1621129 (Refugee)

[2017] AATA 1152

1621129 (Refugee) [2017] AATA 1152 (18 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621129

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Angela Cranston

DATE:18 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 July 2017 at 10:27am

CATCHWORDS
Refugee – Protection visa – Political – Bersih protest – Arrested and jailed – Social group – Chinese/Christian women – Discrimination – Indecent assault – Effective police protection –Inconsistent evidence

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
Migration Regulations 1994, 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 [in] November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa [in] August 2016.

3. In her application, the applicant stated as follows:

   My name is [name]. I was born in Malaysia on [date]. There happened the Democratic movement Bersih 4.0 in Malaysia on 29 August 2015. The protesters in Kuala Lumpur had a demonstration, requiring Prime Minister Najib, who was involved in corruption scandals one week ago to step down. On that day, as a supporter of democracy activists, I put on my yellow T-shirt to show my support. When the government sent police to arrest people wearing yellow T-shirt, I was arrested as well. The police locked me in a cell of about 20 square meters with the dozen other prisoners. When I was forced into the cell, all the other prisoners were looking at me. I was so scared. The facility in the cell was very simple. All of us had to sleep on the ground. During the [number] days I was detained, I could hardly eat or sleep. I was also bullied by several inmates. They often found excuses to beat me. I had never had any contact with people like them or things like this. I was often beaten to tears. When they saw I was that weak, they became more presumptuous. I lived in fear in those [number] days. I was feared to be killed. [Number] days later, I was set free.

   On [date] December 2015, when I was selling membership cards at a health club, I met a middle-aged Malay man named [Mr A]. I introduced the benefits of becoming a member to him. He pretended to listen but his eyes kept on my body. Although I felt uncomfortable about that, I had to pretend not seeing that for the sake of commission. Unexpectedly, he became insatiable and pulled me into his arms all of a sudden and said he would join the membership if I spent a night with him. I was so pissed and called the police after slapping him on his face. When the police turned up, they pulled out the monitor and looked through it. However, the police did not punish him. On the contrary, they lectured me that you are wearing too sexy. It’s easy to make man have fantasy. Pay attention to your wearing in the future. Ever since then, I could see [Mr A] every time I worked in the health club and he would say something dirty to me. He even followed and harassed me after work. I was terrified and called the police several times. However the police did not care about that all. They said I was an adult and should know how to protect myself. I should not bother the police for such trifles.

   I did not feel safe in Malaysia. The government officials are corrupted and suppress people’s democracy. The police would not protect the interests of the ethnic Chinese. Whenever something happens, they are always partial to Malays. I felt so unsafe living in Malaysia that I came to Australia in February 2016. I earnestly request the Australian government to understand my situation and approve my application.

4. The delegate refused to grant the visa and the applicant applied for review.

5. The applicant appeared before the Tribunal on 20 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant stated she was [age] and came to Australia [in] February 2016 on a [temporary] visa which she obtained [in] February 2016 which was valid for three months. The Tribunal put to her that it understood that her visa was granted [in] November 2015. She stated that was the date she applied for her passport. The Tribunal put to her that her passport was issued [in] 2015. She stated she received the passport around [date] 2015.

7. The applicant stated she applied for a protection visa [in] August 2016 with the assistance of her Chinese friend who had written her story into English and had read it back to her in Mandarin and it was correct.

8. The applicant stated that in Malaysia she lived with her family in Sabah. She worked in a fitness centre from December 2013 to January 2016 and that there were [number] employees including [number] males.

9. The applicant stated she came to Australia because [Mr A] had sexually harassed and touched her at work. He had joined the gym in August 2014 and thought she had to serve him because she was Chinese. She also stated he spoke about their marrying and her converting to Islam. She stated he asked her how to use the equipment and she got one of the male employees to show him. She stated she reported him to the police around [date] November 2015. She stated he was stalking her, he knew where she lived, he would give her gifts and touch her improperly.

10. The applicant stated he first tried to touch her in November 2014 when she was showing him the equipment and the sauna and smacked her backside. She was shocked and stood away from him. She said he threw a tantrum and he and his friends started lodging complaints to her employer.

