1716219 (Refugee)

[2021] AATA 487

1716219 (Refugee) [2021] AATA 487 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716219

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Nora Lamont

DATE:16 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 February 2021 at 3:47 pm

CATCHWORDS
REFUGEE – protection visa – Lebanon – ethnicity, religion and imputed political opinion – Alawite Shia Moslem – fear of harm by radical Sunnis – credibility – inconsistent claims and evidence – visa history, including tribunal and court reviews of refusal, period as unlawful non-citizen and delay in applying for protection – no evidence of harm – country information – constitutional freedom of religion and effective protection by government – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (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 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 6 July 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 Lebanon, applied for the visa on 22 March 2016.

3. The applicant appeared before the Tribunal via video due to COVID 19 on 4 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented by a registered migration agent and solicitor and the agent attended the hearing via telephone.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. According to the information on the Departmental file and confirmed at the hearing, the applicant was born on [Date] in [Village] Akkar Lebanon. The applicant is married with a small child.

12. The applicant travelled to Australia on a valid Lebanese passport and states that he is a national of Lebanon. The delegate had no concerns about the applicant’s identity. Therefore, the Tribunal has assessed the applicant’s claims against Lebanon as his country of nationality and receiving country.

13. The applicant’s migration history is as follows:

    • [date]/09/2010: Applicant arrived in Australia on a subclass 309 visa
    • 03/08/2012: Subclass 100 visa refused
    • 14/08/2012: Subclass 309 visa ceased
    • 24/08/2012: Application for review of 100 visa refusal lodged with AAT
    • 19/10/2012: No Jurisdiction decision made by AAT
    • [date]/11/2012: Judicial review of subclass 100 refusal lodged
    • [date]/11/2013: Judicial review outcome – Minister win
    • 24/12/2013: Bridging visa A ceased
    • 22/02/2016: Protection visa application lodged
    • 06/07/2017: Protection visa refused
    • 26/07/2017: Application for review of Protection visa refusal lodged with AAT

    Claims

14. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as necessary and foreseeable consequence of him being removed from Australia to his receiving country of Lebanon, there is a real risk that he will suffer significant harm.

15. The applicant’s claims are outlined in a statutory declaration dated 26 February 2016 and are contained in the Departmental file: [1]

    [1] [File number]

    ·I am Allawi and all Allawi’s are imputed to being supporters of the Syrian Asaad Regime. This imputation is merely on the basis that the President of Syria is Allawi and on the basis of the current Syrian civil war in which the minority Allawi population in Syria support the President.

    ·As Allawi’s we fear being harmed by radical Sunni’s, who continue to target the minority Allawi population in Lebanon.

    ·Deadly clashes between the minority Allawi and the majority Sunni population of Tripoli. The Allawi population in Tripoli (Jabal Mohsen) have been besieged by Sunni Militants ever since the start of the Syrian civil war.

    ·The armed forces Hizb Al Arabi Al Democrati inside Jabal Mohsen have been capable of protecting then and repelling the Sunni attacks.

    ·The situation for Allawi’s living outside Jabal Mohsen particularly the pockets of Allawi’s who live in the Sunni dominated Akkar region, the security situation for them is far more precarious as they are not protected by any Allawi armed forces.

    ·My village is situated in the Akkar region in which is dominated by Sunni’s and remains a hot bed of Sunni extremism. My village is a tiny village, consisting of only approximately [number] inhabitants.

    ·Since 2011, there have been scores of attacks on our tiny village and tens of Allawi’s have either been killed or kidnapped in these frequent attacks. Given the dangerous security situation for Allawi’s the majority of the Allawi population have either relocated to Jabal Mohsen where they are protected by the Allawi armed forces have relocated to Allawi dominated areas in Syria.

    ·Due to ongoing security concerns, my parents have relocated to Jabal Mohsen along with my [brothers] and [sisters]. Another 2 sisters have relocated to Syria.

    ·My brothers do return from time to time to our village to check on our family home. But such trips are relatively short and are fraught with danger.  They risk being kidnapped or killed each time they return to our village.

