1703324 (Refugee)

[2020] AATA 712

1703324 (Refugee) [2020] AATA 712 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703324

COUNTRY OF REFERENCE:                   Nepal

MEMBER:Luke Hardy

DATE:6 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2020 at 5:35pm

CATCHWORDS
REFUGEE – protection visa – Nepal – father’s political profile – targeted by Maoists – home invasion and demand for revolutionary taxes ­­­­– ­­­­­­ splinter group activity – credibility concerns – discrepancies in dates – inconsistencies in claimed living arrangements – psychologist’s report – no harm suffered by family members in Nepal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 426
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The [applicant], is a citizen of Nepal. He first entered Australia on a student visa [in] March 2008. He departed again, evidently for [Country 1], [in] December 2009 and re-entered [in] January 2010. In 2010 and 2012 he applied for and was granted further study visas. He later applied for a temporary [skilled] visa but the application was refused on 14 November 2013. He sought review of that decision by the former Migration Review Tribunal (MRT) but did so outside of the statutory time limit. The MRT found it had “no jurisdiction” on 16 July 2014.

3. [The applicant] lodged a protection visa application more than two years later on 21 September 2016. The Minister’s delegate in this case refused to grant the visa on 31 January 2017.

4. [The applicant] appeared before the Tribunal on 28 February 2020 to give oral evidence and present arguments. He is not represented. He also brought with him a friend, [Mr A], who he intended to present as a witness.

5. Having regard to s.426 of the Act, I considered and had regard to [the applicant]’s wishes regarding his intended witness. In the course of my consideration, I asked [the applicant] and [Mr A] some questions about how and how long they had been acquainted. From the responses provided, I ascertained that the two had been acquainted since 2010, having met in Australia when [Mr A] was working in a [certain] capacity. I asked [the applicant] what he might like [Mr A] to discuss, noting that they had evidently not been acquainted back in Nepal and positing that, since they were first acquainted in 2010 in Australia, [Mr A] might not be able to provide independent, let alone eye-witness evidence regarding [the applicant]’s claimed experiences in Nepal. This was not rebutted. [Mr A] did nevertheless say that [the applicant] had told him that his, [the applicant]’s, father was previously [an official] in Nepal and that he, [Mr A], had been able to verify this because his own father was, or had been, [an official]. The point to note here is that the profession and profile of [the applicant]’s father as an [official] in Nepal was relevant to [the applicant]’s claims.

6. Drawing attention to documentary and photographic evidence in [the applicant]’s file, along with statements describing his father as [an official], I said that I had no difficulty accepting already that evidence. Having heard from [Mr A], and said that I accepted that [the applicant]’s father was an [official] as claimed, I invited comment on the position that on the information provided it appeared there might not be any other way in which [Mr A] might be helpful as a witness. [The applicant] acknowledged that there were no other facts in relation to which [Mr A] might assist. I asked [the applicant] if he wished for [Mr A] to remain in the hearing room or not and he said he would prefer [Mr A] to remain. Noting [the applicant]’s description of [Mr A] as a friend who had helped him and even supported him financially during a past “crisis”, I allowed [Mr A] to remain in the hearing room throughout the hearing in a social support capacity.

7. [Mr A]’s presence at the hearing calls to mind a document located in [the applicant]’s original protection visa application file: a [May] 2017 report from a counselling psychologist. The report contains a summary of claims made by [the applicant] to its author, and I shall return below to some of its details. The same document also states that [the applicant] reported symptoms of depression, stress and anxiety. It concludes:

   It is hoped this report can adequately help explain [the applicant]’s difficult & stressful situation – so that it can be taken into account and be given due consideration on compassionate grounds re his academic failures & non-attendance over the time of his student visa – so that this does nor prejudice his application for a Protection Visa.   

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).

11. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

12. 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

13. 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 issues

14. The main issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.  

15. For the following reasons, I have concluded that the decision under review should be affirmed.

    Claims

16. In short, [the applicant] claims that during the civil war between the state and the Maoist movement in Nepal, which ended in an accord signed 2006 and the inclusion of the Maoist party into the democratic political process,[1] his family home in Kathmandu was invaded by two armed men who demanded that his family pay them a large amount of money on a regular basis. The demand as described by him appears to have been for revolutionary “taxes” or “tithes” which the Maoists were notorious for demanding, particularly from landowners and the middle class in towns and rural areas, during the civil war.[2] [The applicant] claims that the two men threatened death if anyone in his family reported them or their demands to anyone. He said that he nevertheless later informed the police and that the men subsequently telephoned him, informed him that two of their comrades had been killed in a skirmish with police somewhere, told him that they considered him responsible for the police’s actions and threatened to kill him. He claims the telephone death threats continued for months. He claims his family has not reported or published anything about this harassment because of his father’s “Reputation and his political career”.

    [1] DFAT Country Information Report: Nepal, 1 March 2019, at paragraph 2.3

    [2] “How the Maoist threat extends beyond Nepal,” Financial Times, 26 April 2006,

17. [The applicant] claimed in his original protection visa application that the home invasion and the demand for revolutionary taxes occurred in 2005, which puts the incident before the peace accord of 2006. According to the psychologist’s report, which [the applicant] submitted to the former Immigration Department, it happened in 2003 and that the trauma prevented him from finishing his final year at university, also in 2003. However, in his protection visa application form, [the applicant] claimed that he attended [Education Institute 1] in Kathmandu from 2001 until 2006 when he then withdrew from studies there.

18. At the Tribunal hearing, [the applicant] claimed the two men invaded his family’s home during the civil war and the “state of emergency” but then said that they came to the house in August or September 2007. Then, later, he said the incident happened in early 2007, and after that he said that it might have happened at the end of 2006. I put to him that whichever of these newly-disclosed dates he might rely upon, the civil war had already ended, making it hard to conceive that the Maoist party was still trying to extract revolutionary taxes as claimed. In reply, he said that there remained splinter groups that split from the Maoists in and after the peace accord and which have continued to disrupt life in and out of Kathmandu. This last claim is generally correct, although activity in Kathmandu has mainly comprised protests and a targeted office bombing in recent years,[3] but in any event [the applicant] later claimed that the two men invaded his family’s home and demanded the payment of revolutionary taxes by monthly instalment in 2003 or 2004. He then narrowed the date down to some time between July 2003 and June 2004 during his last year as a student in Nepal but, as noted, he had provided details to the Department about having withdrawn from his [studies] in 2006.

    When I put to [the applicant] that there were discrepancies in his evidence as to when the home invasion had occurred, he said he had not understood my original question. I put to him that he had, in fact volunteered information in connected sentences regarding the home invasion having occurred before the “state of emergency” had come to an end in Nepal.

    [3] “The spectre of a new Maoist conflict in Nepal,” Al Jazeera, 21 April 2019,

19. [The applicant] also claimed that discrepancies as to when the home invasion and demand for tithes occurred were due to nervousness at the hearing. He reiterated now that the true and correct date was in the year July 2003 and June 2004. This was after I had put to him that that the Maoist insurgency had ended before the end of 2006 and any date in 2007. Whereas, the incident occurring in late 2006 might be seen to sit more consistently with cessation of studies in September 2006, [the applicant] adhered to the incident having occurred  between July 2003 and June 2004. Later in the hearing, I put to [the applicant] that he had claimed in his protection visa application form that the home invasion had occurred in 2005 and he said that this was incorrect, and that he had not taken the trouble of checking the text of those claims for accuracy. I note that he nevertheless signed an undertaking in that form to the effect that all the claims in his protection visa application form were true, correct and complete.

