1727960 (Refugee)

[2022] AATA 1473

1727960 (Refugee) [2022] AATA 1473 (8 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727960

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Sean Baker

DATE:8 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 08 April 2022 at 4:11pm

CATCHWORDS
REFUGEE – Protection visa – Iraq – fear harm from militias – friendship with and interaction with friend – no real risk the applicant will suffer significant harm from the Badr Organization – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Iraq, applied for the visa on 2 June 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant engaged Australia’s protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

   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 (Cth) (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 there is a real chance the applicant will be persecuted on return to Iraq or, if not, there is a real risk he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background and Migration History

10. The applicant was born on [date] in [Baghdad], Iraq. He is a [age]-year-old male of Iraqi nationality. He claims ethnicity from the Arabic Mousawoui tribe and to be of Shia Muslim faith. At the time of application, he claimed to speak, read and write Arabic.

11. At the time of the application the applicant’s parents, [number of siblings], all continued to reside in Iraq, and he claimed to maintain regular contact with them.

12. Prior to his arrival in Australia the applicant claims to have travelled to Iran for a religious pilgrimage on unspecified dates, [Country 1] in 2010 to holiday and [Country 2] in 2013 to meet his then fiancé, now ex-wife.

13. Movement records show the applicant was granted a TO-300 Prospective marriage visa on 5 May 2014. He first arrived in Australia on [date] June 2014 and married his ex-wife in January 2015, the TO-300 visa ceased on 5 February 2015.

14. On 10 February 2015 he was granted a Bridging Visa C and on 12 February 2015 a UK-820 partner visa.

15. The applicant returned to Iraq from [June] to [July] 2015.

16. On 6 October 2015 a delegate for the Minister refused the applicant a subclass 801 Partner visa on the basis of the breakdown of the relationship with his ex-wife.

17. In his statement attached to his application the applicant claimed that:

    ·     The applicant is a Shi’a.

    ·     He has [number of] siblings who live in Iraq.

    ·     There were many conflicts between Sunni and Shi’a when he was growing up.

    ·     He spent most of his life in Baghdad which was known as the city of unrest.

    ·     He has witnessed several attacks. The government is unable to provide security.

    ·     At university he developed a strong friendship with a man named [Mr A]. They both decided to stay away from militias.

    ·     They kept in close contact with each other, even when he left to come to Australia to be with his fiancée.

    ·     He had trouble in his marriage, so he travelled to Iraq [in] June 2015 to give him and his wife time away from each other. After two months he returned to Australia.

    ·     He returned to Iraq at that time to comfort his sick mother.

    ·     In Iraq he spent some time with his family and friends including [Mr A]. He was surprised to learn [Mr A] had got a job working with the Iraqi police forces. He did not ask [Mr A] about his rank but noticed he did not wear his uniform to work and seemed worried.

    ·     When they went out [Mr A] seemed worried, and the applicant thought he was trying to protect the applicant as the security situation was bad.

    ·     Once he met [Mr B], [Mr A]’s supervisor, who seemed to be a very nice person. They discussed the problems of the militias and the police force.

    ·     The applicant was interested in the job and asked [Mr A] about it in case his marriage did not go well. They needed to do some background checking of the applicant and his family and then an entry interview.

    ·     However, in July 2015 he found out his ex-wife removed her sponsorship of him and so he returned to Australia. He could not save his marriage.

    ·     Around this time, he became aware [Mr A] had been shot, he was not clear on the reasons, but it appeared mainly because of his job.

    ·     His partner application was refused, and he wavered on returning to Iraq. He decided to withdraw the appeal of his partner application and return to Iraq.

    ·     However, his family became aware of new information at this time. [Mr B] had been attacked and killed. The applicant’s family had received a threatening letter which contained a bullet. The applicant believed that because [Mr A] had spent time with the applicant, the Badr organisation militia had spotted them and had linked the applicant to [Mr A]. The Badr organisation had taken charge of the Ministry of the Interior.

    ·     The applicant fears he will be targeted for his association with [Mr A] and [Mr B].

    ·     He cannot relocate as he would be identifiable as someone who had moved, and this would bring him to the attention of the militias.

18. The applicant provided a certified copy of his Iraqi passport, birth certificate and identity documents from Iraq. On this information I accept that the applicant is a national of Iraq. He does not have a right to enter and reside in any safe third country.

