1621665 (Refugee) - [2017] AATA 1311

1621665 (Refugee) [2017] AATA 1311 (13 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621665
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Christopher Smolicz
DATE:13 July 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 13 July 2017 at 4:10pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Muslim – Social group – Homosexual female – Debtor – State protection not available

LEGISLATION
Migration Act 1958, ss 5H(1), 5J(1), 5K-LA, 36, 65, 423A, 426A(1A)(b), 499
Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473
SZQLV v MIAC [2012] FMCA 337
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 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 Malaysia, applied for the visa [in] August 2016. The delegate refused to grant the visa [in] December 2016.
On 18 December 2016 the applicant applied to the Tribunal to review the decision. The applicant provided the Tribunal with a copy of the decision record.
On 21 April 2017 the Tribunal informed the applicant that it had considered the material but was unable to make a favourable decision on the information before the Tribunal. The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments on 6 June 2017. The applicant did not appear before the Tribunal on the date of the hearing and pursuant to s.426A(1A)(b) of the Act the Tribunal dismissed the application.
On 13 June 2017 the applicant contacted the Tribunal and said that she was unable to attend the hearing because she incorrectly assumed the hearing was listed on 21 June 2017. The Tribunal had regard to the applicant’s submissions and reinstated the application. The applicant subsequently appeared before the Tribunal at a hearing on 21 June 2016.
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).
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 issue in this case is whether the applicant meets the refugee or complementary protection obligations because of her sexual orientation.
Background
The applicant is a [age] year old single woman born in Perak, Malaysia. She declared her ethnicity as Malay and her religion as Muslim.
In the period [year] to [year] she completed schooling in Malaysia. From 1997 to 2014 she claims to have worked as a[occupation].
In the period September 2011 to July 2016 the applicant travelled to Australia on five occasions as the holder of [a temporary] visa.[1] [In] October 2015 the applicant applied for a [second temporary] visa. The Department refused the application.
[1] [Temporary visa details deleted].
The applicant last arrived in Australia [in] July 2016 and her [temporary] visa ceased [in] October 2016. She applied for the protection visa [in] August 2016.
The applicant travelled to Australia on a Malaysian passport. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of s.36(2)(a) and receiving country for the purposes of the complementary protection assessment, s.36(2)(aa).
There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Summary of substantive claims
In support of her claim for protection the applicant said she left Malaysia because the democratic system practiced has ruined the country. Under the leadership of Prime Minister Najib Razak many investors have been shut out, resulting in a lack of public works and unemployment. To continue living people have to borrow money from unlicensed financial companies. She also had to borrow and cannot repay the money as the debt has increased. She does not think the authorities can protect her and she has escaped to Australia.
Tribunal hearing
The applicant said that she has had limited education in Malaysia and was employed a[occupation]. Her family have passed away. The applicant said that she does not want to return to Malaysia because she likes living in Australia where she has close friends. She needs to earn money to help her [relative] in Malaysia who works as a [occupation].
The Tribunal referred the applicant to her protection visa application. The Tribunal explained to the applicant that the written claims were brief and difficult to follow. The applicant said that a friend helped her complete the protection visa application. The applicant said that she signed the form but has little knowledge of what information her friend put in the application. The Tribunal provided the applicant with a summary of the information contained in the application. The applicant conceded that the information did not represent her claims for protection.
The Tribunal told the applicant it was concerned by her evidence. The Tribunal referred the applicant to her application and noted that she has signed a declaration that the information was true and correct.
The applicant said that she wanted to claim protection in Australia because she was a lesbian. The applicant said that her friend who completed the form told her not to declare that she was a lesbian because the Malaysian authorities would find out. The applicant said she did not disclose the information because she feared this would cause trouble for her in Malaysia.
While s.423A of Act requires the Tribunal to draw an inference unfavourable to the credibility of the new claim or evidence, the tribunal notes that the applicant’s evidence about her sexual orientation was given in a completely spontaneous manner.
The Tribunal notes that a number of Federal Court cases refer to the care decision makers must take in assessing credibility. Similarly, Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states in part:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[2]
[2] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
Although it is unusual that an applicant for a protection visa would hide information which is directly relevant to their claims the Tribunal notes that the applicant has not had the benefit of migration advice since she arrived in Australia. She has not had the opportunity to take part in a departmental interview and expand on her claims. In the circumstances the Tribunal accepts that the Tribunal hearing was the first opportunity in which the applicant was able to articulate her true claims in person.
Despite the applicant’s failure to raise the claim at an earlier stage, the Tribunal accepts that the applicant identifies as a lesbian. The Tribunal accepts the applicant’s evidence that she feared disclosing this information in her protection visa application. The Tribunal finds that [the applicant]’s actions in not disclosing details of her sexual identity were unduly influenced by her friend who completed the form. The Tribunal also finds that the applicant’s reasons for non-disclosure appear to be indicative of her fear of the Malaysian authorities becoming aware of her sexual orientation in the event that she has to return to Malaysia.
