1708349 (Refugee)

[2017] AATA 2093

1708349 (Refugee) [2017] AATA 2093 (10 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708349

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Brendan Darcy

DATE:10 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 10 July 2017 at 2:56pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Economic hardship – Property dispute – Struggling financially in Malaysia – No protection obligation

LEGISLATION
Migration Act 1958, ss.5H, 5J, 5K-LA, 36, 65,91R,499

Migration Regulations 1994, Schedule 2

CASES
Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
MZZIA v MIBP [2014] FCCA 717
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 who claims to be a citizen of the Federation of Malaysia, applied for the visa [in] December 2016. The delegate refused to grant the visa on the basis that there was no obligation under international law to provide protection to people fleeing for economic reasons and because the applicant did not outline his claims in sufficient detail. .

   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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed:

   Background

10. The applicant claimed to be born on [Date of birth] in [a town] in the Malaysian state of Sabah and claimed to be a citizen of the Federation of Malaysia.

11. On departmental file [a] certified copy of the applicant’s valid passport issued by the relevant authority in Malaysia in 2016[1].

    [1] DIBP Folio 44

12. The applicant arrived in Australia [in] September 2016 while holding a [temporary] visa. On December 2016, the applicant applied for a class XA subclass 866 protection visa and was granted an associated visa.

13. As part of this written application at the time of application, the applicant claimed to be able to speak, read and write both English and Bahasa Malaysia. The applicant also claimed that his ethnicity was Dusan and that his religion was Muslim. The applicant further claimed that he had never been married or engaged or had been a in de facto relationship in the past and that he has no children.

14. In the applicant’s 886 Form for a protection visa, the applicant provided very limited claims for protection. The applicant claimed that he left his home country because of the economy is not stable and because he is liable to be declared a bankrupt if he returns to Malaysia.[2]

    [2] DIBP Folio 24

15. A delegate for the Minister examined the application for protection [in] March 2017.

16. The applicant applied to have the delegate’s refusal decision reviewed by the Tribunal on 17 April 2017. A copy of the delegate’s decision record was attached.

17. Submitted to the Tribunal was a 2010 paper entitled Malaysian Economy in Three Crises by Prema-chandra Athukorala, published under the auspice of the Australian National University.[3]

    Evidence at the Scheduled Hearing

    [3] AAT Folio 25-44

18. The applicant appeared before the Tribunal on 23 June 2017 to present evidence and arguments in support of his claims that he is owed Australia’s protection obligations. He was assisted by an interpreter in the English and Bahasa Malaysia languages.

19. The applicant elaborated on this background at the scheduled hearing: he restated his name and date of birth and claimed that that he has visited [Country 1] [in] 2002 and that he had travelled to [Country 2]. The applicant claimed that both his mother and father had passed away; that his father was born in a [city] in [Country 3], and that his father had worked in [a certain] industry in Sabah; and that he has [siblings], some of whom worked and lived in [various parts of Malaysia].

20. The Tribunal raised the matter of the applicant’s ethnicity and he stated that his ethnicity was Ambonese and that his agent who assisted him in his application made a mistake to state his ethnicity as Dusun.

21. The Tribunal noted that he claimed in his 866 Form that the applicant had never married. The applicant corrected this information and claimed that he was first married in 1990 and was divorced ten years later. From this initial marriage, the applicant claimed he had [number of children] who [are] currently residing in Kota Kinabalu in Sabah. The applicant claimed he married a second time and that he has [number of children] with his current wife, whom he claimed to be born in [Country 2] and was of [a certain] origin.

22. The applicant claimed that he had completed year [number] at secondary college and did not return to school. He claimed had worked [in various fields at various workplaces]. He elaborated that he had been [an occupation] for the last five or six years in Kota Kinabalu, right up to the point when he departed for Australia. 

23. The applicant explained that he came to Australia because he was told he could gain a bridging visa with work rights and he did not want to work in Australia unlawfully. He chose Australia because his friends told him about the job opportunities.

24. He also explained that there was a family dispute over property back in Sabah. The applicant claimed that there is a family house belonging to his wife and that is currently being occupied by his wife’s aunt. He elaborated that although it is his wife’s house, it was his father-in-law that insisted that his sister remains in the house without paying rent. The dispute is more than two years of age and that it is in the native court system (unique to Sabah in Malaysia’s legal system) and not yet resolved. The applicant said this disputed property was separate to where he was living with is wife and that his wife owned both properties. The applicant claimed he could no longer tolerate the stress arising from this property dispute and that there had been hot-tempered trouble at his residence among family members. He worries that his children may be hurt although they have never been threatened or harmed in the past.

25. The applicant also claimed that his had [an amount] in debt to a credit card when he arrived in Australia; that he has paid [some amount of] Australian dollars and that he has poor credit history back in Malaysia making it difficult to borrow money. The applicant said, however, he was not a bankrupt. He further stated he feared it would be too onerous to return to Malaysia as [an occupation] and because of the cost of living was rising, especially as [children] were growing older.

26. On 3 July 2017, the applicant provided a typed email outlining that the economic situation in Malaysia has worsen because of the introduction of a Goods and Services Tax in 2015; the eligibility of subsidies such as diesel fuel and rice; and because of corruption as exposed by the 1MDB scandal involving the Prime Ministers of Malaysian. He also mentioned that he wished to remain living and working in Australia for at least another six months so the applicant could save money and repay the debt. Accompanying this email was report about the number and nationality of unlawful non-citizens in Australia.[4]

    [4] AAT Folio 58-60

27. On the same day the applicant forward an email from a man [refuting] an exposé by Malaysian journalist, [about] the difficulties facing Malaysians who work on Australian farms[5].

    ASSESSMENT OF CLAIMS AND FINDINGS

    [5] AAT Folio 61

    Country of nationality

28. The applicant claims to be a citizen of Malaysia and provided copies of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.

    Third country protection

29. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility

30. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

31. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

32. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

33. During the scheduled hearing, it was clear to the Tribunal that the applicant’s protection visa claims had been largely written and submitted on his behalf. The applicant has limited education and he was unsure whether or not the agent who was assisting him was registered. During the hearing, it was apparent that many aspects about the applicant’s personal circumstances were in correct. For instance, the applicant’s 866 form stated he has never been married or lived in a de facto relationship and no indication that he has children; where as in the hearing, the applicant claims that he has been married twice and that he has [number of children] from two marriages. In this regard, the Tribunal places little weight in the accuracy of the information submitted at the time of applicant and more on the information provided at the hearing.

34. Furthermore, the Tribunal found the applicant, who has very limited education,  was able to respond to the Tribunal’s in a straightforward and convincing manner, although at times he struggled to describe his and that the applicant’s oral evidence at the scheduled hearing to have been credible and reliable.

35. Accordingly, the Tribunal accepts that the applicant’s claims at the hearing about his personal circumstances, including that he been married twice; [he has number of children].

36. As claimed at the hearing, the Tribunal accepts that he left school early and that he has been employed or self-employed in a various unskilled or semi-skilled occupations and that in the last five or six years as [an occupation], including right up to the time of his departure.

37. Furthermore, the Tribunal accepts the applicant’s religion is Muslim; that his father was originally from a [city] in [Country 3]; and that that his ethnicity is Ambonese as claimed at the hearing and that he is not Dusun or ethnically indigenous to Sabah or anywhere else in Malaysia as claimed in his written claims at the time of application.   

38. With regards to the applicant’s critical claims at the hearing, the Tribunal accepts that the part of the reason for departing Malaysia for Australia was due to the applicant struggling financially in Malaysia and that he had credit card debt and a poor credit history. By the applicant’s own admission at the scheduled hearing, it does not accept that the applicant was a bankrupt as claimed in his written claims at the time of application. The Tribunal accepts that the applicant was advised that there were better job opportunities in Australia and he applied for a protection visa, in part, to gain work rights while holding associated bridging visa while the substantive visa application was being assessed, as claimed. 

39. The Tribunal also accepts that part of the reason for his departure was due to a family dispute between him and his wife, on one side, and the applicant’s [other relatives] on the other as claimed and outlined above. It also accepts the claim that this dispute has been two or more years old, that it is yet to be settled in a local or native court in the Malaysian state of Sabah and the applicant found the acrimonious behaviour of his [other relatives] to be distressing and he was genuinely concerns for the safety of his children.

