant will suffer significant harm on his return to India?

10. 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), that being whether on the evidence, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.

11. For the reasons that are set out above, the Tribunal does not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to India.

12. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

13. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

14. 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.

    DECISION

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

    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

    …

    (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.

    …