1712626 (Refugee)

[2020] AATA 5729

1712626 (Refugee) [2020] AATA 5729 (30 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712626

COUNTRY OF REFERENCE:                   China

MEMBER:Damian Creedon

DATE:30 November 2020

PLACE OF DECISION:  Perth

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

Statement made on 30 November 2020 at 2:07pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Yiguan Dao – vague and superficial evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASE
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 dependants.

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 30 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 23 June 2015.  The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

   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 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).

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.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

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background:

10. According to his protection visa application, the applicant is a [age]-year-old national of China. He was born in Fuqing City, Fujian Province and resided at a single address in Fuqing before coming to Australia.

11. The applicant arrived onshore [in] March 2008 as the holder of a Student (TU 571) visa.  From his arrival onshore until May 2008 he resided in [City 1] before he moved to [City 2].  The applicant returned to [City 1] in June 2015 and is presently resident there.

    Claims:

12. In a statutory declaration attached to his protection visa application[1] the applicant made the following written claims:

    [1] See Departmental File, folios 40 – 47.  

    a.The applicant claims to be a ‘faithful believer of Yiguan Dao’.  In a statutory declaration accompanying his application the applicant sets out in considerable detail his family’s history as followers of Yiguan Dao, beginning with his great grandparents.  He states that in the early 1950s Yiguan Dao was suppressed by the Communist government as a ‘reactionary society’ and he claims that his great-grandparents were arrested on account of their belief in Yiguan Dao and that they ultimately died in gaol.  He states that his grandfather avoided arrest with the assistance of [a named person], a fellow believer in Yiguan Dao, and relocated to Fujian Province.  He states that his grandfather was arrested in 1970 on account of his belief in Yiguan Dao and that he spent [number] years in gaol.  The applicant further claims that that during this period his grandmother was persecuted for her ‘implication’ his ‘grandfather’s case’, that she was ‘humiliated, abused, beaten and mistreated by others’. 

    b.The applicant states that he was born on [date] and that, in view of China’s ‘one child’ policy, ‘unexpectedly’ his mother become pregnant and his brother was born in [year].  The applicant claims that, due to work pressures on his parents, he was ‘more deeply influenced’ in his development by his grandfather, ‘particularly his belief in Yiguan Dao’; he claims:

    In [year], I started following my grandfather to study [the] teachings of Yiguan Dao when I was about 13 years old, because by grandfather thought that I was old enough to understand the teachings of Yiguan Dao.

    c.The applicant further claims that at ‘around’ this time his grandfather established a home temple to allow him to learn the ‘special rituals’ of Yiguan Dao, but that his instruction could only be taught orally as all relevant books and written materials had been destroyed during and after the Cultural Revolution.

    d.The applicant claims that in 2007 his grandfather heard that ‘many families’ send their children to study overseas and that his grandfather persuaded his parents to arrange for him to leave China so as to ‘learn and practice’ Yiguan Dao safely.  The applicant claims that, notwithstanding his grandfather’s ill-health, he arrived in Australia [in] March 2008.  The applicant further claims that his grandfather died in mid-April 2008 and that he had to ‘stop’ his study in Australia as he was unable to ‘catch up with the class’ due to his poor English and his family had accumulated ‘huge debts’ for organising his study and to pay for his grandfather’s medical costs.  Accordingly, he claims that he had to find work to help his family repay the debts.

    e.The applicant claims that in May 2008 he travelled to [City 2] as he had heard that jobs were easy to find.  He claims that, with the help of ‘a friend’ he found a Yiguan Dao temple at a nominated address in a [City 2] suburb.  He claims to have regularly attended the temple ‘every week’ for over seven years.

    f.The applicant claims that, since his arrival in Australia, he has maintained contact with his family and friends in China.  He claims that he converted one of his friends to Yiguan Dao; that his friend was arrested for practicing Yiguan Dao; that his friend ‘confessed everything’ to the arresting authorities, including the applicant’s role in his conversion; and that consequently his (that is the applicant’s) parents were subjected to investigation by the police.

    g.He claims that if he returns to China he will be arrested and imprisoned for his belief in Yiguan Dao.

    Evidence:

13. The Tribunal has before it a range of material, including, relevantly:

    a.The applicant’s protection visa application forms dated 13 July 2015, together with supporting documentation including a statutory declaration, several photographs and a Yiguan Dao ‘Initiation Card’ (visa application);

    b.The following documents:

    i.A letter dated 11 November 2020 from [Mr A];

    ii.A letter dated 12 November 2020 on the letterhead of ‘Yiguan Dao [Organisation 1]’ under the hand of [Mr B], described as ‘Master in Charge’,

    c.The applicant’s identity documents being a copy of his passport provided to the Department;

    d.The delegate’s protection visa decision record dated 30 May 2017 (delegate’s decision record); and

    e.The review application form which included a copy of the delegate’s decision record.

14. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s most recent ‘Country Information Report on the People’s Republic of China’, published on 3 October 2019 (DFAT Report).

    Country of reference / receiving country:

15. The applicant claims to be a Chinese national.  Based on the copy of his passport provided by the applicant to the Department, and in the absence of any other evidence to the contrary, the Tribunal finds that China is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Hearing:

    The applicant attended a hearing via video-link on 20 November 2020.  He was represented at the hearing.  The hearing was assisted by an interpreter in the Mandarin and English languages.  The Tribunal also received oral evidence from Mr [B] who described himself in the course of his evidence as a ‘Master of Yiguan Dao’.  Where relevant, the applicant’s and Mr [B]’s evidence to the Tribunal is referred to below.

    Assessment of Claims and evidence, and findings:

16. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

17. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

18. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’.  (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

19. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

    Analysis

20. For the following reasons, the Tribunal did not find the applicant to be a credible witness and has concluded that the decision under review should be affirmed

21. Firstly, in contrast to the detailed claims made by the applicant in his statutory declaration regarding his family’s history of Yiguan Dao discipleship, the Tribunal found the applicant’s oral evidence on this issue, including his initial exposure to Yiguan Dao in China, to be vague and unconvincing.   When asked when he first became a Yiguan Dao practitioner, the applicant stated to the effect that he was initiated on 5 May 2008 (that is, after his arrival onshore).  When pressed regarding his experiences of Yiguan Dao in China, the applicant stated that at the age of 13 he had ‘learned something’ of Yiguan Dao from his grandfather.  When further pressed, the applicant stated that he had learned ‘some customs and ceremonies’ from his grandfather, however he did not elaborate despite being invited to do so.  Notably, he made no mention in his oral evidence of the establishment of a ‘secret home temple of Yiguan Dao’ by his grandfather as outlined in his statutory declaration, nor did he provide any details of the oral teachings, ‘customs and ceremonies’ he claimed to have received from his grandfather.  Despite being pressed, the applicant’s evidence on these issues remained superficial in nature and focussed upon his experiences in Australia.  Of particular concern to the Tribunal was the superficial nature of his oral evidence when compared to the detailed claims made in his statutory declaration.  Overall, the Tribunal did not find the applicant’s evidence on this issue to be persuasive.

22. Secondly, the evidence presented to the Tribunal by the applicant in respect of his experience of arriving in Australia and his first months onshore, was materially inconsistent.  In his oral evidence the applicant stated that when he arrived onshore, he did not know anyone in Australia.  When pressed by the Tribunal as to whether he had planned to contact Yiguan Dao practitioners upon his arrival in Australia, the applicant stated that he did plan to do so, but that he did not meet any Yiguan Dao practitioners while resident in [City 1] between March and May 2008.  He stated that, upon arrival in Australia, his ‘major focus’ was academic (that is, non-religious) study, although he wished also to pursue studies in Yiguan Dao.  He stated that his first encounter with a Yiguan Dao practitioner in Australia was in [City 2] after he had relocated there from [City 1] in May 2008. 

23. In contrast to this evidence, the applicant’s witness Mr [B] stated in sworn testimony that he first met the applicant at a Yiguan Dao temple in [City 1] shortly after the applicant’s arrival onshore in 2008.  When pressed by the Tribunal as to the timing of this meeting Mr [B] stated:

    As soon as [the applicant] arrived in [City 1] a friend brought him to the Yiguan Dao temple.

24. When further pressed on the issue of timing, Mr [B] stated to the effect that ‘as soon as’ the applicant arrived in [City 1] in 2008 his ‘friend’ took him to the Yiguan Dao temple where Mr [B] first met him.

25. When Mr [B]’s evidence was raised with the applicant, the applicant did not comment upon the evidence or provide an explanation of the inconsistency despite being offered the opportunity to do so.  When the option was offered to him by the Tribunal, the applicant stated that he ‘agreed’ with Mr [B]’s evidence.  The inconsistency between the oral evidence of the applicant and Mr [B] raises, in the Tribunal’s mind, significant doubts in relation to the reliability and credibility of the applicant’s evidence overall.

26. Thirdly, the Tribunal found the applicant’s own account of his initial time onshore[2] and his first contact with Yiguan Dao practitioners in Australia to be unconvincing.  The applicant stated in evidence that upon his arrival in [City 1] he was enrolled in an English language course, but that he discontinued his studies after ‘one month’.  When pressed he offered two reasons for discontinuing: firstly, that his English-language proficiency was ‘too poor to catch up’; and secondly, that his grandfather had fallen ill (and had died) and that his parents had spent all of their money on medical treatment and were then in debt.  He stated that he had to work to help them repay that debt.  He stated that he saw a newspaper advertisement for a job in [City 2], ‘made a phone call’ and was offered the job.  When pressed on this decision, he stated that he could not find any jobs in [City 1] and that it was ‘easier’ to find jobs in [City 2]. 

    [2] That is, temporarily excluding, for the sake of analysis, the evidence of Mr [B].

27. The applicant stated that after he arrived in [City 2] he was exploited by his employers, not paid his wages, ‘locked up’, threatened and beaten.  The only particulars he offered as to his employers’ identity was that they were ‘Chinese people’.  He stated that he escaped from them and was left homeless and living under a bridge.  He stated that he was then approached by ‘someone’ who found him under the bridge and that that person was a Yiguan Dao practitioner.  He stated that the person took him into their home, and then took him to a Yiguan Dao Temple in [City 2] where he was initiated on 5 May 2008.[3]  When pressed by the Tribunal as whether the person who found him under the bridge was looking for him, or for people like him, given the coincidence of his being found by a Chinese-speaking Yiguan Dao practitioner, the applicant stated merely to the effect that the encounter was providential.  Despite being pressed, the applicant was unable to provide sufficient details or a coherent timeline of events to persuade the Tribunal of the veracity of these claims.  Overall, the Tribunal finds the applicant’s evidence on this issue to be highly implausible and unconvincing.

    [3] The Tribunal notes that the applicant’s ‘Yiguan Dao Initiation Card’ shows the applicant’s ‘date of initiation’ to be 5 May 2008.

1. Fourthly, in his evidence to the Tribunal the applicant displayed only a rudimentary knowledge of Yiguan Dao beliefs despite his claims in his statutory declaration and oral evidence to have been actively participating in, and studying, the belief system since May 2008.  His answers to the Tribunal’s questions regarding the fundamental doctrines of Yiguan Dao were basic in nature and, at times, required prompting.  In particular, the applicant’s evidence was insufficient to persuade the Tribunal that he held the depth of knowledge required to ‘spread the teaching’ to others, as he claimed in his statutory declaration, or to have converted ‘some of [his] friends’ to the belief, as he claimed in his oral evidence.  Notably, despite being pressed by the Tribunal, the applicant did not identify the individual named in his statutory declaration as one to whom he claims to have ‘spread the teachings’ of Yiguan Dao in China. 

2. The Tribunal notes that it is required to consider if the applicant would suffer serious harm in the future if he were to return to China for one or more of the reasons mentioned in paragraph 5J(1)(a) or if he were to suffer substantial harm.

3. Subsection 5J(6) of the Act provides that conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

4. The Tribunal has read and had regard to the letters referred to at paragraph [13.b] hereof and to the photographs and Yiguan Dao ‘Initiation Card’ submitted by the applicant in support of his visa application.  Notwithstanding these documents, when balanced against the unsatisfactory evidence offered by the applicant as to the state of his knowledge of Yiguan Dao, the Tribunal is not so satisfied as regards the applicant’s claims to be a practitioner of Yiguan Dao: ss.5J(6).

   Conclusions

5. For all the above reasons, the Tribunal did not find the applicant to be a credible and reliable witness. His evidence shows a propensity to shift and tailor claims in a manner which achieves his own purpose. The applicant’s evidence did not persuade the Tribunal that his claims to be a Yiguan Dao practitioner are credible.  Although the Tribunal accepts that the applicant may have physically attended a Yiguan Dao temple onshore, and become an initiate in the belief system, the applicant’s evidence is insufficient to persuade the Tribunal that the claims he makes regarding the depth and nature of his beliefs in Yiguan Dao can be substantiated.  Therefore, the Tribunal does not accept that there is a real chance or a real risk that he will face serious or significant harm in China for the reasons set out in his protection visa application or the reasons he provided to the Tribunal.

6. After considering all of the applicant’s claims, both individually and cumulatively the Tribunal finds that there is no real chance that the applicant will face serious harm in China for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

7. 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 there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

8. 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 criteria in s.36(2).

   DECISION

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

   Damian Creedon
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

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

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

   but does not include an act or omission:

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

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

   …

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

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

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

   …

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

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

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

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

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

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

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

   …

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

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

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

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

   5K    Membership of a particular social group consisting of family

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

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

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

   (i)the first person has ever experienced; or

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

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

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

   5L    Membership of a particular social group other than family

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

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

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

   (c)     any of the following apply:

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

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

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

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

   5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

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

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

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

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

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

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

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

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

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

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

   …