40. The Tribunal also accepts that the economic or financial reasons for departing Malaysia for Australia were also heightened by his paternal responsibilities as a breadwinner towards his second wife and their [children].  

41. However taking all these accepted circumstances together, the Tribunal accepts that the applicant, if he were to return to his home city of Kota Kinabula in state of Sabah, he will not face a real chance of serious harm for any reason outlined in s.5J(1)(a). As discussed in the scheduled hearing, the applicant will be able to return to a residence with his second wife and children. The applicant informed the Tribunal that while he abruptly left after a fighting with his wife, he is not divorced or separated and that he is regular contact with his wife and he remains committed to earning money for the family unit. The Tribunal notes that he does not have any ongoing material obligations with his earlier family as his first wife has remarried. The Tribunal accepts that there will be some difficulties and lingering tensions over the unresolved property dispute between the applicant’s own family and his [other relatives] and that the applicant had found it distressing in the past. The Tribunal notes that no physical harm has been claimed by the applicant towards him or anyone else arising from this dispute. Based on the applicant’s oral evidence, the Tribunal does not accept this dispute is characterised by any past or ongoing acts of physical violence and that the parties are using the available courts to resolve the matter.  For these reasons, the Tribunal finds that the applicant will face a real chance of harm, such as distress, verbal arguments and the possibilities that they may lose the disputed property or be liable for legal costs, arising from this dispute if he returns to Kota Kinabula. However the Tribunal does not accept that the applicant, the applicant’s wife or any of his children will face a real chance of harm that will amount to significant physically ill-treated or psychical harassment over this dispute or suffer any severe economic hardship or denial of access to basic services or economic rights that threatens the applicant’s capacity to subsist or any other harm, including serious harm non-exhaustively relevantly listed under s5J(5), arising from this dispute specifically.

42. The Tribunal accepts that the applicant will face cost of living expenses and the challenges of finding work or generating an income. This was discussed at some length in the Tribunal in the context of available country information as well as based on his accepted personal circumstance. It was noted that the economic situation in Malaysia was broadly positive with its economy growing in real terms and in sophistication based on country information from the most recent DFAT report. It reports that the economy in the applicant’s country of nationality enjoyed around 4.5 per cent economic growth, relatively low inflation and that poverty rates were 2.2 per cent for ethnic Malaysia. The Tribunal also raised with the applicant that the poverty rate had fallen significantly in Sabah to about 4 per cent in 2014 compared to 19.7 per cent in 2009.[6] During the hearing, the Tribunal noted the submitted academic report on the Malaysian report and informed the applicant that the information appeared dated and irrelevant given it was published in 2010. The Tribunal also notes that the applicant claims the economic situation has deteriorated because of the introduction of the GST, the availability of subsidies and corruption in a post hearing submission. In this regard, the Tribunal accepts these are relevant concerns, even to low income Malaysian where such issues impact negatively. However the overall country information still indicates the relative prosperity and rates of poverty in Malaysia are low or negligible and do not support the overall claim by the applicant that the economic situation has deteriorated in his country of nationality. It also notes that the applicant wished to remain in Australia for a further six months to pay off this debt, indicating to the Tribunal that the level of debt cannot be described as crippling. The Tribunal places little emphasis on these challenges when it is argued the applicant will not able to re-enter the workforce as [an occupation] or an owner-operator of [business]. In this regard, the Tribunal has assessed that the country information supports the applicant returning to an economic environment where poverty is relatively low in Sabah, where the economy is relatively sound throughout Malaysia and where other job opportunities are available. The Tribunal accepts that the applicant will face a real chance of harm arising from his responsibilities in paying down credit debt, providing for a family and even having a poor credit history, as well as in finding work. The applicant is obviously strongly motivated to find work or generate an income and he will not be without the emotional and material support of his family.  Based on the available evidence, the prospects of finding work or generating an income, as well as paying down any outstanding debts based on the applicant’s circumstances will be challenging and onerous but the Tribunal does not amount to the applicant facing a harm that will amount to serious harm, in the sense that the applicant or his family will experience severe economic hardship or deny them capacity to earn livelihoods that threatens the person’s capacity to subsist or the applicant and his family will be denied access to basic services, where the denial threatens the person’s capacity to subsist or another serious harm non-exhaustively listed under s.5J(5) of the Act.  Accordingly, the applicant does not have a real chance of serious harm arising from his economic circumstances for reasons mentioned in s.5J(1)(a) or in combination with the aforementioned property dispute, if he were to return to Malaysia from Australia, now or in the reasonably foreseeable future.