    ·From time to time, radical Sunni forces set up check points along with Akkar roads for the primary purpose of detaining Allawi’s. Such checkpoints have been set up in an area situated in Akkar region called Shiek Ayash.

    ·Could relocate but need to continuously visit these areas for the purpose of worshipping.

    ·Other than a few Allawi villages located in the Akkar region and Jabal Mohsen there are no Allawi Mosques anywhere else in Lebanon. But then I risk be subjected to kidnapping or possibly being killed by armed Sunnis.

    ·There have been ongoing intermittent clashes between Sunni and Alawi since the start of the Syrian civil war.

    ·The Lebanese military are themselves fighting Sunni radicalism and have been largely ineffective in controlling the Lebanese borders.

    ·Lebanese security is not capable of protecting the Allawi population in Tripoli. They have to arm themselves. Other Allawi’s living in areas such as Akkar having been forced to relocate to Jabal Mohsen or to Syria in light of the ineffective protection that is being offered by the Lebanese authorities.

    ·Sunni militancy is increasing in Lebanon, threatening the minority Allawi population but also the Lebanese territorial sovereignty along the Syrian border, with armed Sunni militants such as Al Nusra and ISIS taking a foot hold in Akkar and the Bekka region.

    Delegate’s decision

16. The Delegate was not satisfied that the applicant was a credible witness and that he misled the Department with his changing evidence of his family and their movements.

    Tribunal Hearing

17. At the Tribunal hearing the applicant said he first arrived on a spouse visa but that his wife did not want him, and her family wanted him to leave. He didn’t know what to do and during the three years he was unlawful he didn’t know he was unlawful. He was living in Sydney with a friend and after a while he asked someone to call immigration on his behalf.

18. The applicant told the Tribunal that the Alawite community was always in danger and if the Sunnis caught you, they could kill you. The applicant said because the Syrian President Assad is an Alawite he was imputed as an Assad supporter just based on being an Alawite. They would say to him “you should go back to your country”. The Tribunal asked how often this was going on? He said it wasn’t something that happened every day, but it was always in his mind—they had checkpoints and if they discovered you were an Alawite, they would harass you. The Tribunal asked how the people at the check point would know they were Alawite and he said there was only small villages so they could recognise him. This was around 2005 and they were ordinary people at the checkpoints not the army.

19. The Tribunal asked him about his claim to have been shot at. The applicant said that there was random shooting at times and he and others would hide in the bush. The Tribunal asked the applicant if he had ever lived in Jabal Mohsen to which he said no. He said that they would escape and seek refuge in Jabal Mohsen, it was calmer than his village.

20. The Tribunal noted that things had changed in his home area since he left in 2010 to which the applicant responded that despite the government doing their best, they have not been successful and there are demonstrations. The Tribunal read the applicant country information from DFAT: [2]

    The conflict in Syria has increased tensions between communities in a number of areas. Historical
    tensions between Sunnis and Alawites in the adjoining Tripoli neighbourhoods of Jabal Mohsen
    

    [2] DFAT Country Information Report Lebanon 19 March 2019 page 16

    (predominantly Alawite) and Bab-al-Tabbaneh (predominantly Sunni) escalated in the early stages of the Syria conflict, particularly around ‘Syria Street’ (the dividing line between the two communities), leading to regular rounds of communal violence that killed over 200 people. Lebanese authorities implemented a security plan in April 2015 that re-established a Lebanese Armed Forces presence in the area. DFAT understands that this has succeeded in significantly reducing the number of serious incidences of communal violence, although underlying tensions remain.

21. The applicant responded that yes you are right the army is back and the government interfered, and the army came, they are close to each other. They tried to reconcile.

22. The Tribunal also put to the applicant that Lebanon has a very open society when it comes to religion and the constitution allows all religions to practice and Alawites are included in the government. [3]

    Article 9 of the Constitution states that there shall be absolute freedom of conscience and respect
    

    [3] DFAT Country Information Report Lebanon 19 March 2019 page 19

    for all religions and creeds. It guarantees that the state shall protect the free exercise of all religious rites provided that public order is not disturbed, and that the personal status and religious interests of all religious sects shall be respected.