19. The applicant provided a photograph of what he claimed was the threat letter containing the bullet.

20. He provided evidence consistent with the above in his interview with the Department.

21. The delegate considered the claims and refused the application on 2 November 2017.

22. To the Tribunal the applicant provided a copy of his Victorian driver’s licence. After the hearing he provided a statement and his wife, and her parents also provided statements.

    Concerns about the credibility of the applicant’s claims

23. 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. 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, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

24. The applicant claims to fear harm from militias due to his friendship with and interaction with his friend [Mr A] and meeting [Mr A]’s boss when he returned to Iraq in 2015. However, I developed concerns with the plausibility of this claim. Further, the detail of these events as told to me by him at the hearing differed in important respects to those he had made before the Department. These concerns lead me to hold doubts that many of the applicant’s claims are true.

    Plausibility

25. The central concern is with the plausibility of the claim. The applicant claims that because of his friendship with [Mr A], [Mr A]’s work with the police force chasing criminals, and his meeting [Mr A] several times on his return to Iraq in 2015 as well as [Mr B], the applicant will be harmed by the Badr Organization or other militias or gangs on return to Iraq. There are several difficulties with this claim. The first is that the applicant appears to have had very little contact with [Mr A] or [Mr B] in 2015, at hearing he claimed he had only seen [Mr A] one or two times, and [Mr B] had been at one of those occasions. His contact with them appears very minimal. This is despite his claims that he was interested in a job with the police forces and discussed this with [Mr A]. The applicant made no mention of  any claimed background checking of the applicant and his family nor an entry interview. The applicant claims that because of this minimal contact, people wish to harm him even some seven years after his travel to Iraq and had more recently delivered a threatening letter to his family with a bullet and also thrown a hand grenade into his families front yard area, although as below he has differed on when these things have occurred. The level of continuing interest appears to me implausible given his very brief association with [Mr A] and [Mr B], and this level of interest in someone only briefly associated with government employees is not reflected in the country information.[1] This becomes of even greater concern when considered with the fact that two of the applicant’s brothers work for the central [government]. His father had also served in the Iraq army before he retired. He said that the family and these two brothers do not have any enemies because they did not pose any harm to anyone.

    [1] See DFAT Country Information Report Iraq, 17 August 2020, [2.54 – 2.61]; [5.8 – 5.11], see also DFAT Country Report Iraq, 13 February 2015.

26. When I put this to the applicant, he said that the Badr organisation was a powerful organisation that had influence in Shia areas. He did not respond to concerns about the plausibility of his claims given the low level of contact he had had with [Mr A] and [Mr B].

27. I find that the applicant’s claims are not plausible – even if militia wished to harm [Mr A] and [Mr B] for their work, I do not accept that the level of contact the applicant had with them would lead to the Badr Organisation, other militias or anyone else wishing to harm him, either in 2015 or now, seven years later.

    Inconsistencies

28. The applicant’s claims at hearing about his return to Iraq, meeting [Mr A] and his boss and other important aspects of his claims appeared materially different to his written claims. For example, the applicant claimed at hearing that he had met [Mr A] only one or two times when he returned to Iraq in June 2015 and did not mention the claimed background checking and entry interview. In his application he said that he had met [Mr A] at his workplace many times during his visit. At hearing he said that he (the applicant) had spoken to [Mr A] about the job [Mr A] was doing and that he (the applicant) was really worried about [Mr A], but that [Mr A] did not seem to care that much or share the applicant’s concern. In his application he said that [Mr A] had seemed to be very worried and careful. At hearing the applicant mentioned meeting [Mr B] but said that he had not spoken to [Mr B] at any length as his (the applicant’s) relationship was with [Mr A]. In his written application the applicant claimed he had discussed the problems of the militias and the police force with [Mr B].

29. When I put these inconsistencies to the applicant, he said that because it had been a long time since these things had happened, he had forgotten the details. He said he had overlooked that he had also gone to [Mr B]’s workplace during his evidence at the hearing. In his statement post hearing he noted that the reason for these inconsistencies was due to the period of time between his statement and the hearing.

30. I have carefully considered the applicant’s responses, but I find they do not discharge my concerns. These are clear inconsistencies with key parts of his evidence. I accept that it has been many years since the claimed events, but these were parts of his evidence that I asked him about numerous times and in different ways. They are aspects of his claims which relate directly to the level and form of his relationship with [Mr A] and [Mr B] whilst he was in in Iraq and therefore are vital to him establishing that these events did in fact occur. Given these inconsistencies I find he has not established that any of these events occurred and this leads me to disbelieve they have occurred and to doubt other aspects of his claims.

31. Secondly, at the hearing, the applicant did not mention that [Mr B] had been attacked and killed. When I raised this with the applicant, he stated that the reason he had not said this was that I had not asked him whether [Mr B] was killed or still alive, the applicant had just been answering the questions I had asked.

32. I do not accept this explanation. The applicant was asked open questions to elicit as much information as possible. I asked him, a number of times, if there was anything else that had happened that related to his claims. I do not accept that the applicant would fail to recall and mention the killing of the other person he claimed to have met and who led, he claims, to him being targeted by the Badr Organization or others. I find his failure to mention this until I raised it with him, in the context where he was given every opportunity to discuss it earlier, leads me to doubt that [Mr B] was killed as the applicant has claimed, and to doubt other aspects of his claims.

33. Third, the applicant claimed that the threat letter on the Department file, the threat letter containing a bullet, was sent to his family in 2018 or 2019. He said that this was sent shortly before a grenade was thrown into his family’s front yard in 2019. I asked the applicant about the date and sequence of events a number of times and he was very clear that there had only been one letter containing a bullet, and that it had been sent to his family in 2018 or 2019, and explained that this indicated that this, along with the grenade thrown a month after the letter, indicated continuing interest and hostility towards him from the militias. Towards the end of the hearing, I put to the applicant a concern that his timing did not appear correct, because the photograph of the threat letter appeared to have been provided to the Department with other documents in October 2017, or at the latest by November 2017 when the decision was made by the delegate. This meant it appeared the threat letter could not have dated from 2018 – 2019 as he had claimed

34. The applicant responded that it was true that it was sent in 2016 not 2019, it was due to confusion on his part, but that the grenade was thrown in front of their house in 2019 as he had said.

35. I do not accept the explanation of the applicant. I am willing to accept that, after some time, the applicant may not be able to locate with precision when the threat letter with bullet was sent to his family. But there is a significant inconsistency here, even allowing for such imprecision, which leads to me to have significant doubts that the threat letter was sent to his family at all. In considering this I have considered that such an event would have been significant, the applicant described that the sending of a letter with a bullet signified that a militia or group would then kill an individual. Given the significance of this event, I do not accept that the applicant would not be able to state when this was delivered to his family. This leads me to disbelieve that this threat letter, a photograph of which was provided to the Department, is a genuine threat letter that was sent to his family with a bullet from a militia or other group intending to harm the applicant, and to doubt other aspects of his claims.

    Conclusions on credibility

36. As I put to the applicant, the concerns above also lead me to have concerns about the general credibility of his claims.

37. Having carefully considered the concerns above, and my findings in relation to these concerns, I find that the applicant’s claims are not credible. When considered, the claims lack plausibility as outlined above and the applicant has provided inconsistent evidence about key aspects of his claims, leading me to disbelieve the claims in total.

    Findings

1. On the basis of my credibility findings, I find that:

   ·The applicant’s friend [Mr A] did not work for the Iraqi police forces or any other government position. The applicant has not been linked with [Mr A] by the Badr organisation militia or anyone else.

   ·The applicant did not discuss work or working for the police force with [Mr A] or with [Mr B] in 2015 or at any time. There was no background checking nor entry interview.

   ·[Mr A] was not shot, by militias or anyone else.

   ·[Mr B] was not attacked and killed.

   ·The applicant’s family in Iraq did not receive a threatening letter which contained a bullet, nor has a grenade been thrown into their front yard.

   ·The applicant and his family have not been harmed or threatened in any way.

2. I have had regard to the photograph of the threat letter, but on my findings above I find that this letter was manufactured for the purpose of the review.

3. I do accept that the applicant is a Shi’a, that he has two brothers who work for the government and that his family continue to live in Baghdad. I accept that he travelled to Iraq in 2015 but on my findings above I do not accept any of the claims he has made about what happened there at that time. I accept that he may have witnessed attacks when he was growing up.

4. I accept that the applicant’s previous marriage failed.

5. However, he has remarried, and I accept that he is in a committed relationship with his wife, an Australian permanent resident and soon to be an Australian citizen, and that they have two young children together. I accept that the applicant is a productive member of Australian society with his own business employing 20 people. I accept the evidence of the applicant, his wife and his father-in-law that the applicant is a committed husband and father. Having regard to the applicant and his wife’s evidence at hearing and their statements provided after the hearing I accept that the removal of the applicant from Australia would create many difficulties for their family. I have had regard to the strong sentiments in his statement, that of his wife and of his father-in-law provided after the hearing, I accept that this is a very difficult time for the family, and I am very sympathetic to the situation of the applicant and his Australian born children. But as I explained to the applicant at the hearing, the assessment that must be made is whether the applicant is owed protection.

6. I find on the evidence of the applicant and his wife that the applicant’s wife and children would return with him to Iraq if he was removed. I have assessed his claims on this basis.

7. I accept that the applicant would return to Iraq with his family and would live in the Shi’a area of Baghdad where his parents and siblings live.

8. I accept that the applicant is apprehensive about the general security situation in Iraq. I noted to him that the situation in terms of sectarian violence has improved markedly since he was there.[2] He did concede that in Shi’a areas there was some safety.

   [2] DFAT Country Information Report Iraq, 17 August 2020, [2.54 – 2.61].

9. I accept that the applicant would return having lived in Australia for many years. I noted to the applicant and he accepted that there is no official or societal sanction on returnees, that successful and failed asylum seekers return to Iraq is well accepted amongst Iraqis.[3]

   [3] DFAT Country Information Report Iraq, 17 August 2020, [5.43 – 5.46].

   Will the applicant face a real chance of persecution if he returns to Iraq?

10. The applicant claims to fear he will be targeted for his association with [Mr A] and [Mr B] by the Badr organisation or other militia groups. For the reasons above I do not accept that there is any real chance of the applicant facing serious harm for any reason connected to his claimed association with [Mr A] and [Mr B] by the Badr organisation, other militia groups or anyone else.

11. I find that the applicant would return to Iraq with his wife and children. I find that they would return to the family home of the applicant, in a Shi’a area of Baghdad. I find that, having worked previously in Iraq and having set up and run his own company in Australia, the applicant would be able to find work and support his family.

12. Having regard to the country information before me, I find that security varies by location, and that, as the applicant conceded, safety is largely location based, and as a Shi’a family in the Shi’a areas of Baghdad, there is no real chance the applicant or his family would face serious harm for sectarian reasons. Having regard to the country information before me, whilst I accept that there is a level of generalised violence, I find that the chance of the applicant and his family being caught up in generalised violence in Baghdad, as opposed to a rural area, the Kurdish governorate or former Daesh areas of control is much lower and below the level of a real chance.

13. I find that there is no real chance the applicant will suffer serious harm amounting to persecution for reasons of his actual or imputed political opinion or for any other reason from the Badr Organization, other militia, other groups or anyone else on return to Iraq, now or in the reasonably foreseeable future.

    Is there a real risk the applicant will suffer significant harm if he is removed from Australia to Iraq?

14. As above, I have found on the basis of my credibility findings that the applicant will not be harmed harm for any reason connected to his claimed association with [Mr A] and [Mr B] by the Badr organisation, other militia groups or anyone else. On the same reasoning I find that there is no real risk the applicant will suffer significant harm for any reason connected to his claims.

15. As above I have found that the applicant would return to Iraq with his wife and children. I find that they would return to the family home of the applicant, in a Shi’a area of Baghdad. I find that, having worked previously in Iraq and having set up and run his own company in Australia, the applicant would be able to find work and support his family.

16. Having regard to the country information before me, I find that security varies by location, and that, as the applicant conceded, safety is largely location based, and as a Shi’a family in the Shi’a areas of Baghdad, there is no real risk the applicant or his family would face significant harm for sectarian reasons. Having regard to the country information before me, whilst I accept that there is a level of generalised violence, I find that the chance of the applicant and his family being caught up in generalised violence in Baghdad, as opposed to a rural area, the Kurdish governorate or former Daesh areas of control is much lower and below the level of a real risk.

17. I find that there is no real risk the applicant will suffer significant harm from the Badr Organization, other militia, other groups or anyone else on return to Iraq, now or in the reasonably foreseeable future.

    Conclusion

18. 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 s 36(2)(a).

19. 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).

20. 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

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

    Sean Baker
    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.

    …