    [6] Poverty rate in Sabah dropped to 4ppct in 2014, malaysiakini.com, 25 October 2016 type="1">

43. Moreover, the Tribunal notes that the applicant did not advance any claim that he will be harmed based on his ethnicity or religion. With regards to the applicant’s accepted claims to have a real chance of harm arising from economic hardship, difficulties in his family life and a property dispute, individually and cumulatively considered, the Tribunal does not accept he will face a real chance of harm based on to his ethnicity, his religion or any other reason mentioned in s.5J(a), if he were to return to Kota Kinabula specifically or Malaysia more generally.

44. Having assessed all of the applicant’s claims, individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a),(b) or (c), if he is returned to the Federation of Malaysia, and does not satisfy the criterion in s.36(2)(a).

    Complementary Protection Criterion

45. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa).

46. The Tribunal has considered if there are any reasons to substantial reasons to believe, the applicant  will face a real risk of significant harm arising from the applicant’s economic circumstances or arising from his personal circumstances, including those claims about a property dispute among family members, as contemplated by s.36(2)(aa). Significant harm is different from the concept of serious harm as required by 91R(1)(b) in the context of s.36(2)(a).[7]  The Tribunal has already made a finding that the applicant has the capacity and inclination to find work anywhere in Malaysia and does face a real chance of harm that does not amount to serious harm based on these specific claims. It has made a similar finding that the applicant will face a real chance of harm amounting to serious harm arising from specific claims about a property dispute. The Tribunal similarly and consistently finds that there are substantial grounds for it to believe that the applicant will face a real risk of harm arising from these claims, both individually and cumulatively considered, if the applicant were to be removed from Australia for Malaysia.

    [7] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].

47. However, the Tribunal does not accept that the harm to be faced by the applicant will amount to significant harm for the following reasons:

48. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support himself and his family, as well as paying down debt, if removed from Australia, it does not accept the applicant will not be able to access paid employment in Kota Kinabula or anywhere in Malaysia, given his motivation and the country information about the economy in Sabah and Malaysia more generally. It does not accept  that as a necessary and foreseeable consequence of being removed from Australia, that those challenges and difficulties amount to significant harm as required by s36(2A).  Furthermore the Tribunal finds there is no intention on the part of the governing of the Malaysian economy in combination of market forces to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference. While the applicant will return to Sabah to where he is involved with a property dispute between family members as claimed and he will have a real chance of some harm arising from this accepted dispute, the Tribunal does not accept the harm will amount to significant harm. This is based on the oral evidence that there is an absence of any past physical harm or harassment or any past or ongoing threats to arbitrarily deprive the applicant or any family members of their lives, to torture them or to have them punished through long term imprisonment that would amount to cruel or inhuman treatment or punishment. Neither does the Tribunal accept that the distress or emotional injury arising from the dispute will amount to degrading treatment or punishment.

49. The Tribunal, accordingly, does not have substantial reasons for believing the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia for Kota Kinabula specifically or Malaysia more generally, based on the applicant’s economic circumstances or the applicant’s property dispute or in combination, will amount to significant harm that would satisfy s.36(2A).

50. Furthermore and for completeness, there is also no suggestion that the applicant will face a real chance of capital punishment according to any of his claims and circumstances.

51. Having assessed all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Federation of Malaysia there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of her life; the death penalty will be carried out on him; he will be subject to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treating or punishment, pursuant to s.36(2)(aa) of the Migration Act.

    Conclusions

52. 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 the Act for the reasons mentioned in s.5J(1)(a), (b) and (c). Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

53. 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).

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

    DECISION

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

    Brendan Darcy
    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.

    …