11. The Tribunal asked why she needed to show [Mr A] equipment in November 2014 given if he had joined the gym in August 2014. She stated she was not sure as she did not think he wanted to use the sauna because even though he joined in August he did not come until November and on his [number] visit asked her to show him around. She stated from November 2014 onwards he kept touching her and [in] December 2015, he dragged her inside the men’s bathroom and tried to rape her.

12. The Tribunal asked what she did to stay safe and she said she told her family who advised her to report it to the police. The police did nothing because they thought Chinese women did not wear proper clothing and [Mr A] had not touched her. She then stated she rang the police from work.

13. The Tribunal asked what other options she had explored to stay safe at work and asked about the male employees working with her. She stated they were not always on-site.

14. The Tribunal put to her that in her written statement she stated she met [Mr A] [in] December 2015 when she was selling membership to him, he pretended to listen but his eyes were on her body and unexpectedly he grabbed her, that she was really ‘pissed off’ and called the police after slapping him on his face. The Tribunal put to her that may differ from what she had told the Tribunal, which was that [Mr A] had been a member since August 2014, that he had touched her inappropriately since November 2014 and had tried to rape her [in] December 2015.  The applicant stated the [date] December 2015 incident was the most outrageous incident but before that she had reported his behaviour to the police and after he tried to rape her she had slapped him and reported him. The applicant confirmed the December 2015 and another incident were the reasons she came to Australia. The Tribunal put to her that she had applied to come to Australia before the December 2015 incident. She stated his behaviour meant that she was always thinking of taking a break and it was beyond her imagination that he would do such a thing. The Tribunal again put to her that she had applied for the Australian visa [in] November 2015 which was before she said things had happened to her in December 2015 and that in addition, she had not come to Australia until [date] February 2016. She stated she was certain these things happened to her and she resigned in December 2015 and left her work place in January 2016. The Tribunal again put to her that she had the visa from November 2015. She said she was thinking of coming to Australia on holiday for [number] month. The Tribunal also put to her that it may find her departure from Malaysia orderly and not consistent with someone who fled. The Tribunal also put to her that it may find her written statement inconsistent with her evidence at hearing and may not be satisfied [Mr A] had attacked her. The Tribunal also put to her that DFAT had said that women in Malaysia faced a high risk of societal and official discrimination and violence, particularly domestic or intimate partner violence but they also said that the police were accredited with being a professional and effective force but that their response may depend on levels of training, capacity or engagement in corruption. The Tribunal also indicated that even if it accepted that there was some risk of violence against women the Tribunal may find the police were an effective force that tried to assist.

15. The applicant stated Chinese women in Malaysia did not have rights. The Tribunal put to her DFAT had said that Chinese Malaysians generally did not experience discrimination or violence on a day-to-day basis however they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service. The applicant stated she did not think that Chinese women had any rights and Malays thought it was alright to sexually harass Chinese.

16. The applicant stated she could not go back to Malaysia because she lived in a very small place and that would affect her ability to find work and as a Chinese woman she did not have any rights because Malay Muslims thought they did not wear the proper clothing and discriminated against them and wanted them to convert to Islam.

17. The Tribunal put to her that it may not accept that she had been attacked given that it may find that her evidence at hearing was inconsistent with her written statement and that her [temporary] visa had been granted before she was allegedly attacked.

18. The applicant also stated that [in] August 2015 she had participated in an anti-government protest and because she was the only Chinese/Christian there she had been beaten and bullied and told she must convert. She stated she was wearing the yellow shirt and protesting against the government in Kota Kinabalu and broke the law and was locked up for [number] days and she was jailed together with [number] Malays who beat her and she also didn’t have any food. She stated they were released [later in] August 2015. The Tribunal put to her that in her statement she had said that the protesters in Kuala Lumpur had a demonstration and on that day as a supporter of democracy she wore a yellow shirt. She stated protests were held in different cities and many people protested. The Tribunal put to her that it understood that lots of Chinese Malaysians protested and that she was not the only Chinese Malay protesting. She stated many ethnicities participated. The Tribunal asked if there was any violence and she stated yes. The Tribunal put to her that the reports before it said there was no violence, and that the protest was peaceful. She stated that was not correct and the police had arrested the yellow shirts. The applicant stated she had not been involved in any other protest.

