1705887 (Refugee)

[2017] AATA 1953

1705887 (Refugee) [2017] AATA 1953 (12 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

COUNTRY OF REFERENCE:                  Malaysia

COUNTRY OF REFERENCE:                  Indonesia

CASE NUMBER:  1705887

MEMBER:Gabrielle Cullen

DATE:12 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 September 2017 at 11:53am

CATCHWORDS

Refugee – Protection visa – Malaysia – Indonesia – Loan sharks – Criminal gangs – Protection money – Fear of physical violence – Credible witness – Effective protection – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499

Migration Regulations 1994, 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 [in] March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas [in] September 2016.

3. The first named applicant who claims to be a citizen of Malaysia departed Malaysia for Australia [in] May 2010 on a [temporary] visa. He was then granted a student visa to [November] 2012. He claims to fear return as he could not pay his loan and as a result the loan sharks beat and threatened him.

4. The second named applicant is the claimed partner of the first named applicant.  She completed a Part C form being an Application for Protection and claims to be a citizen of Indonesia. She attached a copy of her Indonesian passport. While she referred to the statement as her claims for protection, no statement was included or attached with the application in her name, only a statement was included in the name of the first named applicant referring to his claims fearing return to Malaysia.

5. The applicants were not invited to attend an interview at the Department. The delegate refused to grant the visas [in] March 2017 on the basis the Malaysian authorities would offer effective protection to the first named applicant.

6. The first named applicant appeared before the Tribunal on 11 September 2017 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The first named applicant was assisted with an interpreter in the Cantonese and English languages. The second named applicant, although invited to attend the hearing, did not attend.

7. The issues to be considered in this case are as follows.

   ·Is the first named applicant credible as to his claims?

   ·Does the first named applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?

   ·Does the first named applicant meet the protection obligations under the complementary protection provisions of the Migration Act?

   ·What is the second named applicant’s country of nationality?

   ·Does the second named applicant meet the refugee protection and complementary provisions of the Migration Act?

   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 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).

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.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

14. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.

    ·The protection visa applications of the applicants dated [in] September 2016 and identity documents.

    ·Statement of the first named applicant attached to the applications for protection.

    ·Oral evidence of the first named applicant provided at the Tribunal hearing on 11 September 2017.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

    ·DFAT DFAT Country Report Malaysia dated 19 July 2016.

15. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    The First Named Applicant’s Claims

16. In a statement attached to his protection visa application the first named applicant claims that he suffered persecution from the local loan sharks and gangsters and as a result he could not live anywhere in Malaysia. He claim after he left school he worked in the local [business] for many years and it was his dream to open his own shop. He claims he borrowed money from a Chinese loan company to open the shop and the idea was to pay back the money once he earned profits.

17. He claims in June 2007 he opened the shop and in the beginning the business was very good. He claims in January 2008 a group of Malaysians came to his [business] suddenly and cried out for the boss. He claims he came and said he was the boss and the Malaysians asked how long the [shop] had been open for. When he advised them it had been open for six months the Malaysians yelled at him and said he must pay protection fees if he opened a shop in the area. He said they told him he had to pay [amount] ringgit in protection fees per month. He claims the Malaysian shouted at him “Do you understand?” He claims he told them he still had loans and there was no money and they advised him it was none of their business. He claims they said they would come again to take the money and if he did not pay they said they would smash the shop. He claims he was so afraid but if he gave the protection fees he would not have enough to pay the loan company. He claims he did not know what to do.

18. He claims from then on these guys came to his [shop] and affected the normal business. He claims he only gave them [amount] ringgit at the end of every month so they took away his [business] equipment and sold it as collateral. He claims every time he said he had no money for protection fees they came to his [shop] and made trouble and the business became worse. He claims from September 2008 he did not have enough money to repay the loan and the loan company reminded him several times. He claims in June 2009 they gave him a final deadline which included interest. He claims he could not afford it. He claims as he did not pay the loan in June 2009 the loan company came to the [shop] and took away his equipment and beat him. He claims they threatened that if he could not repay the money they will cut off his fingers. He claims he was afraid and he tried to contact the police but the police wrote down a record but did not take action. He claims he was desperate so he hid in his friend’s home but he could not stay there long term. He claims he had no choice but to come to Australia in May 2010. He claims the loan company still asks for him after all these years and he is on a black list.

