1705272 (Refugee)

[2017] AATA 1382

1705272 (Refugee) [2017] AATA 1382 (8 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705272

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:8 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2017 at 5:05pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Human Rights activist – Fears being charged for sedition –Claims similar or identical to other recent protection visa applicants – Credibility issues

LEGISLATION

Migration Act 1958, ss 5H, 5J,5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan [1996] 40 ALD 445
MIEA v Guo & Anor [1997] 191 CLR 559
Nagalingam v MILGEA [1992] 38 FCR 191
Prasad v MIEA [1985] 6 FCR 155
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 [in] March 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 Malaysia who first arrived in Australia [in] April 2015, departing [in] July 2015.  She returned to Australia [in] January 2016 and applied for the visa [in] October 2016. The delegate refused to grant the visa on the basis that he was not satisfied the applicant was a person to whom Australia owed protection.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

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

6. 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.

7. 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

8. 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

9. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether she is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Credibility

10. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility[1].  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482

11. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant[2].  For the reasons set out below, the Tribunal has formed the view that some parts of the applicant’s evidence should not be accepted.

    Country of nationality

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

12. The applicant travelled to Australia on an apparently genuine Malaysian passport.  She has at all times maintained that she is a citizen of Malaysia.  The Tribunal finds she is a Malaysian citizen and has assessed the applicant’s claims against Malaysia as her country of nationality.

    The applicant’s personal background

13. At hearing the applicant told the Tribunal that she was born and grew up in Sabah, Malaysia where her [family members] still live.  She was educated to year [grade] level and then worked in the [occupation] for [number of] years before marrying and having a family.  She has [children] aged [ages], one of whom lives with her mother while the [others] live with her in-laws.  Her husband came to Australia earlier this year to visit her and is currently [working] but will soon be returning to Malaysia.  In Malaysia her husband works as [occupation] and they have their own house.  She has a small business in Sabah [that] is currently being run by her husband.

14. The applicant told the Tribunal she came to Australia for the first time in April 2015 on a [temporary] visa to visit a [relative], returning to Malaysia three months later.  She next entered Australia [in] December 2015 and has not departed Australia since that date.

15. The Tribunal accepts each of the above matters to be true.

    Claims made in the protection visa application

16. The applicant claims to be a native of North Borneo.  She states that the native people of North Borneo are trying to claim their rights from the United Nations and she is a volunteer collecting signatures on a petition to request the British government review the 1963 Malaysian Agreement.  She states she has been threatened by the Malaysian government and that many North Borneo Sabah natives have been charged with sedition for trying to educate and spread the truth about their history and current situation.  She claims she cannot remain in Malaysia for safety reasons and she is educating her people by spreading messages through [social media].  She claims the Malaysian government are trying to stop their human rights claims and when they voice their rights bad things happen, they are jailed for things they didn’t do or are killed.

    Evidence at hearing

17. At hearing the applicant told the Tribunal that several years before coming to Australia for the first time she was involved in the human rights movement in Sabah and Sarawah as a political activist. When asked when she first became involved in political activism, she stated she wasn’t sure but it was around 2008 or 2009.  She stated the activists were trying to raise awareness with regards to the 20 issues with respect to the Sabah Union UK. She stated the movement was registered in UK, she was not sure how but she submitted some documents earlier. When asked how she joined the movement, she said the movement had to gather 300,000 signatures in a petition to [before] they would consider the case. She said they hadn’t collected 300,000 signatures yet, but she herself had signed it online in 2008.

18. The applicant told the Tribunal that after signing the petition in 2008, she joined other activists to collect signatures and to educate the people of Sabah that their rights were slowly being eroded. She said she started collecting signatures in villages and markets in 2010.

19. The applicant told the Tribunal she was a member of SSKM, a group which wanted Sabah and Sarawah to leave Malaysia. When asked when she joined the group she said she started when she saw the land belonging to villagers being taken away by government and sold to companies that did not originate in Sabah. When asked if she was in contact with any other activists, she stated that she was and that some of them were still active in Sabah.

20. When asked to elaborate she said she had a friend over here in Australia called [Ms A] who is a member of [organisation]. She said [Ms A] contacts other people and then informs her and [Ms A] is also in touch with their friend [called] [Ms B] to find out what is currently happening.  She told the Tribunal that she herself had no contact with [Ms B].

21. At hearing the Tribunal discussed with the applicant the issue of her credibility, noting the delegate didn’t accept her claims and noted they were similar or identical to claims made by numerous other claims before the department. The Tribunal advised it was concerned she hadn’t been able to describe how she came to be involved in this group in Malaysia. The applicant told the Tribunal that the National front was in Sabah and there was a lot of discrimination and after the election, none of the election promises were fulfilled. She stated the Federation of Malaysia was signed in 1963, but in 1965 Singapore left the Federation to become independent and the agreement was rescinded. She stated that Sabah and Sarawah were still under Malaysian rule and that is what is contained in the 20 issues.

22. When asked when her contact with other activists in Malaysia started, she said she started contacting other activists since living here in Australia while in Malaysia she just went to meetings. When asked how she knew the other activists, she said through their common fight. When asked if she had met them she said she had. When asked to elaborate she said sometimes they would meet at home. When asked how she met them in the first place, she said she was previously active in politics. She said when she heard SSKM activists speak, she stopped being a political person to fight for the rights of people in Sabah.

23. Asked when she had been active in politics, she said it was between 2003 and 2006 but that she wasn’t active close to the election. When asked who she was active for, she said it was the government party, National Front and she attended visits by the Members Party Women’s Branch where they distributed food at old people’s homes and were sometimes asked to undergo courses such as flower arrangement.

24. She stated that after she heard about SSKM from her [relative], she began to realise the government was only taking care of its own interests and not caring enough about rural people in Sabah. She stated that in 2015 she was involved in [various work] and at the end of 2016 they donated money to help the poor in Sabah.

25. When asked if she had any experience with the Malaysian authorities as a result of her activities, she said they were prevented from distributing leaflets in 2015 but this didn’t lead to any ongoing interest because she ceased doing it. She said the following week her four friends were detained. When asked their names, she said she couldn’t remember but that she had photos and articles about them. When asked why she didn’t know the names of people she described as her friends, she stated that they were from another group from another district and that she had met them but didn’t know them personally.

26. She told the Tribunal that she was once detained overnight at a police station, after which some of their friends put up their bail. She said this happened in Sabah in early April 2015 before she came to Australia the first time. She said they were detained by the authorities and accused of sedition and given a warning given a warning of stiffer sentences in future.

27. When asked how they came to be detained, she stated that SSKM can was not liked by the government and she believed the authorities knew about their activities from the government. She said when they saw the leaflets they accuse them of seditious acts and detained them and the following week her other friends were detained. When asked who detained her, she said it was the police. When asked if that was the only time she was detained, the applicant stated it was.

28. The Tribunal noted that she came to Australia shortly afterwards, but returned back to Malaysia and the applicant agreed. When asked why she didn’t claim protection in Australia then, the applicant set her intention was only to visit. The Tribunal put to her that appeared that she considered it safe for her to return to Malaysia in mid-2015, but that it was no longer safe for her at the end of 2015 and asked her what had changed during that period. The applicant stated that in the period between her return to Malaysia and her departure from that country, many arrests were conducted by the authorities against members of the movement. She said her husband was worried by the situation and wanted her to return to Australia.

29. At hearing the Tribunal discussed with the applicant country information about the situation from protesters, noting that DFAT reported that protesters face a low risk of arrest. The applicant stated when she received the refusal decision for her protection visa application, it did not discuss Sabah.  The Tribunal noted she had been able to depart and re-enter Malaysia in April, July and December 2015 on her own passport without apparent problem. The applicant said she came to Australia twice because she saw what was happening to her friends and her husband wanted her to be safe.

30. The Tribunal noted she had sought an adjournment of the hearing on the basis she was intending to participate in political activities on the hearing date and asked her what those activities were. The applicant said in Australia SSKM’s supporters voice their opinions online and her friend [Ms A] was involved in human rights activities in Australia and recently spoken at a summit.  The Tribunal read the applicant the letter she had sent requesting a hearing adjournment and asked her again what activities she was referring to. The applicant said she followed her friend [Ms A] to [City 1] to visit family and collect signatures from Australia and others involved in the fight. She said she was supposed return [home] at the end of the month but returned early to attend the hearing. When asked again what activities she was referring to in a letter she said she was merely following [Ms A], shadowing her to learn how to go about continuing the fight. She stated there was nothing in particular occurring on the hearing date, but she was in [City 1] and not due to return until the end of the month.

    ASSESSMENT OF CLAIMS

31. On the basis of the news articles and other publications submitted to the department and Tribunal by the applicant, the Tribunal accepts that the SSU-UK (formerly the SSKU) is a movement advocating for the secession of Sabah and Sarawak from Malaysia following the federation of Malaysia in 1963.  The Tribunal accepts that its members are circulating a petition to the United Nations seeking self-determination for Sabah and Sarawak and four volunteers collecting signatures were charged under Malaysia’s Sedition Act in February 2015.

32. However for the following reasons the Tribunal does not accept the applicant’s account of her experiences as a political activist for the SSKU in Malaysia to be true.

33. The Tribunal notes the delegate’s statement in the decision record dated [March] 2017 (a copy of which was provided to the Tribunal by the applicant) that “the applicant’s lengthy written statements are extremely similar or identical to the claims made by numerous other recent protection visa applicants from Malaysia”.

34. The Tribunal found the applicant’s evidence as to her activities in Malaysia to be vague and unconvincing.  Her detailed written claims talk at length about the general situation in Sabah, but provide little detail of her own activities or experiences as a political activist in Sabah.  Despite being asked several times, the applicant was unable to describe how she can to be involved in the Sabah human rights movement, telling the Tribunal it just happened and she couldn’t describe it. When asked if anything happened to cause her to become involved in the movement, she stated nothing happened and that she was moved to join because of things on [social media].  She told the Tribunal that her four activist friends were detained by the Malaysian authorities in 2015 but was unable to name those people, later telling the Tribunal that they were from another group from another district and she didn’t know them personally.

35. The Tribunal is also concerned by inconsistencies between her written claims and her evidence at hearing.  At hearing the applicant told the Tribunal that she was detained overnight at a police station and accused of sedition in April 2015, however she did not mention these events in her detailed written claims. 

36. Thirdly, the applicant’s migration history suggests she does not have a genuine fear of harm in Malaysia.  She first arrived in Australia in April 2015 on a [temporary] visa, but voluntarily returned to Malaysia three months later despite her claimed fears of harm in that country.  She was able to depart and re-enter Malaysia in April, July and December 2015 on her own passport without apparent problem, an indication she was not of adverse to the Malaysian authorities. She did not seek protection during her first visit to Australia, despite her claims to have been detained overnight by the Malaysian police because of her political activities shortly before her arrival in Australian in April 2015.  When asked why she considered it safe to return to Malaysia in mid-2015 but not to remain there at the end of 2015, the applicant stated that many arrests were conducted by the authorities against members of the movement between her return to Malaysia in July 2015 and her departure in December 2015.  However the media reports she produced to the Tribunal indicate five activists were detained by police in Malaysia in February 2015, prior to the applicant’s first trip to Australia (see Tribunal folio 12-13).  Similarly news articles produced to the department indicate that SSKM volunteers charged with sedition were arrested on 1 February 2015 (Departmental file folio  8).  There is no information before the Tribunal that would suggest that further arrests took place in the second half of 2015 as claimed.

1. The applicant has produced to the department and Tribunal numerous news articles and publications of the SSKM (now the SSU-UK), most of which appear to have been sourced from the website of SSU-UK.  However all of the materials produced to the Tribunal by the applicant are available from the internet and none of those materials makes any reference to the applicant or her own activities in Malaysia or Australia. 

2. Initially the applicant indicated to the tribunal that [Ms A] would attend the hearing and give evidence in support of her review, although on the day of the hearing she told the Tribunal that [Ms A] was in [City 1] and unable to attend.  After the hearing the Tribunal adjourned the review to allow the applicant to produce further documentary evidence of her political activities and relationship with [Ms A], however no evidence from [Ms A] was provided to the Tribunal.  Rather the applicant sent in a written statement providing further general information about the Sabah Sarawak Union – United Kingdom and six photographs of the applicant and others holding political placards and flags and signing documents.  Those photos are not date stamped or otherwise identified but it appears they were taken in Australia, with a banner in one photo indicates it is a meeting of an education talk and study tour for Sabahan and Sarawakians in Australia while another is taken in front of a picture of a [box] painted with the Australian flag. 

3. The concerns the Tribunal holds about the credibility of the applicant’s evidence cause it not to accept she was a political activist for the SSKM or SSU-UK in Malaysia, nor that she has any genuine fear of harm should she return to that country.  The Tribunal accepts she has some superficial knowledge of the SSKM and its history. The Tribunal is prepared to extend the applicant the benefit of the doubt and accept she signed the SSKM petition online in 2008 as claimed.  However the Tribunal does not accept that she otherwise joined the SSKM while in Malaysia, nor that she was involved in their activities in Malaysia between 2008 and 2015.  In particular the Tribunal does not accept that she distributed leaflets, attended meetings or tried to get others to sign the SSKM petition while in Malaysia.  The Tribunal does not accept the applicant ever came to the adverse attention of the Malaysian authorities as a result of such activities, nor that she was detained by the Malaysian police in April 2015 as claimed.

4. The Tribunal accepts the applicant was involved with National Front’s Members Party Women’s Branch between 2003 and 2006 and that her activities involved distributing food at old people’s homes and undergoing courses such as flower arrangement.  The applicant does not claim to have suffered from any adverse attention or to have any subjective fear of harm on the basis of this historical activity.  On the evidence before it, the Tribunal does not accept there to be a real chance the applicant would face harm for her historic activities with this group if she returns to Malaysia, now or in the foreseeable future.

5. While the Tribunal accepts the applicant has attended an event associated with Sabahan and Sarawakian rights in Australia, it considers she did so to bolster her claims for protection and not because she holds any genuine commitment to the SSKM or their goals.  For these reasons the Tribunal finds that should the applicant return to Malaysia, she would not seek to join the SSKM nor participate in their political activities.  It follows that the Tribunal does not accept there to be a real chance the Malaysian authorities would seek to harm the applicant for reason of any future activities with the SSKM/ SSU-UK in Malaysia if she returned to that country, now or in the reasonably foreseeable future.

6. Having accepted the applicant signed the SSKM petition online in support of the secession of Sabah and Sarawak from Malaysia and attended an education talk and study tour of Sabahan in Australia, the Tribunal has considered whether she could face harm for these reasons. 

7. The applicant gave evidence she signed the online petition in about 2008.  She remained living in Malaysia until December 2015, except for a period of three months she spent in Australia in the first part of 2015.  For the reasons set out earlier in this decision the Tribunal has not accepted the applicant has in the past come to the adverse attention of the Malaysian authorities as a result of her political activities and for the same reasons the Tribunal does not accept there to be a real chance she would in the future be harmed by the Malaysian authorities because she signed an online petition in 2008. 

8. In assessing whether there is a real chance she would come to the adverse attention of the Malaysian authorities because of her attendance at an education talk and study tour of Sabahan in Australia, the Tribunal notes that two of the photographs provided by the applicant show her with a group of about 20 people holding flags under a sign for the Sabahan and Sarawakian in Australia study tour meeting.  Two other photographs show other people signing the petition while a further photo shows the applicant holding the petition up to the camera.  Another photo shows the applicant and two other people holding up SSU slogans in front of a picture of a [box] painted with the Australian flag. It is not suggested the photographs have been published online and the Tribunal does not accept there to be a real chance the Malaysian authorities would become aware of those photos or the applicant’s activities in Australia.

9. In the event the Tribunal is wrong about that and the Malaysian authorities do become aware of the applicant’s activities in Australia, the Tribunal does not accept there to be real chance that the Malaysian authorities would seek to harm her because of those activities. In making this assessment the Tribunal notes DFAT’s advice that political protesters in Malaysia face a low risk of arrest when engaged in political rallies[3]. 

   [3] DFAT 2016 DFAT Country Information Report Malaysia 19 July

10. On the evidence before it the Tribunal does not accept there to be a real chance the applicant will be threatened, harmed or otherwise targeted for adverse treatment by the Malaysian government for any reason relating to her political opinion if she returns to Malaysia, now or in the reasonably foreseeable future.

    Complementary protection

11. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has 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 she will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Malaysia and the Tribunal therefore finds that Malaysia is the ‘receiving country’ for the purposes of s.5(1).

12. For the reasons set out above, the Tribunal has found there is not a real chance the Malaysian authorities would seek to threaten, harm or otherwise target the applicant for adverse treatment for any reason relating to her political opinion if she returns to Malaysia, now or in the foreseeable future. 

13. In MIAC v SZQRB, the Full Federal Court held that 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.[4]  For the same reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm for any reason relating to her political opinion if she is returned to Malaysia. 

    CONCLUSIONS

    [4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

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).

15. 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).

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

17. DECISION

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

    Alison Murphy
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)   the real chance of persecution relates to all areas of a receiving country.

    Note: For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)   the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)   a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)   significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)   a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)   any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)   protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

    (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …