1707360 (Refugee)

[2021] AATA 4470

1707360 (Refugee) [2021] AATA 4470 (20 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707360

COUNTRY OF REFERENCE:                   Korea, Republic Of

MEMBER:L. Symons

DATE:20 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 20 October 2021 at 5:33pm

CATCHWORDS
REFUGEE – protection visa – South Korea – fear of harm from unfamiliarity, social stigma and discrimination, and unemployment and poverty – long residence as visa holder and unlawful non-citizen – work experience and adaptability – secondary applicant already returned to home country and in receipt of government welfare payments and services – country information about social security – dependent Australian citizen child due to complete high school in 2022 – request for referral for ministerial intervention declined – decision under review affirmed

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

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 5 April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The primary applicant, who claims to be a citizen of the Republic of Korea (South Korea), first arrived in Australia [in] September 1999 as the holder of a Student visa (TU-560). On 12 April 2000, she applied for and was granted a Tourist visa (TR-676). On 30 June 2000, she lodged an application for a Student visa (TU-560) which was granted on 17 January 2001. [In] May 2001, she departed Australia. On 17 July 2001, her Student visa (TU-560) was cancelled under section 128 (holder outside Australia). [In] August 2001, she arrived in Australia as the holder of an Electronic Travel Authority (Visitor) visa (UD-976).

3. On 29 October 2001, the primary applicant was granted a dependent Temporary Business Long Stay visa (UC-457). On 11 August 2004, her Temporary Business Long Stay visa was cancelled under section 116 (general power) as she was no longer in a relationship with the primary visa holder. On 25 August 2004, she commenced review of the decision to cancel her Temporary Business Long Stay visa in the Migration Review Tribunal (MRT). [In] February 2005, the MRT set aside the cancellation of the Temporary Business Long Stay visa. On 28 October 2005, she applied for a dependant Temporary Business Long Stay visa (UC-457) which was granted on 21 December 2005.

4. On 11 April 2008, the primary applicant lodged an application for a dependant Temporary Business Long Stay visa (UC-457) which was refused on13 May 2008. On 6 June 2008, she lodged an application for a dependant Temporary Business Long Stay visa (UC-457) which was withdrawn on 28 August 2008. On 31 March 2009, her Temporary Business Long Stay visa (originally granted on 21 December 2005) was cancelled under section 140 (consequential cancellation). On 21 April 2009, she commenced review of the decision to cancel her Temporary Business Long Stay visa in the MRT and she was granted a corresponding Bridging visa E (WE-050). [In] June 2009, the MRT decided that it had no jurisdiction to determine the application. On 23 July 2009, her Bridging visa E expired and she became an unlawful non-citizen.

5. The applicant applied to the Department of Immigration (the Department) for a Protection visa (XA-866) on 6 June 2016. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 6 April 2017, she applied to the Tribunal for a review of that decision.

6. The secondary applicant, who is the mother of the primary applicant, claims to be a citizen of South Korea and a member of the same family unit as the primary applicant.

7. The primary applicant appeared before the Tribunal via video on 19 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

8. The applicants were represented by their migration agent, [Mr A], who attended the hearing visa telephone.  

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

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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

16. The primary applicant’s claims in her application for Protection visas are summarised as follows:

    ·She was born on [date] at Busan in South Korea. She is a citizen of South Korea.

    ·She first arrived in Australia [In] September 1999 as the holder of a Student Guardian visa (Subclass 560).

    ·If she returns to South Korea, she will suffer from social stigma because she is not familiar with the “Korean system” and the social environments. This would result in her being stigmatised as a “social loser” and she would be persecuted by the general public.

    ·She will be discriminated against in relation to employment, residence, and her children will be discriminated against in their school.

    ·She cannot relocate within South Korea because the concept of social loser is prevalent throughout Korea.

    ·She will not be protected by the South Korean government because there are no relevant laws in operation. Even if there were relevant laws in operation, they would not provide sufficient protection.

17. The secondary applicant is the mother of the primary applicant. She did not make any claims in her own right and claimed to be a member of the same family unit as the primary applicant.

18. The applicants provided the Department with copies of the biodata page of the primary applicant’s passport issued by the Republic of Korea [in] 2004 and expired [in] 2009 and the biodata page of the secondary applicant’s passport issued by the Republic of Korea [in] 2009 and expired [in] 2019.

19. The applicants provided the Tribunal with a copy of the Department’s Decision Record dated 5 April 2017.

    Primary applicant

    Country of reference

20. The primary applicant claims to be a citizen of South Korea and has provided a copy of her South Korean passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of South Korea. The Tribunal finds that South Korea is the country of reference for the purpose of assessing her claims for protection under the refugee criteria and the complementary protection criteria.

    Third country protection

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

    Assessment of claims

22. The primary applicant gave evidence to the Tribunal that her application for Protection visas was prepared by her migration agent on her instructions which were true and correct. She was satisfied that her visa application was accurate and complete. There have been no changes in her personal circumstances since she filed her application for Protection visas other than the fact that the secondary applicant returned to South Korea 3 ½ years ago.

23. During the hearing, the Tribunal discussed with the primary applicant her background, her family, her education, where she lived in South Korea, her employment, her travel overseas, and why she fears returning to South Korea.

24. The primary applicant gave evidence that she completed High School in South Korea and then went to University. She was halfway through her course when she was expelled from University and did not complete the course. She then went to [Country 1] for 2 years to undertake studies there. She thereafter came to Australia. She got married and has two children of her marriage. Her daughter is almost [age] years old, lives in Canberra, attends University there, is doing an internship and works part time. Her son is [age] years old, is in High School, will be doing his HSC next year and is working part time. He lives with her in [Town 1]. She is divorced from her husband. He is estranged from their children. Both her children have been granted Australian citizenship.

25. The primary applicant gave evidence that her mother is over [age] years old ([age] years). She lived in Australia for 15 years. She was not in good health so she decided to return to South Korea. She returned to South Korea 3 ½ years ago. She is in receipt of accommodation, financial assistance and medical benefits from the South Korean government as she is over 70 years. She lives on her own. She also has a younger brother who lives in Australia. He is a permanent resident in Australia.

26. In her visa application, the primary applicant stated that she was self-employed as the Manager of a [business] from 2009 until the date of the visa application (1 June 2016).                 The Tribunal discussed her current financial circumstances with her. She initially gave evidence that she does not have a job. She later stated that she has several sources of income which she receives in cash. There are many aged people in the area she lives in at [Town 1]. They employ her to clean their homes. She also rents rooms in her house to tourists. Her children also support her financially. She has a car, savings of about $5,000.00 and a credit card debt of $5,000.00.

27. The Tribunal discussed with the primary applicant her claims in her visa application that if she returns to South Korea she will suffer from social stigma because she is not familiar with the “Korean system” and the social environments, this would result in her being stigmatised as a “social loser” and she would be persecuted by the general public. She stated that she has spent almost half of her life in Australia and has not been involved with the South Korean community for a long time. Her financial interactions have been in Australia and she does not have anything in South Korea. It would be very hard for her to return to South Korea and live there. Her relationships are based in the community in [Town 1] and that is the most important thing.

28. The Tribunal asked the primary applicant why she claimed that she will be discriminated against in relation to employment and residence and her children will be discriminated against in their school. She responded that her children do not have any reason to go back to South Korea. They were much younger at the time of her visa application. When asked whether she had any concerns about being discriminated against, she responded that she is a divorced woman. She will not have children living with her. She has been living outside the South Korean culture for a long time. In South Korea, females who are divorced and living by themselves are not considered to be human beings and are considered to be things. That kind of concept still exists in South Korea.

29. The Tribunal asked the primary applicant why she claimed that she cannot relocate within South Korea because the concept of social loser is prevalent throughout Korea. She responded that a female person living by herself will be marked as a loser in society even if she relocates. When asked why she claims that she will not be protected by the South Korean government because there are no relevant laws in operation and, even if there were relevant laws in operation, they would not provide sufficient protection, she responded that the family registry is a male dominant registry and a female will be considered a possession.

30. The Tribunal pointed out to the primary applicant that South Korea is a democratic country that has in force anti-discrimination laws. She responded that she believes that South Korea is a good country but the registration system with the concept that females belongs to males has not changed. When asked how her mother was able to return to South Korea (after living in Australia for 15 years) and register her household, she responded that the government provides welfare support for people who are over 70 years and she returned based on that.

31. The Tribunal noted that if the primary applicant returns to South Korea, she would not be a single woman on her own as she would be with her mother. She responded that she would then be a carer for her mother and she will not get welfare support from the government. When asked how her mother was able to settle back into South Korean society as a divorced woman who has been living in Australia for 15 years, she responded that while her mother was in Australia, she and her brother supported her. When she turned 70 years, she was able to go back to South Korea.

32. The Tribunal pointed out to the primary applicant that she is an experienced business woman who has assets in Australia that can be sold and used to set up her own business in South Korea. When asked whether there was any reason why she could not set up her own business in South Korea, she responded that she has not had financial transactions in South Korea and questioned how she could start a business there. The Tribunal pointed out that she had no business experience when she came to Australia. She responded that Australia and South Korea are different. In South Korea, without a mortgage you cannot do anything at all. In Australia there is a manager system where owners authorise managers to set up businesses. Korea does not have that.

33. The Tribunal asked the primary applicant why she needed to have a mortgage and a manager system in South Korea if she had the money to set up and run a business. She responded that the Australian system allows for weekly payments but the South Korean system requires a lump sum of money. The Tribunal pointed out that she appeared to know a lot about the South Korean system for someone who claimed not to know the “Korean system”. She responded that she was talking about what it was like 20 years ago. Nothing much has changed since then. When the Tribunal pointed out that a lot has changed in South Korea over the last 20 years, she agreed. South Korea has changed. She tried to find if she could live in South Korea but found that she could not.

34. The Tribunal asked the primary applicant what she thought would happen if she returned to South Korea. She responded that she will probably live on alcohol like a drunkard. In Australia, even if a person is poor there are opportunities to live. In South Korea, unless a person is over 70 years there are no opportunities unless a person has a substantial amount of money. She has spent almost half of her life in Australia and is now getting old ([age] years). Without a substantial amount of money, going back to South Korea and adopting the life and culture there will be difficulty. If she was granted a “lawful visa” and the opportunity to work in a “normal way” she was sure she could earn income, pay tax and be a good citizen.

35. The Tribunal discussed with the primary applicant country information on South Korea which indicates that the law prohibits discrimination in employment or occupation on the basis of gender, nationality, social status, religion, or disability.[1] She responded that she agreed with that one hundred percent. It is a small country with a lot of people and it is very competitive in relation to careers. She does not have a career so it makes it almost impossible. She has a [age] year old son who is going to graduate next year. She would like him to go to University. She requested that she be allowed to stay in Australia until then.

    [1] Country Reports on Human Rights Practices for 2020 - Republic of Korea, US Department of State, 30 March 2021, 20210406095838 p 31.

36. The Tribunal discussed with the primary applicant country information on South Korea’s welfare system that provides cash payments and other benefits, such as housing and education, for citizens living in poverty and noted that she would be able to obtain assistance from the government until such time as she is able to obtain employment.[2] She responded that she is aware of that but according to the family registry her husband has not divorced her. Her evidence is that she and her husband were divorced in Australia and she is therefore able to obtain a Divorce Certificate as evidence of her divorce.

    [2] Basic Livelihood Security Programme, Ministry of Health and Welfare, Republic of Korea. (Ministry of Health & Welfare : Health Statistics > Basic Livelihood Security Program: Benefit Recipients & Payment (mohw.go.kr))

37. Having considered all the evidence, the Tribunal notes that the primary applicant has not provided the Department or the Tribunal with any independent evidence, including country information, to support her claims. During the hearing, she appeared to resile from some of her claims and stated that it had been some time since she filed her visa application. She made assumptions based on her experiences 20 years ago. Her main concerns appeared to be in relation to ensuring that her son completed his HSC and the difficulties in re-integrating into South Korean society as a divorced female on her own after an absence of 20 years.

1. The Tribunal accepts that it will be challenging for the primary applicant to adjust to living in South Korea again after an absence of 20 years. However, she has demonstrated that she is an adaptable and resourceful person. She has lived and studied in [Country 1] for 2 years and in Australia for 20 years living in a different culture and speaking a different language. In South Korea, she will have the benefits of having lived there during her formative years, been educated that, speaking the language, being familiar with the culture and having the support of her mother.

2. The primary applicant has also obtained considerable work experience in a variety of jobs in Australia including at least 6 years’ experience managing a [business]. She has assets in Australia that can be sold to assist her to set up a [business] in South Korea. She has some experience in the tourism industry in that she rents rooms to tourists and is able to speak a little Japanese and English.  

3. The primary applicant’s evidence is that her mother is divorced, over 70 years old and in poor health. She has been able to re-integrate into South Korean society and live on her own as a single divorced woman after an absence of 15 years during which time she lived in Australia. No evidence has been presented to the Tribunal to indicate that she has had any difficulty re-integrating into South Korean society including in relation to obtaining a family register.

4. The Tribunal accepts that the primary applicant may face some discrimination in society because she is a female who is divorced, on her own and has returned to South Korea after an absence of 20 years during which time she lived and worked in Australia. However, the Tribunal is not satisfied, on the evidence before it, that it would amount to persecution. 

5. The Tribunal is not satisfied that the primary applicant is at risk of serious harm or significant harm for any of the reasons claimed if she returns to South Korea now or in the reasonably foreseeable future. 

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

6. Having considered all of the primary applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that she will suffer serious harm for reason of her actual or implied membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act if she returns to South Korea now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she 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 she does not satisfy the criterion in s.36(2)(a) of the Act.

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

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

8. Having considered all of the primary applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that she will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to South Korea now or in the reasonably foreseeable future.    

9. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to South Korea, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act. 

   CONCLUSION

10. For the reasons given above, the Tribunal is not satisfied that the primary 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.

11. There is no suggestion that she 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, she does not satisfy the criterion in s.36(2) of the Act.

    Secondary applicant

12. Under s.65(1) of the Act, a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa has been met. So far as is relevant to this matter, s.36(2) of the Act provides that a criterion for a Protection visa is that an applicant for the visa is a non-citizen in Australia. This means that a Protection visa may only be granted if the applicant is in Australia.

13. The primary applicant gave evidence at the hearing that the secondary applicant returned to South Korea (permanently) 3 ½ years ago. This is consistent with the records of the Department that indicate that she departed Australia [in] April 2018. She was the holder of a Bridging visa E prior to her departure and that visa ceased on her departure on 23 April 2018.

14. The Tribunal is satisfied from the circumstances set out above that the secondary applicant is not in Australia. Therefore, the secondary applicant does not satisfy the requirements of s.36(2) of the Act and cannot be granted a Protection visa.

15. Having reached this conclusion, it is not necessary to consider the secondary applicant’s substantive case for the grant of the visa.

    Ministerial intervention

16. At the end of the hearing, the applicants’ migration agent submitted that if the Tribunal were to affirm the decision made by the Department, it consider referring this case to the Minister with a request for Ministerial intervention. He submitted that it falls within the Guidelines for Ministerial Intervention in that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit. He submitted that the primary applicant’s son is an Australian citizen, is [age] years old and is dependent on her for at least another year.

17. The Tribunal has considered this request in light of the evidence and submissions before it including the primary applicant’s immigration history in Australia as set out in the Department’s Decision Record she filed with the Tribunal. The Tribunal has declined to refer this case to the Minister. This does not prevent the primary applicant from making such a request to the Minister.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Protection visas.

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

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(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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