1704968 (Refugee)

[2020] AATA 5148

1704968 (Refugee) [2020] AATA 5148 (10 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704968

COUNTRY OF REFERENCE:                   China

MEMBER:L. Symons

DATE:10 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 November 2020 at 2:37pm

CATCHWORDS
REFUGEE – protection visa – China – Falun Gong practitioner – credibility concerns – inconsistent evidence – delay in seeking protection – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, arrived in Australia [in] June 2007 as the holder of [a] Student visa. On 31 October 2007, he was granted [another] Student visa. This visa expired on 15 December 2009 and he thereafter remained in Australia as an unlawful non-citizen. On 1 June 2016, he was granted a Bridging C visa and a further Bridging C visa on 19 June 2016.

3. The applicant applied to the Department of Home Affairs (the Department) for the Protection visa on 31 May 2016. The delegate refused to grant him the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 17 March 2017, he applied to the Tribunal for a review of that decision.

4. On 1 September 2020, the Tribunal wrote to the applicant and invited him to attend a hearing on 1 October 2020. On 10 September 2020, the Tribunal received a response from the applicant indicating that he would not attend the hearing due to concerns about the COVID-19 pandemic. He stated that the Tribunal could make a decision based on the information he provided. 

5. The case officer contacted the applicant and gave him the option to attend the hearing by telephone. On 14 September 2020, he wrote to the Tribunal and confirmed that he would attend the hearing by telephone. On 15 September 2020, the Tribunal wrote to the applicant and confirmed that the hearing listed on 1 October 2020 at 9.00am had been converted from a face to face hearing to a telephone hearing.

6. The applicant appeared before the Tribunal on 1 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  

7. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion. 

   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, 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). 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).

11. 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.

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.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, and 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 AND FINDINGS

14. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·He came to Australia in 2007 on a Student visa. For various reasons he did not pursue his studies in Australia.

    ·His parents asked him to return to China and help in the family business. He did not want to return to China because he had a girlfriend in Australia. His family did not accept his girlfriend because she was associated with Falun Gong in Australia and wanted him to break up with her. In 2016, his girlfriend became pregnant. They had many arguments and he left the house.

    ·His girlfriend told him about the benefits of practising Falun Gong. Recently, he accidently found out that his girlfriend’s application for a Protection visa was refused. He reconciled with his girlfriend. Under her influence, he became a Falun Gong practitioner and studied Falun Dafa.

    ·He and his girlfriend decided to get married. His parents denounced him when he told them that he was going to get married. He is going to become the father of two children in [month, year]. They have a debt of $8,000.00 for hospital fees.

    ·He is afraid to return to China as a Falun Gong practitioner. He has seen Falun Gong practitioners prosecuted (sic) and their families suffer discrimination. He has concerns for his children. The whole family practises Falun Gong. Their future would be devastated if they return to China.

15. The applicant filed with the Department copies of the biodata page of his Chinese passport issued [in] 1989, the biodata page of his girlfriend’s ([Ms A]) Chinese passport, his daughter’s NSW Birth Certificate indicating that she was born on [date] and his NSW Driver’s Licence issued [in] October 2018.

16. The applicant attended an interview with the Department on 17 February 2017. During that interview, he stated that he became a Falun Gong practitioner in February 2016. His application for a Protection visa was refused on 17 February 2017.

17. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 17 February 2017.

    Country of reference

18. The applicant claims to be a citizen of China and has provided a copy of the biodata page of his Chinese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China. The Tribunal finds that China is the country of reference for the purpose of assessing his claims for protection under the refugee criteria and the complementary protection criteria.

    Third country protection

19. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Assessment of claims

20. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived, his relationship with his girlfriend, his practice of Falun Gong and why he fears returning to China. The Tribunal found aspects of his evidence to be implausible and unconvincing. There were inconsistencies between his evidence to the Department and his evidence to the Tribunal. His behavior was not consistent with his claims. The Tribunal finds that he is not a credible or reliable witness for the following reasons:      

21. First, in his visa application, the applicant claimed that his girlfriend was associated with Falun Gong in Australia, told him about the benefits of practising Falun Gong and, under her influence, he became a Falun Gong practitioner and studied Falun Dafa.

22. During the hearing, the applicant gave evidence that he met his de facto partner in 2013, they started living together as a couple in approximately October 2013, they separated for a few months from February 2016, reconciled and continue to live together as de facto partners. He gave evidence that she became a Falun Gong practitioner in 2012 or 2013 and applied for a Protection visa in 2015 on the basis that she was a Falun Gong practitioner. She did not include him in her visa application, despite his evidence that they were de facto partners at that time and he was a member of her family unit. He stated that her application for a Protection visa was refused.