23. The applicant responded that yes you are totally right and that some Alawites can enter government after they have been in the government. The issue with the parties is that there are radicals and extremists and the Sunni’s represent a danger for minorities, they may have a Fatwah, or they may say Alawites should be killed.

24. The Tribunal asked what he thought would happen to him should he be returned to Lebanon and his village. He said he didn’t know what to expect it was totally unpredictable. He has a daughter now, and he is married.

25. The applicant said he still practices as an Alawite and goes to the mosque in [Suburb] NSW. He said there are no Alawite mosques outside of Jabal Mohsen so he could not live somewhere else and attend mosque. He is also a farmer so he cannot live somewhere like Beirut. The Tribunal asked him since he is [an Occupation] here in Australia why couldn’t he be [an Occupation] there? He said it wouldn’t work and he could not be [an Occupation] there.

26. The Tribunal put further country information to the applicant that indicates violence between religions has decreased and that Lebanese authorities are committed to preventing religious violence: [4]

    Violent clashes with religious overtones have been less common in Lebanon in recent years. Where
    violence has occurred between communal groups (such as between Alawites and Sunnis in Tripoli), it has generally been low-level and localised in nature (see Security Situation). Lebanese religious leaders and state authorities are sensitive to the potential impact of communal violence on national security, including the possibility that external conflicts with sectarian dimensions (particularly the Syria conflict) could impact on the coexistence of religious communities in Lebanon. The Criminal Code contains a number of provisions prohibiting calls to strife and sedition on religious grounds, including Articles 295, 308, 310, 313, 317, and 318.

    DFAT assesses that Lebanese authorities are committed to preventing violence between religious
    

    [4] DFAT Country Information Report Lebanon 19 March 2019 page 20

    communities. DFAT assesses that members of recognised religious groups do not face any official discrimination on the basis of religion. Members of recognised religious groups who are in the minority in particular geographic areas may face low-level societal discrimination, which may include being precluded from access to employment or housing but is unlikely to include violence. This assessment also applies to members of unrecognised religious groups. Official discrimination against this group is discussed in the following section.

27. The applicant responded that the situation is unpredictable and there will be more trouble. Most of the population is against the government and no one is ready to comply.

    424AA

28. The Tribunal put to the applicant formally under 424AA adverse information that would be the reason, or part of the reason, for affirming the decision under review and told the applicant this was subject to any comments or responses that the applicant made. The Tribunal put to the applicant the following information:

    Your claims are inconsistent in your Protection Visa application at Question 94 you said your mother died in 2000 and my father died in 2009 leaving behind [number] children. However, in a statutory declaration received by the Tribunal in 2017 you stated your parents were alive and residing in Jabal Mohsen on a temporary basis. You said they relocated from Dhar El Kanbar to Jabal Mohsen due to security concerns.

    The consequence of this information is that it leads the Tribunal to not trust the evidence you have been giving.

    Further, you have been in Australia for ten years. You were in Australia for six years prior to applying for a protection visa and you spent three years unlawful. Given the time that has passed since your arrival to the time of your protection visa application leads the Tribunal to believe your claims have not been urgent and that you were looking for a way to stay in Australia. It could lead the Tribunal to believe your claims are contrived for immigration purposes.

29. The applicant said he would respond and that he would be honest and frank. The applicant said in regard to the inconsistency with my father and mother there was probably a time when I misunderstood. They are dead and I cannot understand how this misunderstanding happened.

30. In relation to the six-year gap between arrival and applying the applicant said when he first arrived, he was on a spouse visa and problems arose. He had no idea about the rules or the regulations. He was shocked when they took his visa away. Then he got a letter telling him he had 21 days to leave the country. His lawyer told him to put in for family violence against his wife and her family. He asked for a different way. He left Melbourne and went to Sydney. He was lost, he had started to build a network and he was in debt. He borrowed a good deal of money. He was told he lost the case and owed the court $7000. He consulted a new lawyer. He said he made a lot of mistakes but that he always wanted to work and live lawfully and never wanted to be unlawful and he did not do any of it deliberately.

    Credibility

31. In assessing the applicant's credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the  of asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation.

32. 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, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

1. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

2. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (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).

   Findings

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

4. The Tribunal accepts that the applicant is an Alwite and that he currently practices his religion in Australia. Further, the Tribunal accepts that the applicant lived in a village near the Syrian border, that there was some violence and outbreaks during his time prior to arrival in Australia and that skirmishes broke out during certain periods of time. However, the Tribunal could not find that the applicant was harmed or targeted based on his religion. His evidence about his time in the village or in Jabal Mohsen was cursory and he did not provide any evidence to the Tribunal that he had been harmed based on his religion. The Tribunal is aware that there has been tensions and violence between the Sunnis and the Alawites and that the applicant was caught up in this in the past, but country information clearly shows that the current situation is stable and has been since 2015.

5. The Tribunal finds that the applicant is not a credible witness. The applicant has provided confusing and inconsistent evidence. The applicant in his own Statutory Declaration stated his parents and siblings fled to Jabal Mohsen and stayed there for a period of time. However, he then changed his evidence that they stayed in the village and did not relocate to Jabal Mohsen and the total time they would have been in Jabal Mohsen was maybe one month of time. He also states his parents were alive, yet now he says they are deceased. The Tribunal does not in fact know whether his parents are deceased or alive. The Tribunal did put this information to the applicant formally under 424AA and the response was that he didn’t understand how this information came about, it was a mistake and maybe it had to do with language. However, the Tribunal considers that the inconsistencies have been ongoing in many documents attached to his file and this further leads the Tribunal to find he is not a credible witness.

6. The Tribunal was unable to find any current country information that indicates that the applicant would be targeted and harmed based on his religion as an Alawite. Country information indicates that Lebanon has an open religious tolerance and Alawites are represented in the government. The Tribunal then considers that the applicant could expect that the government would offer him effective protection. Indeed, the army has set up in his home area and all indications are that it has calmed any ongoing tensions.

7. Further, the Tribunal has considered that the applicant was in Australia for six years before applying for protection. The Tribunal considers that the applicant has a level of capability to understand and deal with complex situations, such as considering his visa status in Australia. The considerable delay of six years in lodging his protection visa is of serious concern to the Tribunal.

8. The Tribunal considers that had the applicant held a genuine and urgent fear of persecution arising from his circumstances, it considers that the applicant would have sought to lodge a protection visa application much earlier, and the delay leads to consideration that his claims in this regard are not genuine or urgent.

9. Overall, and considering the above country information the Tribunal does not accept that the applicant will face a real chance of persecution based on being an Alawite and for his religious beliefs.

   Conclusion

10. Given these findings the Tribunal does not accept that if the applicant returns to Lebanon, he will face a real chance of persecution based on his religion. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).

11. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Lebanon, there is a real risk that the applicant will suffer significant harm for his religion and as an Alawite. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).  

12. 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

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

    Nora Lamont
    Member

    
    

    Submissions

    AAT file 1716219

    • No submissions made prior to hearing

    Department File [Number]

    • Email from Representative to Delegate dated 20/02/2017 – providing a copy of the applicant’s Lebanese passport and evidence confirming that the applicant is a member of the Alawi sect.
    • Republic of Lebanon Family Entry Statement of the Residents’ 1932 Census Register – copy of original and translation
    • Ministry of Interior, Lebanon, Personal Entry Statement of the Residents’ 1932 Census registry in the applicant’s name – copy of original and translation
    • Copy of Family Civil Status Register, in applicant and his wife’s names – copy of original and translation
    • Form 866B – Persons included in this application and family composition, dated 20/02/16 and received 01/03/16
    • Identification photos of applicant
    • Form 956 – Advice by a migration agent/exempt person of providing immigration advice
    • Applicant’s Statutory Declaration, declared 26 February 2016
    • Copy of applicant’s Lebanese passport, expiring [2015]
    • Copy of applicant’s Lebanese passport, expiring [2011]
    • Form 866C – Personal details for each person included in this application, dated 20/02/16 and received 23/02/16
    • Form 866B – Persons included in this application and family composition, dated 20/02/16 and received 23/02/16
    • Copy of photo ID card in applicant’s name, issued in Australia

    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.

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    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.

    …