19. At the hearing held on 11 September 2017 the applicant reiterated that he feared return from the loan sharks as a result of the non-payment of money he borrowed from them. He confirmed that the second named applicant is an Indonesian citizen and advised she was not attending the hearing.

20. As to his claim to fear return and the difficulties faced in Malaysia, the first named applicant indicated that he initially borrowed [amount] ringgit and by the time he left it was [more] ringgit. He said he had to pay back [amount] ringgit per month at 8% interest. He said he could not pay as he had to pay [amount] ringgit in protection money. He said his business went down and in June 2009 he could not pay the loan sharks. He said they came and removed the equipment and beat him up. He said he then went into hiding at a friend’s house in Johor. He said he does not know what happened to his [business]. As to whether he fared return from those asking for protection money, he said he did not as he was no longer running the [business]. When asked whether he had anything to add he indicated he was very scared for himself and his family if he has to return to Malaysia.

21. The Tribunal raised with him that it had concerns as to the credibility of his claims and where relevant these have been outlined below.

    Assessment of First Named Applicant’s Claims

22. On the basis of the applicant’s passport and evidence provided at hearing the Tribunal accepts that the first named applicant is a national of Malaysia. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Malaysia is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Malaysia is the receiving country.

23. As to the first named applicant fearing return for the reasons he claims and having faced the difficulties he claims in Malaysia, for the reasons that follow the Tribunal does not accept that he is a credible witness. It finds the first named applicant never faced the difficulties he claims at the hands of the loan sharks or the triad gang/gangsters for the reasons he claims. This leads the Tribunal to find that the first named applicant is not a witness of truth.

24. The Tribunal views as inconsistent with his claim to have been beaten, threatened and gone into hiding and to have fled to Australia to escape the harm feared, his delay in applying for a protection visa. As raised with the first named applicant via the process outlined in s.424AA he arrived in Australia [in] May 2010, was granted a student visa until [November] 2012 and applied for a protection visa in September 2016. It raised with him that it was particularly of concern that in the period from November 2012 to September 2016 he was in Australia unlawfully without a visa.

25. The Tribunal views the first named applicant’s extended delay in applying for refugee status as a relevant consideration in the assessment of his credibility and his claims for refugee status. The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims refugee status, may be considered when assessing the genuineness, or at least the depth, of an applicant’s subjective fear of persecution. As was raised with the applicant at hearing such a delay may lead the Tribunal to conclude that the applicant is not genuine in his fear of persecution or faced the difficulties he claimed, in that if he genuinely feared persecution and faced the difficulties he claims, he would have applied sooner. In particular the Tribunal raised with him that if he was beaten and threatened, went into hiding and fled because of a fear of harm it expects he would apply for asylum sooner than approximately 6 years after his arrival. It raised with him that this was particularly the case as he was in Australia without a visa for over 4 years. In response the applicant indicated orally at hearing that he did not know he could apply for a refugee visa until last year.

26. The Tribunal does not accept his reason for the delay in applying for protection as it expects that if he truly feared persecution and left Malaysia because of the reasons he claims in fear he would have applied sooner.  It does not accept his reason that he did not know he could apply for protection as it is of the view if he fled in fear he would have done some research as to whether he could apply for protection. In this regard it notes he completed [number] years of education and undertook the research to apply for a student visa. His delay therefore adds to the finding he is not credible as to his fear of return and it adds to the finding that he is not credible as to having been beaten and threatened for the reasons he claims. This adds to the finding the first named applicant is not a credible witness.

27. Further, as raised with him the first named applicant’s return to Malaysia to his home area on two occasions in 2011 and 2012 undermines his claim to fear return and to have faced the difficulties he claims for the reasons he claims. In this regard, it is the first named applicant’s claim that he cannot return to Malaysia as he was beaten and threatened by the loan sharks due to an unpaid loan. He claims he is on a blacklist and they still look for him. However as raised with him via the process outlined in s.424AA the applicant returned to Malaysia from [June] 2011 to [July] 2011 and [several weeks in] August 2012. The first named applicant indicated at hearing he returned to his home area of Penang and stayed with his brother. When the Tribunal highlighted its concerns in this regard and that this may question the credibility of his evidence and his claim to have faced the difficulties he claims and why he fears return; he indicated that his father was in hospital and he wanted to return and see him. He said he quietly entered the country and only went to see his father. The Tribunal does not accept this response and is of the view if the first named applicant was in hiding before he departed for fear of the unpaid debt, was beaten, threatened and on a black list, he would not have returned on two occasions to his home area for weeks even if only staying with his brother and travelling to the hospital. His return to Malaysia on these two occasions, to his home area and for weeks further undermines his credibility to have faced the difficulties he claims and to fear return for the reasons he claims. This adds to the finding he is not a credible witness.

28. Further, the Tribunal views as undermining his claim to have faced the difficulties he claims in Malaysia his delay in departure after he received his visa to travel to Australia. As raised with him via the process outlined in s.424AA the information before the Tribunal indicates that he was granted a visa to travel to Australia on [a date in] April 2010 but did not depart until [a date in] May 2010, over six weeks after the grant of the visa. When the Tribunal’s concern was raised with him in this regard he responded that his life will be at risk and threatened on his return to Malaysia. The Tribunal does not view the applicant’s response as explaining why he took over six weeks to depart after he had a visa to travel to Australia when it is his claim his life was at risk, he was in hiding and in fear of serious harm. His delay in departure after the receipt of a visa to travel to Australia further undermines his claim he was in hiding and faced the difficulties he claims for the reasons he claims. It adds to the finding he is not a credible witness.

29. Further, the applicant’s evidence as to where he lived in Malaysia was confusing and inconsistent and adds to the finding he is not a credible witness. The applicant initially indicated at hearing that nine months before he departed he lived at [an address in] Penang, being a friend’s house as he was in hiding, living there as he was in danger. However as raised with the applicant, in his application for a protection visa he had indicated that he lived at this address from [earlier year] to 2010. He responded that he lived at that address with his family, and that is his family home. He said he lived there until he was he was [age range] – in the 1990s, when he came to Kuala Lumpa. He then said he lived in Kuala Lumpa renting a house. He said he lived in Kuala Lumpa until 2009 when he went and lived in Johor with a friend for about nine months as he was in hiding and in danger from the loan sharks. However, when asked as to the address he lived at in Johor with his friend, he said he had forgotten. When the Tribunal raised its concerns as to his inconsistent evidence and his lack of evidence as to where he had lived in Johor; his response was vague and confusing. He initially said he couldn’t write everything down and when the Tribunal asked what he meant by that he said he was cheated by the loan sharks and he does not want to return and fears trouble for him and his family. He said he lived with his one friend in Johor. The Tribunal does not accept the first named applicant’s responses as explaining the Tribunal’s concerns. It is of the view if he went into hiding in fear of harm he would be consistent to the Department and Tribunal as to where he lived and be able to provide more detailed evidence as to where in Johor he lived for nine months. This leads to the Tribunal to find he is not credible as to his claim that he went into hiding as a result of the harm faced. It adds to the finding he is not a credible witness.

30. The Tribunal also has difficulty accepting that despite fearing for the safety of his family and himself in Malaysia from the loan sharks/debt collectors he has not attempted to repay a portion of the loan. This is particularly so as it was his evidence at hearing that he paid from savings to travel to Malaysia from Australia on two occasions, and and paid to study [subject] courses in Australia as an overseas student. His evidence was that he has worked in Australia while he held a visa and saved money to study. When the concern was raised with him, he responded that he could not afford to pay off the loan as it was getting bigger and bigger. He said he sends money home to his family. The Tribunal has difficulty accepting this response and is of the view if the applicant and his family were and are at risk on account of the unpaid debts and he faced the difficulties he claims he would have attempted to repay some of the loan instead of spending it on travel and study. While not solely determinative, the Tribunal’s concern in this regard adds to the finding he did not face the difficulties he claims for the reasons he claims. It adds to the finding he is not a credible witness.

1. The Tribunal views the above concerns to be significant and as outlined above does not accept the first named applicant’s responses as explaining the concerns. These matters cumulatively lead the Tribunal to find the first named applicant is not a credible witness.

   Credibility Summary

2. For all the above reasons, considered cumulatively the Tribunal does not find the first named applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the first named applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore cannot be satisfied on the evidence before it that the first named applicant is a truthful witness as to his claims.

3. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked.  It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the first named applicant is not a reliable witness as to these claims.