23. This evidence tends to indicate that the Department did not accept that the applicant’s de facto partner was a Falun Gong practitioner or that she was likely to face persecution for this reason if she returned to China. This raises doubts about his claims that his de facto partner was a Falun Gong practitioner and influenced him to become a Falun Gong practitioner. The fact that she did not include him, as a member of her family unit, in her application for a Protection visa filed in 2015 also raises doubts about his claims that they were de facto partners from approximately October 2013 and she influenced him to become a Falun Gong practitioner. This raises concerns in relation to his credibility and the veracity of his claims.

24. Second, the applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 17 February 2017. It indicates that during his interview with the delegate, he stated that he was introduced to Falun Gong by his de facto partner and became a Falun Gong practitioner in February 2016.

25. During the hearing, the applicant gave evidence that he and his de facto partner separated in February 2016. He stated that he “was refusing Falun Gong” and that was one of the reasons why he left. He stated that they subsequently reconciled some months later. This inconsistency in his evidence raises further concerns in relation to his credibility and the veracity of his claims. 

26. Third, during the hearing, the applicant gave evidence that he initially learnt about Falun Gong from his de facto partner and from videos. They watched the videos and practised the exercises together at home. He stated that he and his de facto partner attended classes every Friday for about 6 months to learn about Falun Gong and then practised the exercises in a group. He stated that he attended these classes and group exercise sessions in [Suburb 1] but did not know the address where they were held.

27. The Tribunal asked the applicant whether he had read any books about Falun Gong. He responded that he read one book called The Circles of the Falun and it was written by Li Hongzhi. The Falun Dafa association has published details of books written by Li Hongzhi and there is no mention of him writing a book called The Circles of the Falun[1]. He stated that after he stopped attending the classes, he continued to practise Falun Gong including doing the exercises at home.

    [1] Falun Dafa, Books and Recent Writings of Mr Li Hongzhi. (>

    The Tribunal asked the applicant some questions about the practice of Falun Gong. He was able to answer some basic questions about Falun Gong. When asked what he learnt about the teachings of Falun Gong, he responded “Truth, Obedience and Tolerance”. The cornerstone of the teachings of Falun Gong is based on the concept of “Truth, Compassion and Benevolence”.[2] The fact that he did not know this raises doubts that he is a genuine Falun Gong practitioner. When asked about the exercises, he correctly answered that there were five exercises. However, when asked to recite the verse before the fifth exercise, he was unable to do so accurately.

    [2] Falun Dafa, Brief Introduction to Falun Dafa. (>

    The applicant’s knowledge of Falun Gong is not consistent with his claims that he has been a Falun Gong practitioner since February 2016, has learnt about Falun Gong from his de facto partner, has watched a video and practised the Falun Gong exercises, has read a book about Falun Gong, has attended classes to learn about the teachings of Falun Gong and to practise the exercises in a group every Friday for 6 months and continues to practice Falun Gong since then. This raises concerns in relation to his credibility and the veracity of his claims.

28. Fourth, the applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 17 February 2017. It indicates that during his interview with the Department, the delegate raised as an issue with him the fact that he had not provided any evidence to substantiate his claim that he was a Falun Gong practitioner and this was one of the reasons why his visa application was refused.

29. The hearing was held more than 3 ½ years after the Department’s decision and the applicant has had plenty of time to rectify this issue. He could have obtained statements from Falun Gong practitioners who attended the classes he claims to have attended in [Suburb 1]. He could have obtained a statement from his de facto partner. He could have called his de facto partner as a witness to give oral evidence on his behalf during his hearing. However, he did none of this. His failure to do so raises further concerns in relation to his credibility and the veracity of his claims.

30. Fifth, in his visa application, the applicant claimed that he is afraid to return to China as a Falun Gong practitioner. During the hearing, the Tribunal asked the applicant whether he would practise Falun Gong if he returned to China. He responded that it is banned in China and he would not practise Falun Gong in China. He stated that his de facto wife will continue to do so.

31. The applicant’s response raises doubts that he is a genuine Falun Gong practitioner. The Tribunal would expect that if he had concerns about his de facto wife practising Falun Gong in China he would have called her as a witness to give evidence to support his application. His failure to do so raises further doubts that she is a Falun Gong practitioner. These issues raise concerns in relation to his credibility and the veracity of his claims. 

32. Sixth, the applicant’s conduct is also not consistent with his claims. He has filed with the Tribunal a copy of the Department’s Decision Record dated 17 February 2017. It indicates that he arrived in Australia [in] June 2007 as the holder of a Student visa that expired on 15 December 2009. He thereafter remained in Australia as an unlawful non-citizen from 16 December 2009 until 31 May 2016 when he applied for a Protection visa.

33. The Tribunal would expect that if the applicant was living in a de facto relationship with a Falun Gong practitioner since approximately October 2013, became a Falun Gong practitioner in February 2016 and feared persecution on his return to China as claimed, he would not have remained in Australia as an unlawful non-citizen for that length of time putting himself at risk of being deported to China. The Tribunal would expect him to have obtained some immigration advice and applied for a Protection visa several years earlier than he did.  