20. Whereas [the applicant] claimed that the home invasion incident occurred between July 2003 and June 2004, he also said that he remained in Nepal only one and a half to two and a half years after it happened. This sits better with the claim about the incident having occurred in 2005, but [the applicant] repeatedly emphasised to me that the 2005 in his protection visa application form date was incorrect, put there by someone else. He then later told me that the correct date was the one in his protection visa application form.

21. There were other unresolved discrepancies in [the applicant]’s claims. For example, he originally told me that up until he came to Australia he physically resided with his parents in the family home. He later claimed that he went into hiding after receiving the death threats in 2003-2004, which would mean that he ceased living with his parents around four or more years before coming to Australia. He was not consistent as to where he stayed whilst hiding: in one instance he said he stayed with relatives and in another he said he stayed with neighbours. Then he said these neighbours lived one hour’s drive away from his family’s home. He then modified this claims saying that he sometimes stayed with his parents during that period. He did not resolve stark inconsistencies in this part of his evidence. I note, meanwhile, that this was not about having trouble recalling dates but about recalling the nature of the relationship he had with the people purportedly offering him shelter, and about whether an uncle who lived an hour away could even broadly be synonymous with “neighbour”.

22. Whereas [the applicant] claimed in his protection visa application form that he told the authorities about the threats to his family about three months after the home invasion, he told me he did so about six months or a year later. When I put the apparent discrepancy to him, he said that the claim in the protection visa application form was correct and that his memory might have faltered over time due to stress.

23. I asked [the applicant] why he reported the incident to the authorities in circumstances where members of his family could be killed if he did so. In reply, he said he did so because the Maoists had threatened his family. I considered this alongside the inconsistent evidence as to when he supposedly reported the incident. I asked him if his father had not had the last word as to whether to heed the two Maoists or not, and he said that whereas his father had been scared to tell the authorities, he did not listen to his parents and just went to the authorities. I then expressed concern that, in the claimed circumstances, no-one has been harmed since. In reply, he said that the Maoists want him and only him because it was he who they blamed for telling the authorities. I asked [the applicant] how many instalments were paid by his family in revolutionary taxes to the Maoists and he said the payments were set at [amount] rupees per month. I repeated my question and he said his family only paid one or two of these payments. He also told me that his parents and one brother still live in the same house, with the same telephone number they always had, and have never hired security guards because the two men told his father that if he ever tried to hire security guards they would kill him. This last claim was a new claim that did not appear in the original protection visa application. [The applicant] told me his brother manages the family’s land holdings and cares for their parents. He indicated that his father lives as a retiree. I put to him that on the evidence of his family’s circumstances over the last fifteen years since 2005, the median date for the events at the centre of these claims, it appeared as though his family’s failure to pay the money sought by the Maoists had not been a serious issue. In reply, [the applicant] said that the Maoists never demanded that the payments be resumed. I then put to him that it was as though no genuine desire for the demanded money had ever really existed. Then he said this was correct that that what the Maoists really wanted was to get him and kill him for having reported their money demands to the authorities.

24. [The applicant] evidently reported to the psychologist that he began to falter in his studies in 2010 due to fear of the situation in Nepal and that, in spite of changing courses from [Discipline 1] to [Discipline 2] in 2011, he sank into depression, and was unable to meet the IELTS English-language requirement for the visa he was seeking at the time. He also evidently told the psychologist that he did not apply for protection until several years later because he had never heard of Australia offering protection visas to people in need of protection. I not, meanwhile from evidence in the protection visa application form that [the applicant] worked continuously from 2008 to 2012 in two immediately consecutive jobs in Sydney and was also working in 2014 at a [workplace] at [Location 1]. I have weighed his ability to keep working at the time with his claims about not being able to study at the same time due to worries about the Maoists in Nepal, and about not being able to visit Nepal to see his parents.

    Findings in relation to s.36(2)(a) of the Act

25. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.

26. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[5]

    [4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [5] Sun v MIBP [2016] FCAFC 52 at [69].

1. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7]

   [6] MIMA v Rajalingam (1999) 93 FCR 220.