4. In making this finding the Tribunal accepts that some information has been consistent over time, including that he fled because he feared loan sharks after he borrowed money from them, he could not repay them as he also had to pay protection money of [amount] ringgit per month and he was beaten and threatened by the loan sharks as he could not repay the loan. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.

5. As the Tribunal has found on the basis of the cumulative evidence before it that the first named applicant is not a witness of truth, it follows it does not accept that he has been targeted by loan sharks, a Chinese loan company, debtors, the triad gang, Malaysians, gangsters or anyone else because of any loan of any amount he claims to have in Malaysia or as a result of having to pay protection money and not doing so. It follows based on the applicant’s lack of credibility that it does not accept that the applicant had a loan with loan sharks or anyone else for any amount as he needed money to set up his business, could not repay it as the triad gang/gangsters or Malaysians made him pay protection money of any amount and when he did not pay he was beaten, threatened, equipment was taken, his business failed, he was placed on a black list and they still ask for him. It follows it does not accept as true he left his business and went into hiding with a friend in Johor or Penang or anywhere else in Malaysia as a result of the harm feared. It follows it does not accept he went to seek help from the police but they took no action.

6. It follows it does not accept he went into hiding or stayed with friends as he was in fear at any time including from June 2009 until his departure in May 2010. Based on the above the Tribunal does not accept that he departed Malaysia in May 2010 in fear for the reasons he claims. It rejects his claims as credible in their entirety. It follows it does not accept he was in any fear when he returned to Malaysia in 2011 or 2012 or modified his behaviour in any way due to a fear of harm for the reasons claimed.

   Does the first named applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?

7. Based on the findings above and the first named applicant’s lack of credibility, it follows the Tribunal does not accept the first named applicant or his family will be physically assaulted, killed, threatened, suffer injury, be beaten, abused, harmed or mistreated, be unable to earn a livelihood, be on a black list, be of any interest to  or face any difficulties he claims as he owes money to the loan sharks, triad gang, gangsters or because of any altercation or difficulty he will face at their hands or as he will have to repay the money borrowed or as he owes protection money to the gangsters or triad gang or Malaysians or had any difficulties with them.

8. As a result the Tribunal does not accept that the first named applicant or his family face a real chance of persecution involving serious harm if he returns to Malaysia in the reasonably foreseeable future at the hands of the loan sharks, Chinese Loan Company, debt collectors, gangsters, Malaysians or triad gang for any of the reasons he claims. The Tribunal therefore is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Does the first named applicant meet the protection obligations under the complementary protection provisions of the Migration Act?

9. The Tribunal has also considered whether the first named applicant is eligible for complementary protection.

10. Based on the findings above as to the first named applicant’s lack of credibility, the Tribunal is therefore not satisfied on the basis of the evidence before it that there is a real risk that he or his family will suffer significant harm on his return to Malaysia at the hands of the loan sharks, debt collectors, gangsters, Chinese Loan Company, Malaysians and triad gang for any of the reason he claims. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in subsection 36(2A).

    Assessment of Second Named Applicant’s Claims

11. On the basis of the applicant’s passport the Tribunal accepts that the second applicant is a national of Indonesia. The first named applicant’s evidence at the hearing was consistent with the evidence that the second named applicant is a citizen of Indonesia. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Indonesia is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Indonesia is the receiving country.

12. While the second named applicant submitted a PART C form she did not make any claims regarding a fear of return or difficulties faced in Indonesia. Rather she referred to the statement, the only one on file referring to the difficulties faced by the first named applicant in Malaysia as outlined above. There is no evidence as to how the difficulties claimed by the first named applicant in Malaysia would affect the second named applicant on return to Indonesia.

13. On the basis of the evidence before it as the second named applicant has made no claims or outlined a fear of return or difficulties faced were she to return to Indonesia or as a result of the difficulties claimed by the first named applicant in Malaysia, the Tribunal does not accept that there is a real chance the second named applicant would face serious harm if she returns to Indonesia in the reasonably foreseeable future. It follows the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm as defined in subsection 36(2A).

    CONCLUSION

14. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) and s.36(2)(aa). The Tribunal is not satisfied that any of the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).

    DECISION

15. The Tribunal affirms the decision not to grant the applicants protection visas.

    Gabrielle Cullen
    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.

    …