The Tribunal explained to the applicant that hearings before the Tribunal were confidential. The Tribunal noted that she has previously travelled to Australia on a number of occasions and had previously returned back to Malaysia. The Tribunal asked the applicant to explain what has changed in her life and why did she not want to go back to Malaysia.
The applicant said that in 2011 a friend told her to come to Australia for work. When she was in Australia she became close to an Australian family who provided her with support. She was in a lesbian relationship with a woman in Malaysia at the time and decided to return to Malaysia. The applicant described her relationship in Malaysia as “up and down” and she eventually separated from her partner in 2014.
The applicant said she had another Malaysian friend who had Australian permanent residence and lived in Australia. The friend asked her to help bring her young son from Malaysia to Australia. She returned to Australia in August 2015 and helped her friend.
In Australia she applied for [the second temporary] visa but could not afford to pay the fees. She waited for the Department to refuse the applications so that she could obtain a [refund]. She returned to Malaysia in March 2016.
The applicant said that she was a Sunni Muslim. She has had no involvement in politics in Malaysia.
The Tribunal asked the applicant if she experienced any serious harm as a lesbian woman living in Malaysia. The applicant said that she has never been harmed but it was difficult living as a lesbian in Malaysia and she would only be open about her sexuality with her lesbian friends.
The Tribunal asked the applicant when she first came out as a lesbian. The applicant said she started to identify as a lesbian in 2000 and she had her first lesbian relationship in 2011. The relationship lasted until 2014. It was a private relationship and she could not be an open lesbian in Malaysia.
The applicant said she would experience discrimination in Malaysia because she was as lesbian. The applicant said that her girlfriend’s parents would treat her badly because of the way she looked. When she would go to her girlfriend’s family house she felt uncomfortable although she never openly told anyone she was a lesbian. After further questioning the applicant said that her friend was married and she did not tell her parents that they were in lesbian relationship.
The Tribunal explained to the applicant that it needed to assess her claims looking into the reasonably foreseeable future. The Tribunal noted that that she has not experienced any harm in the past because she was a lesbian. The Tribunal invited the applicant to explain why she believed that she would face serious harm if she returns to Malaysia.
The applicant said that she had planned to travel to Australia with her [girlfriend]. Her girlfriend was married and wanted to stay in Malaysia until her [child] finished school and then she would travel to Australia to meet the applicant. The applicant said that she is worried that if her girlfriend’s husband found out about her relationship he could harm her. Her friend separated from her husband and did not end up traveling to Australia. The Tribunal discussed with the applicant to DFAT’s country information report regarding the Malaysian government’s treatment of the LBGTI community.
Country information
The most recent DFAT Country Information Report (19 July 2016) on Malaysia provides the following information on sexual orientation and gender identity:
3.89 Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).
3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.
3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.
3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.
3.93 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a ‘re-education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government ‘viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.
3.94 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.
Other reports refer to widespread religious and cultural taboos against homosexuals in Malaysia.[3] Activists indicate there is a general lack of acceptance of LGBT individuals in Malaysia.[4]
[3] US Department of State Country Reports on Human Rights Practices for 2014- Malaysia at Huffington Post ‘Malaysia Staunchly Opposes LGBT Rights’ (16 October 2015)
Some reports appear to focus on the situation of Muslim ethnic Malay homosexuals, who are subject to religious or ‘morality’ police and state sharia courts for enforcing alleged Islamic provisions. For instance, the Utopia-Asia website refers to “conservative religion-based discrimination” and has reported that “during raids on local gay businesses, [police have focussed] on ethnic Malay customers, almost 100% of whom are considered Muslim at birth by law”⁴.
The Human Rights Watch World Report 2015: Country Summary Malaysia, describes discrimination against LGBTI persons in Malaysia as ‘pervasive’.[5]
[5] Human Rights Watch 2015, World Report 2015: Country Summary Malaysia, 29 January < <NG5A1E6BC48>

It is reported that the Malaysian government ministries openly campaign against LGBTI through education and media outlets[6] and that some states in particular have run re-education programs for homosexuals[7]. A May 2014 report by the International Gay and Lesbian Human Rights Commission refers to lesbians facing physical and emotional violence from family members, verbal abuse or warning form stranger in public places and job discrimination[8]. A Women’s Aid Organisation 2012 report, Syariah law does not offer protections to lesbian individuals. Women found guilty of lesbianism can be punished by whipping[9].
[6] Freedom House 2016, Freedom in the World 2016: Malaysia, 25 February < Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report: Malaysia, 19 July.
[8] International Gay and Lesbian Human Rights Commission 2014, ‘Malaysia: On the Record: Violence against lesbians, bisexual women and transgender person in Malaysia’, in Violence: Through the lens of lesbians, bisexual women and trans people in Asia, 6 May < Women’s Aid Organisation 2012, CEDAW and Malaysia: Malaysian Non-/government Organisations’ Alternative Report assessing the Government’s process in implementing the UN CEDAW, April, p194.
Freedom House’s Freedom in the World 2015: Malaysia report acknowledges discrimination against the LGBTI community by state and non-state actors. The report indicates that in Malaysia, sharia laws criminalise Muslims for lesbian sexual relations (musahaqah):[10]
While Malaysia may have inherited the British colonial laws that prudishly criminalise consensual anal and oral sex acts (carnal intercourse) between adults, it is the current State's identity politics and the institutional strengthening of Malaysia's Islamization that has witnessed the increasing importance and influence of state-administered syariah (sharia) or Islamic law. Syariah laws criminalise Muslims for lesbian sexual relations (musahaqah), sex between men (sodomy), sex that is considered "against the order of nature" (liwat), and for "posing" or "impersonating" as the opposite sex (e.g., cross-dressing). Government representatives actively reject sexual orientation and gender identity issues as human rights issues in various national, sub-regional (such as, at the Association of Southeast Asian Nations/ASEAN Intergovernmental Human Rights Commission) and international fora."
[10] CIS2F827D91966: 'Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia', in 'Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia', International Gay and Lesbian Human Rights Commission, 6 May 2014.
In September 2014, it was reported that a Malaysian lesbian couple had been arrested by religious officers during a raid on a budget hotel in Johor Bahru, Malaysia. Nine officers from the Johor Islamic Religious Department reportedly raided the women's room as part of a morality raid ahead of the country's national day. According to the article, 'The women were arrested for lesbian sex under section 26 of the state's Shariah law and taken to a police station for booking, then to the religious department's office for further action'. The women 'could face up to three months in jail, six cane strokes and a fine of RM5,000'.[11]
Findings
[11] CX1B9ECAB9843: D Wee, 'Malaysia lesbian couple arrested by religious officers in hotel raid', Gay Star News, 2 September 2014.
The Tribunal has considered the chance or risk of harm that the applicant would face as a lesbian upon return to Malaysia. The applicant’s evidence does not indicate that she has faced any serious or significant harm in Malaysia in the past because of her sexual orientation. She has voluntarily returned to Malaysia in the past. The Tribunal accepts however that the applicant has not directly told her non-homosexual friends or acquaintances in Malaysia that she is a lesbian. The Tribunal accepts that she has not lived openly as a homosexual in her home country. The Tribunal accepts that this may be at least partly due to a fear that she would be ridiculed and discriminated against as a Muslim woman.
The Tribunal notes that s.5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation.
The Tribunal notes that the that High Court has stated that, ‘persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action’. It would be erroneous to require an applicant to take steps, reasonable or otherwise, to avoid offending his or her persecutors, or to modify some attribute or characteristic to avoid persecution.[12]
[12] Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [40] and per Gummow and Hayne JJ at [80].
The Tribunal finds the applicant is a homosexual female and a modification of her behaviour to avoid a real chance of persecution in Malaysia would conflict with a fundamental characteristic of her identity and conceal an innate or immutable characteristic and her true sexual orientation.
The Tribunal finds the applicant has had limited education in Malaysia. She has worked as a [occupation] and has no family support in Malaysia. Having regard to the applicant’s profile as a lesbian Muslim woman from a low social economic background, the Tribunal finds the applicant’s claims of persecution based on her membership of a particular social group is supported by the country reports.
The Tribunal also finds that there is a real chance the applicant would suffer serious harm from her partner’s ex-husband if he found out about the lesbian relationship with his wife.
The Tribunal notes that harm from non-State actors may amount to persecution, regardless of how the persecution is categorised, if the protection of the State is withheld or denied for a Convention reason.[13] The Tribunal has had regard to country information detailed above and finds that if the applicant were to seek police assistance in Malaysia and the police become aware she is homosexual, there is a real chance that police will not act to prevent the persecution or protect the applicant because of her sexual orientation.
[13] SZQLV v MIAC [2012] FMCA 337 (Barnes FM, 24 April 2012) at [77]-[87].
The Tribunal finds that nature of the public discourse of politicians, the police and the media in Malaysia creates a situation of impunity where verbal abuse, bullying and physical assaults on LGBTI persons are considered acceptable.
The Tribunal finds that there is a real chance that the applicant will be subjected to verbal abuse, bullying, sexual assaults and significant physical ill-treatment, amounting to persecution, if she returns to Malaysia now or in the reasonably foreseeable future.
The Tribunal finds that the applicant’s membership of a particular social group, lesbian females in Malaysia, is the essential and significant reason for the persecution, and that the persecution involves ‘serious harm’ as it amounts to significant physical harassment and extreme humiliation as listed in subsection s.5J(5), and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).
Looking into the reasonable foreseeable future, the Tribunal finds that there is a real chance that the authorities in Malaysia will not provide adequate protection for the applicant against the harm she fears. In fact, there is a real chance that the state itself – the police – would be the agents of the feared harm. In these circumstances state protection is not available to the applicant. Having regard to the country information, the Tribunal finds the applicant’s fear of persecution because of her particular social group in Malaysia is well-founded.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Christopher Smolicz
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.
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