34. The applicant’s delay in applying for a Protection visa was also raised as an issue with him during his interview with the Department. The Department’s Decision Record indicates that he responded that he wanted time to elapse before he could apply for a Protection visa. This response makes no sense in light of his claims and is unconvincing. His delay in applying for a Protection visa raises further doubts about his credibility and the veracity of his claims.

35. Seventh, in his visa application, the applicant claimed that his family did not accept his girlfriend because she was associated with Falun Gong in Australia, he and his girlfriend decided to get married and his parents denounced him when he told them that he was going to get married. During the hearing, he gave evidence that he and his de facto partner are not married. This raises further doubts about his credibility and the veracity of his claims.

36. Eighth, in his visa application, the applicant claimed that he was going to become the father of two children in [month, year] and had a debt of $8,000.00 for hospital fees. The   Tribunal wrote to the applicant on 1 September 2020 and invited him to attend a face to face hearing on 1 October 2020. He wrote to the Tribunal and declined a face to face hearing on the basis that he had concerns over the COVID-19 pandemic. He stated that the Tribunal could make a decision based on the information he provided. The Tribunal then offered him a telephone hearing and he agreed to attend the hearing.  

37. During the hearing, the applicant gave evidence that he was working as a “[Occupation 1]” and had done so since 2008. The background sounds tended to indicate that he was at work. When asked why he was not prepared to attend a face to face hearing (due to the Covid 19 pandemic) but was alright to work [at a workplace], he responded that there were not many people and a lot of space [at the workplace].

38. The Tribunal does not find the applicant’s response to be convincing in view of the fact that the only people in attendance at his hearing would have been him, an interpreter and a Tribunal Member and he could have worn a mask. The Tribunal would expect him to have contacted the Tribunal and spoken to the case officer about his concerns if this was his reason for not wanting to attend a face to face hearing. The fact that he was prepared for the Tribunal to make a decision on the papers, particularly when he had not provided the Tribunal with any documentary evidence to support his claims, also indicates the lack of importance he placed on his application for a Protection visa.

39. The applicant’s conduct raises concerns in relation to his motivation for wanting to remain in Australia. It also raises concerns in relation to his credibility and the veracity of his claims.

1. Ninth, the Tribunal raised as issues with the applicant its concerns in relation to his credibility and the veracity of his claims that he is a Falun Gong practitioner. He responded that he initially learnt from his de facto partner, read some books and watched some videos. When the Tribunal pointed out to him that he earlier stated that he read one book on Falun Gong, he responded “only that book”. When the Tribunal informed him that there was no evidence that Li Hongzhi had written a book called The Circle of Falun, he responded that he had mentioned Zhuan Falun and the interpreter had made a mistake.

2. The applicant has not provided the Tribunal with any evidence to support his claim that the interpreter made a mistake in his interpretation. In view of the many concerns in relation to his credibility, the Tribunal does not accept his explanation.

3. The Tribunal raised as issues with the applicant the fact that his knowledge of Falun Gong was not consistent with his claims and its doubts that he is a genuine Falun Gong practitioner. He responded that most of the knowledge is from his “wife’s side”. He stated that he truly practises “those things”. The Tribunal does not find his explanation to be convincing and does not accept it.

   Other considerations

4. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on China and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Findings

5. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he has fabricated his material claims for the purpose of obtaining a Protection visa.

6. The Tribunal accepts that the applicant was born on [date] in Fuqing city in Fujian Province in China. The Tribunal accepts that he came to Australia [in] June 2007 as the holder of a Student visa. The Tribunal accepts that he attended a language school for 5 months and has not undertaken any studies since then. The Tribunal accepts that, since coming to Australia, he has worked as a [Occupation 2], [Occupation 3], [Occupation 4] and, since 2008, has been working as a [Occupation 1].

7. The Tribunal accepts that the applicant is in a de facto relationship with [Ms A] and that they have two children of their relationship who were born in Australia. On the evidence before it, the Tribunal is unable to make a finding in relation to when they commenced their de facto relationship.

8. The Tribunal does not accept that the applicant is a Falun Gong practitioner. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal is not satisfied, on the evidence before it, that his de facto partner is a Falun Practitioner, introduced him to Falun Gong and will practice Falun Gong if she returns to China. The Tribunal does not accept that his whole family practises Falun Gong and their future would be devastated if they return to China. The Tribunal does not accept that his parents denounced him when he told them that he was going to get married to his de facto partner.

9. The Tribunal is not satisfied that the applicant is or will be of adverse interest to the Chinese authorities because of Falun Gong related activities if he returns to China now or in the reasonably foreseeable future. The Tribunal is not satisfied that he is at risk of serious harm or significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future. 

   Does Australia have protection obligations to the applicant under the refugee criterion?

10. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of his actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act if he returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

11. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

12. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future. 

13. 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 China, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

14. 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) or s.36(2)(aa) of the Act.

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

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         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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