   [7] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

2. Overall I have found [the applicant] to be an unreliable witness in relation to many significant aspects of this matter. Relevant to this, I have given due consideration to the psychologist’s report and to information given to me at the hearing regarding [the applicant]’s emotional/psychological profile. I accept that over a period of years [the applicant] has been feeling some symptoms of depression, stress and anxiety. This necessitates me considering two questions in particular. The first is whether [the applicant] was prevented by factors beyond his control, such as those described in the report, from giving cogent, meaningful and consistent evidence in this matter; after giving the question due consideration, I find that he was not. Whereas he claims that time and stress have affected his memory, he was selective in his reliance during the hearing on the claims as originally made in his protection visa application form back in 2016. In addition, I find some of his claims were simply improvised, like the one about hiding with his relatives for four or five years, followed by the one about hiding in the home of a neighbour, eventually followed by a claim about alternately having stayed with both, none of these claims sitting with what he originally told me.

3. The second question is whether the psychologist’s report can be regarded as independent corroboration of claimed events that form the basis of [the applicant]’s substantive claims; upon consideration of this question, and having regard to [the applicant] having been identified as the source of facts relayed in the report, I do not give it any weight as an independent source of information regarding those substantive claims.

4. I accept that [the applicant]’s father is a retired [official]. I am not satisfied on the evidence before me that that alone gives rise to a real chance of him or his family being persecuted, or to a real risk of [the applicant] significant harm. I accept and give weight to the fact that [the applicant]’s family has resided safely, though unguarded, in the same house with the same telephone number since around 2000 ([the applicant] told me the family moved away from its land in Dang in that year due to the Maoist insurgency in the countryside there).

5. I do accept that the Maoists put excessive pressure on land-owning families and others perceived as likely sources of money during the civil war in Nepal, particularly in the countryside where [the applicant] formerly lived up to 2000. I give more weight, however, to the civil war and the Maoist insurgency having ended in 2006. Whereas I accept that there has been some splinter group activity, particularly recently, in Kathmandu, I do not accept that the facts of such activity help [the applicant] argue the factuality of the claims he has made about the treatment of him and his family.  I do not accept, on the evidence before me, that Maoists or any other criminals ever raided the home of [the applicant]’s family, let alone demanded money, let alone threatened to kill them. In particular, I do not accept on the evidence before me that the alleged adversaries have singled [the applicant] out for harm. I find that his account of how and why he went alone to the authorities lacks a ring of truth. I find that all of [the applicant]’s claims to such effect have been invented.

6. I give no weight to the family visit to [Country 1] having been due to risks [the applicant] faced in Nepal.

7. I give no weight to [the applicant]’s claimed reasons for his difficulties with studies and IELTS marks.

8. On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in Nepal in the reasonably foreseeable future for any of the five reasons cited in s.5J(1)(a) of the Act. His claimed fear of persecution is not well founded. He is not a refugee.

9. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Findings in relation to s.36(2)(aa) of the Act

10. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

11. A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

12. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

13. "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she is subjected to the death penalty; or arbitrary deprivation of life; or torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.

14. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits cruel or inhuman treatment or punishment, degrading treatment or punishment, and torture, which are further defined in s.5(1) of the Act: essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. Cruel or inhuman treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Degrading treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one 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 ICCPR.

15. There are 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: s.36(2B) of the Act.

16. Accepting that [the applicant] is a citizen of Nepal, I find that Nepal is the “receiving country” in this case.

17. I find that the harm [the applicant] identifies in his claims includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.

18. [The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due to significant inconsistencies, a lack of credibility and, ultimately a failure to meet the “real chance” test. In the circumstances, his claims can no more succeed as complementary protection claims.

19. In the circumstances, having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that [the applicant] will suffer significant harm.

20. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

21. 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, he does not satisfy the criterion in s.36(2).

    DECISION

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

    Luke Hardy
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 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.

    (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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …