1704508 (Refugee) - [2020] AATA 783

1704508 (Refugee) [2020] AATA 783 (10 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704508
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Christopher Smolicz
DATE:10 January 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 January 2020 at 3:54pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – political opinion – ordinary member of political party – anti-government and anti-China protester – arrest and detention – departure while on bail – late claim of online political activity – credibility – inconsistent evidence – conduct to strengthen claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(6), 36(2)(a), 65, 424AA, 438(1)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASE
SZRTN v MIAC [2013] FCCA 583
SZRTN v MIBP [2013] FCA 1156
SZTYV v MIBP [2018] FCA 1076
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 and Border Protection on 8 March 2017 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 Taiwan, applied for the visa on 22 January 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 themselves of the protection of that country: s.5H(1)(a) of the Act. 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) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. 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 of the Act, 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Material under a public interest non-disclosure certificate
The Minister for Immigration (or delegate) may place restrictions on material given to the Tribunal by the Department. Section 438 of the Act permits the Minister to certify in writing that the disclosure of information is contrary to the public interest or notify the Tribunal that it was given in confidence to the Department.
The Tribunal notes that the delegate of the Minister has issued a certificated pursuant to s.438(1)(b) in this matter. The certificate is dated 26 February 2019 and is in relation to documents located on file [number]. The certificate states that disclosure of the material would be contrary to the public interest because it would enable a person to ascertain the existence or identity of a confidential source of information.
The Tribunal has considered the certificate and the reasons why it was issued in respect of the specified folios. The Tribunal provided the applicant with a copy of the certificate and gave him an opportunity to comment on its validity. The Tribunal is of the view that the certificate is valid and the documents subject to the certificate do possess the necessary quality of confidence required for s.438(1)(b).[1]
[1] SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42].
The Tribunal has considered the information that is subject to the s.438 certificate. The Tribunal finds this information meets the definition of ‘non-disclosable information’ under s.5 of the Act. ‘Non-disclosable information’ as defined in s.5(1) of the Act includes information whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence and information or matters whose disclosure may be contrary to the national or public interest.[2]
[2] Information which meets the definition of ‘non-disclosable information’ is explicitly exempt from the obligations in s.424A and s.424AA of the Act.
The Tribunal has given consideration to whether it is possible to nonetheless disclose the substance or gist of the information to the applicant to assist in affording the applicant procedural fairness while at the same time protecting any relevant public interest, including the interest in protecting informants.
Specifically, the Tribunal informed the applicant it has received information that alleged that his claims for protection were false and were obtained for by payment of money to a lawyer. He does not fear harm in Taiwan and wants to remain in Australia to work and earn money.
Using the procedures under s.424AA of the Act the Tribunal disclosed the gist of the information subject to the certificate and material located on the Tribunal’s file to the applicant at the hearing without disclosing the identity of the third party. The applicant did not require time to respond. The applicant denied the allegations.
The Tribunal notes that the ‘dob-in’ allegations are vague and not supported by a signed statement or supporting evidence. The Tribunal is also aware that allegations can be made for personal reasons. The Tribunal has considered all of the dob-in information and in the circumstances has decided to exercise caution and not to place any weight on the information.
Issue
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds because he:
·     is an anti-government protester
·     is an anti-China protester
·     was arrested by the police because of his involvement in protest activity.
Background
The applicant is [age] years old. He was born in Taipei City, Taiwan. He has travelled to Australia as a holder of a Working Holiday (Subclass 401) visa on the following occasions:
· [July] 2013 to [November] 2013
· [late in] November 2013 to [July] 2015
The applicant returned to Australia as the holder of a three month ETA visa [in] October 2015 and has not departed Australia.
Summary of substantive claims
The applicant made the following brief claims in his protection visa application.
He was in Australia on a Working Holiday visa between July 2013 and July 2015. When he was in Australia in 2014 many of his friends contacted him and told him about the ‘trade pact’ with China. They were protesting against the trade pact, which they claim will destroy employment opportunities for young people in Taiwan. Some of his friends were arrested during the riots.
When he returned to Taiwan in August 2015, he and his friends participated in a peaceful protest in Taipei City. Riot police beat them with batons. He was arrested and jailed for three weeks. He was warned he would be sentenced to 10 years jail if he attended any further protests. He fears if he returns to Taiwan he will be arrested.
He left Taiwan in October 2015 because he supported protesters who organised riots in March 2014.
Consideration of claims and evidence
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal did not find that the applicant to be a credible witness. The Tribunal found the applicant’s evidence to be vague, inconsistent and lacking in detail. The Tribunal’s findings are detailed below.
Political opinion
The applicant said he is a political activist. He said that in Taiwan there are two political parties: the Kuomintang (KIT) which is pro-China and the Democratic Progressive Party (DPP) which supports Taiwanese independence. The applicant said he had been a member of the DPP since he was at University.
The Tribunal asked the applicant if he had any documents to support that he was a member of the DPP. The applicant said he did not have any documents in Australia. The Tribunal asked the applicant to explain the process by which a person becomes a member of the DPP. The applicant said he had to swear an oath of allegiance and sign a document adopting the principles and code of the DPP. The Tribunal asked the applicant if he could provide an explanation of the principles and code of the DPP. The applicant said that the party works for the public interest and works for the welfare of the people. He could not provide any further information.
The Tribunal referred the applicant to country information and noted that the political landscape in Taiwan had significantly changed since he arrived in Australia.
The Tribunal has had regard to country information and finds that Taiwan’s multiparty system features vigorous competition between the two major parties, the DPP and the KMT.[3] Three peaceful transfers of power between rival parties have occurred since 2000.[4] Specifically, the Tribunal notes that in January 2016, President Tsai Ing-wen of the DPP was elected to a four-year term.[5] Smaller parties are able to function without interference and have played a significant role in both presidential and legislative contests.[6] There are no reports of political prisoners or detainees.[7]
[3] ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p.2, B. Political Pluralism and Participation, NGED867A615
[4] ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p.1, NGED867A615
[5] ‘Country Report on Human Rights Practices 2016 – Taiwan’, US Department of State, 3 March 2017, p.1, Executive Summary, OGD95BE926957
[6] ‘Freedom in the World 2018 – Taiwan’, Freedom House, January 2018, p. 2, B. Political Pluralism and Participation, NGED867A615
[7] ‘Country Reports on Human Rights Practices for 2017 – Taiwan’, US Department of State, 20 April 2018, p.6, Section 1e, OGD95BE927327
The Tribunal has had regard the applicant’s evidence and the country information and accepts that the applicant is a follower and ordinary member of the DPP which is now the ruling political party in Taiwan.
Protest activity
The Tribunal asked the applicant why he returned to Taiwan in July 2015. The applicant said that a protest was organised by the DPP and he returned to Taiwan to take part in the protest. The Tribunal asked the applicant when he took part in the protest. The applicant was unable to answer the question and said the protest was conducted over the period March 2015 to August 2015.
The Tribunal noted that he was still in Australia in March 2015 and asked the applicant if he could be more specific about the day he attend the protest. The applicant said he could not remember. He said the protest occurred in Taipei city at the Department of Education and about 100 people attended the protest because the Department of Education were making adjustments to text books used by high school students.
The Tribunal asked the applicant if he could provide further information about the nature of the changes being made to the text books. The applicant said that the KMT was behind the changes which were pro-Chinese. He could not provide further information. He could not explain which text books or subjects were in issue or what changes were being made.
The Tribunal finds it surprising that the applicant was unable to provide further information about the protest in circumstances where he claims to be a political activist who returned to Taiwan to take part in the demonstration.
The Tribunal questioned the applicant about his role in the demonstration. The applicant said he was just a supporter. He was not in charge and was following other people.
The Tribunal notes that media reports referred to in the delegate’s decision also confirm that hundreds of people took part in peaceful protests relating to the revision of history text books in August 2015.[8]
[8] CX1BD6A0DE19196 ‘Hundreds take to Taiwan’s streets to demonstrate against “one China” textbook revision’ ABC News (Australia) 3 August 2015.
The Tribunal had regard to the applicant’s evidence and finds that his knowledge about the protest that he claims to have attended in Taiwan is vague and lacking in detail. The applicant could not confirm when he attended. He could only provide a basic explanation about the nature of the protest activity which is not consistent with his claim that he is a political activist who specifically returned to Taiwan in order to take part in the demonstration.
The Tribunal also notes that the applicant’s working holiday visa ceased on 12 July 2015 and the applicant departed Australia on 11 July 2015. The Tribunal finds the applicant had to depart Australia because his visa had expired. The Tribunal does not accept the applicant’s claim that he specifically returned to Taiwan to take part in a political demonstration. The Tribunal put this information to the applicant for comment at the hearing. The applicant claimed it was a coincidence that his visa ceased at the time of the protest activity.
Arrest and detention
The applicant said he was arrested and detained for two weeks because he took part in the protest. The Tribunal asked the applicant if he was charged with any offence. The applicant provided various answers to the question. First he said he was not charged. After further questioning he said he was charged with violating public order but could not provide further explanation. He could not provide any documents relating to the charges because he claims he left them in Taiwan.
The Tribunal asked the applicant if he appeared before court and was tried or pleaded guiltily to the charges. The applicant said he was released on bail and escaped to Australia.
The Tribunal noted that in his statement of claim he said he was detained for three weeks and that the police released him and warned him not to attend any other protest or he would be sentenced and jailed for up to 10 years.
When the inconsistencies were put to the applicant he said that his English language skills were not good and what he was saying at the hearing was the truth. The Tribunal noted that it seemed unusual that he would be able to depart Taiwan if he was on bail pending charges. The applicant said he did not have any trouble departing Taiwan.
The Tribunal asked the applicant to explain if he knew why the police kept him in custody for two or three weeks. The applicant said the authorities wanted to stop him from protesting.
The Tribunal asked the applicant if he took part in any other anti-government protests in Taiwan. The applicant said this was the only protest that he took part in but he was active in protesting online on many occasions. The Tribunal finds it surprising that the applicant would only take part in one demonstration in August 2015 if he claims he is a political activist who has been a member of the DPP since he was a student in Taiwan.
The Tribunal has had regard to the applicant’s evidence about his arrests and detention and finds it inconsistent and lacking in credibility. The Tribunal does not accept the applicant took part in the August 2015 protest activity and that he came to the attention of the authorities and was arrested and detained.
New evidence
Online political activity
The Tribunal asked the applicant if he could provide details of his online political activity. The applicant referred the Tribunal to a printout of a [Social media] post in the English and Mandarin languages taken in 2017 in Australia.
The photograph provided the depicts the applicant sitting at a table, playing cards with a bundle of bank notes, poker chips holding a mobile phone depicting a photo of the Taiwanese flag. The Tribunal asked the applicant to explain the significance of the photo to his claims for protection.
The applicant said he took part in a poker competition at a pub in South Australia. He claims he was the champion and he displayed the Taiwanese flag on his phone. The applicant said that another person took this photo and posted it online. He said that China had passed laws preventing the Taiwanese flag from being displayed at the Olympics. He claims the photo would be known to the Chinese authorities and his life would be in danger.
The Tribunal has considered the [Social media] post provided by the applicant. The post appears to relate to [a game competition] and is dated [April] 2017. The Tribunal notes that the post does not show a photograph of the applicant displaying the Taiwanese flag.
The Tribunal has had regard to the applicant’s evidence and finds that the photograph is staged and the [Social media] post was created after the applicant’s protection visa application was refused.
The applicant said the photo was relevant because he supports Taiwanese independence. He claims the time the photo was taken was consistent with other media reports regarding the Taiwanese flag not being used in the Olympics.
The applicant was unable to provide any logical or coherent explanation why he would pose for a photograph with the Taiwanese flag on his mobile phone at a local poker competition held in a pub in Australia.
The Tribunal raised with the applicant its concerns about the evidence. The Tribunal finds that the applicant has engaged in conduct in Australia with the purpose of strengthening his claims for protection. The Tribunal has regard to s.5J(6) of the Act and has disregarded the photograph and [Social media] posts in assessing the applicant’s claims for protection.

The applicant also provided the Tribunal with a bundle of documents at the commencement of the hearing. The documents are mainly in the Mandarin language and were not translated into English. The documents fall within the following three categories: printout from Wikipedia regarding anti-government demonstrations held in the period 24 May 2015 to 6 August 2015 in Taiwan, media articles and Anti-Secession Law (Adopted at the Third Session of the Tenth National People’s Congress on March 14, 2005). The Tribunal questioned the applicant about the documents at the hearing. The Tribunal noted that the Anti-Secession Law was a law of the Communist government of China. The applicant agreed that it was not currently relevant but may be in the future if the KMT party got back into power.
The Tribunal has considered the material and found the documents to be of limited assistance or relevance to the applicant’s claims.
Well-founded fear of persecution
The Tribunal does not accept the applicant is a ‘political activist’ or that he took part in anti-government demonstrations in August 2015 in Taiwan or at any other time. The Tribunal does not accept the applicant has been politically active on line. The Tribunal does not accept the applicant came to the adverse attention of the authorities and was arrested, detained and released on bail and escaped Taiwan. The Tribunal finds the applicant manufactured this evidence in support of his claims.
As detailed above the Tribunal finds that the applicant is an ordinary supporter of the ruling DPP in in Taiwan. Country information confirms that protests are a regular part of political life in Taiwan. Protests and demonstrations occur on a regular basis in major cities, particularly during elections, and rarely become violent.[9] The news media reflect a diversity of views and report aggressively on government policies. Private discussion is open and free in Taiwan, and there were no reports of the government illegally monitoring online communication in 2018. The government of Taiwan does not restrict internet access.[10]
[9] ‘Taiwan 2018 Crime and Safety Report’, Overseas Security Advisory Council (OSAC), US Department of State, 2 July 2018, p.3, Civil Unrest, CIS7B839419268
[10] ‘Freedom in the World 2018 – Taiwan’, Freedom House 2019 >
Having regard to the applicant’s profile, the Tribunal finds that the applicant as an ordinary supporter of the DPP will be able to freely engage in political debate and protest activity in person and online in Taiwan. Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm if he returns to Taiwan because of his actual or imputed political opinion. The Tribunal finds that his fear of persecution is not well-founded.
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 s.36(2)(a).
Complementary protection criteria
The Tribunal has also considered the applicant’s claims, having regard to the complementary protection provisions.
The Tribunal must determine if there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan that there is a real risk he will suffer significant harm.
The types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A).[11] Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
[11] SZRTN v MIAC [2013] FCCA 583 (Judge Nicholls, 21 June 2013) at [43] (upheld on appeal: SZRTN v MIBP [2013] FCA 1156 (Foster J, 6 November 2013))
For the reasons detailed above, the Tribunal does not accept the applicant was arrested, detained and charged by the Taiwanese authorities. The Tribunal does not accept the applicant was release on bail and fled Taiwan. The Tribunal finds the applicant manufactured these claims.
For the reasons detailed above the Tribunal finds the applicant is an ordinary supporter of the DPP who has not come to the adverse attention of the Taiwanese authorities in the past.
The Tribunal notes that the political landscape has changed since the applicant departed Taiwan and the DPP is now the ruling party. The Tribunal finds the applicant will be able to freely take part in political protests in person and online in the future.
The Tribunal has considered the online [Social media] material provided by the applicant under the complementary protection criteria. As detailed above, the Tribunal finds the photograph of the applicant staged and is not evidence of the applicant engaging in genuine protest activity.
The applicant claims he fears the Chinese authorities will access the material and it will put his life in danger. There is no evidence before the Tribunal that the limited information on the applicant’s friend’s [Social media] posts is of any interest to the Chinese authorities or that it has been accessed by the Chinese government. Further, as discussed with the applicant at the hearing, the Tribunal is assessing his claims against Taiwan as the receiving country, not China. The Tribunal has had regard to the applicant’s profile and notes that he is not a political activist and finds that it is mere speculation to suggest that an internet post on his friend’s [Social media] account of him referring to the Taiwanese flag would put his life in danger or bring him to the adverse attention of the Taiwanese authorities if he was to return to Taiwan in the future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan that there is a real risk that the applicant will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…
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.
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