19. The Tribunal put to her that DFAT said that protesters faced a low risk of arrest when engaged in political rallies and that such individuals had commonly been released on bail shortly following their arrest but that high profile organisers faced a moderate risk of official discrimination and could be charged and that the Tribunal would take this into account in determining whether she was telling the truth. She stated protesters were arrested where she was and protesters were also arrested in Kuala Lumpur and that if the authorities saw a yellow shirt they would be arrested.

20. The Tribunal put to her that it may not accept what she said was true given that DFAT said protests in Kuala Lumpur were peaceful, but that smaller rallies had been held outside the capital with a small number of arrests. She stated she was told when she was arrested that she would be released [in] August.

21. Following the hearing the Tribunal wrote to the applicant pursuant to section 424A as follows:

    Movement records indicate you arrived in Australia on [date] February 2016 on a [temporary] visa that was granted [in] November 2015.

    This is relevant because the Tribunal may find that you obtained a [temporary] visa before you were allegedly attacked at the health club. If the Tribunal finds that you obtained the [temporary] visa before you were allegedly attacked at the health club, then the Tribunal may not accept that the reason you came to Australia was because you were attacked and subject to your comments, would affirm the decision under review.

22. The applicant failed to respond within the requested time.

Country Information

1. According to DFAT

   Bersih

   3.61 Individuals have been arrested for organising or engaging in rallies in contradiction with the law and the Royal Malaysian Police have on occasion used excessive force to control crowds. Bersih, a coalition of 62 NGOs, organised a series of rallies calling for improved government transparency free and fair elections in 2007 (Bersih 1), 2011 (Bersih 2), 2012 (Bersih 3) and 2015 (Bersih 4). The rallies attracted thousands of protesters and were supported by opposition parties.

   3.62 The Bersih 4 rallies on 29 to 30 August 2015 saw approximately 100,000 people, mostly opposition parties and their supporters, civil society activists and Chinese Malaysians, take to the streets in Kuala Lumpur to call for the resignation of Prime Minister Najib in light of 1MDB corruption claims. The protest was peaceful and no violence was reported, despite the government declaring the protest illegal and banning the yellow t-shirts with ‘Bersih’ print that were worn by the protestors. Smaller rallies were also held in Melacca, Penang, Kuching, Kota Kinabalu with a small number of arrests. This was an improvement on the July 2011 Bersih 2 protest where the police used tear gas and water cannons to break up the protest and made approximately 1,500 arrests.

Women

3.79 Women participate in all areas of Malaysian society, including government, business and civil society. However, cultural and social barriers limit their levels of participation. There are currently three female cabinet ministers (out of 36), 23 females in the lower house (out of 222) and fourteen senators (out of 60). According to the Asian Development Bank, Malaysia has the lowest rate of women’s participation in the workforce in Southeast Asia. Overall, DFAT assesses that women in Malaysia face a high risk of societal and official discrimination and violence, particularly domestic or intimate partner violence.

Royal Malaysian Police (RMP)

5.5 The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see ‘Police Integrity and Accountability’, below). The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.

Chinese Malays
3.10 DFAT assesses that Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.

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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Malaysia, there is a real risk she will suffer significant harm.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. In her application the applicant stated that [in] December 2015, when she was selling membership cards at a health club, she met [Mr A] who unexpectedly pulled her into his arms and said he would join if she spent a night with him and that after that, every time he saw her at the health club he would say something dirty to her, and even followed and harassed her after work, however at hearing she stated [Mr A] joined the gym one year before in August 2014, that he had first tried to touch her in November 2014 when she was showing him the gym and sauna equipment and that from November 2014 onwards, he had kept touching her and that [in] December 2015 he had tried to rape her.

3. The Tribunal finds that the applicant’s evidence at hearing is significantly inconsistent with her statement in relation to events such as when [Mr A] joined the gym, when and the circumstances under which he first tried to touch her as well as the extent to which he tried to touch her including whether he tried to rape her. The changing nature of the applicant’s evidence in relation to when, under what circumstances and the extent to which [Mr A] tried to touch her is such that the Tribunal does not accept that the applicant is telling the truth and considers she is making up her evidence as she goes along. In reaching this conclusion the Tribunal has also considered that at hearing the applicant stated that part of the reason she decided to come to Australia was because [Mr A] had allegedly tried to rape her, however movement records indicate the applicant was granted her Australian visa [in] November 2015 which was before [Mr A] allegedly tried to rape her. 

4. The Tribunal is not satisfied that the applicant has been assaulted in the past and is of the view that she is not credible. Because the Tribunal does not find the applicant credible, it does not accept that [Mr A] joined the gym, nor that [Mr A] had been a member since August 2014, nor that he had stalked or touched her inappropriately since November 2014 and nor that he tried to rape her [in] December 2015. Neither does it accept that the police failed to assist.

5. While the Tribunal accepts that the country information suggests women in Malaysia face societal and official discrimination the country information also suggests this particularly relates to domestic or intimate partner violence and the applicant has not suggested this is relevant to her. In these circumstances, the Tribunal is not satisfied that there is a real chance that the applicant will be persecuted because she is a woman or a Chinese/Christian woman. Neither is the Tribunal satisfied that if she receives threats then the police will not protect her because DFAT has stated that the Malaysian police have been accredited with being a professional and effective force. In these circumstances, the Tribunal finds that there are effective protection measures available. Accordingly, the Tribunal does not accept that the applicant will be denied police protection or that she will be persecuted because she is a woman, or a Chinese/Christian woman.

6. While the applicant has also stated that she is not treated fairly as a Chinese/Christian and that the police will not protect her because she is a Chinese/Christian, DFAT has also stated that Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis and the Tribunal does not accept that there is a real chance that the applicant will be denied police protection or that she will be persecuted because she is Chinese or Chinese/Christian.

7. The applicant has also stated that she joined Bersih and that because she wore a yellow t shirt [in] August 2015, she was arrested and jailed. She has also stated that the demonstrations were violent however the country information before the Tribunal suggests that the demonstrations were not violent and protesters faced a low risk of arrest when engaged in political rallies and that only high profile organisers faced a moderate risk of being charged. In sum, the Tribunal finds that the country information before the Tribunal does not support the applicant’s statements that the government was arresting people because they wore yellow shirts or that the demonstrations were violent. Although the Tribunal accepts that some people were arrested on that day, the country information suggests that these people were more likely to be high profile organisers only. 

8. The Tribunal finds that the applicant provided details about the violence and arrests at Bersih that are inconsistent with the country information. The Tribunal does not accept that the applicant was part of Bersih or that she attended demonstrations.  The Tribunal does not accept that the applicant was jailed or that she was subsequently bullied and mistreated or that she holds an anti-government political opinion consistent with the Bersih ideology, or that she has or will express anti-government opinions in the future.

9. The Tribunal also finds that given that the applicant has worked in Malaysia, there is nothing in the applicant's past employment that suggests that she will be denied employment opportunities commensurate with her experience. Although the Tribunal finds that based on the DFAT report, that the applicant may face low levels of discrimination because she is Chinese/Christian the Tribunal is not satisfied, on the available evidence including her past employment and the DFAT report, that there is a real chance that the applicant will be denied access to work for reasons of her race, religion, gender, age, political views or for any other reason, in finding, obtaining or maintaining employment and does not give rise to a well-founded fear of persecution as defined by s.5J.

10. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugee definition.

11. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

12. 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). While the Tribunal accepts that the country information suggests women in Malaysia face societal and official discrimination the country information also suggests this particularly relates to domestic or intimate partner violence and the applicant has not suggested this is relevant to her. In these circumstances, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm because she is a woman or a Chinese/Christian woman Neither is the Tribunal satisfied that if she receives threats then the police will not protect her because DFAT has stated that the Malaysian police have been accredited with being a professional and effective force. In these circumstances, the Tribunal does not accept that the applicant will be denied police protection or that there is a real risk she will face significant harm.

13. While the applicant has also stated that she is not treated fairly as a Chinese/Christian and that the police will not protect her because she is a Chinese/Christian, DFAT has also stated that Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis. While the Tribunal accepts she may face low levels of discrimination, the Tribunal is not satisfied that the applicant will be denied police protection or that there is a real risk the applicant will suffer significant harm as defined in s36(2A) and s5(1).

14. The Tribunal also finds that given that the applicant has worked in Malaysia, there is nothing in the applicant's past employment that suggests that she will be denied employment opportunities commensurate with her experience or that that there is a real risk the applicant will suffer significant harm as defined in s36(2A) and s5(1).

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

16. 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 criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Angela Cranston
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.

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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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