1804886 (Refugee)

[2024] AATA 2937

1804886 (Refugee) [2024] AATA 2937 (10 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804886

COUNTRY OF REFERENCE:                   China

MEMBER:Shahyar Roushan

DATE:10 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 10 July 2024 at 11:09am

CATCHWORDS
REFUGEE – protection visa – China – indebtedness – religion – Yi Guan Dao – low level of involvement – decision under review affirmed

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

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

BACKGROUND

1. The applicant is [age]years old and a national of China. She arrived in Australia [in] April 2017 with her husband on a Visitor visa. She became an unlawful non-citizen [in] July 2017 and lodged an application for a Protection visa on 16 August 2017.

2. On 6 February 2018, a delegate for the Minister of Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

3. The applicant did not provide a response to a number of questions in her Protection visa application. According to the responses provided, she completed ‘middle school’ and resided at a single address in Fuqing, Fujian Province. She identified her religion as I-Kuan Tao (also known as Yi Guan Dao and Yiguandao (YGD)) and indicated that her ‘partner’ is also currently in Australia.

4. In response to questions in relation to her reasons for claiming protection, the applicant made the following claims.

5. She is a follower of YGD, a ‘severely persecuted’ religion in China. The Chinese Communist Party has arrested the ‘main members’ of the religion and has seized their properties. They also used other ‘methods’ of persecution such as ‘litigation, penalty, threatening and harassment’. She was on the ‘government's blacklist’, was ‘falsely imprisoned’ and ‘constantly threatened’ by the authorities. Her whereabouts were ‘tracked’, and she was ‘monitored’ by the authorities ‘as they regarded us as cult’.

6. She was ‘practicing worship of I-Kuan Tao with other believers’ when they were arrested and accused of ‘disrupting public order.’ They were subjected to ‘inhumane treatment’ in the process. She was ‘frightened and couldn't go to sleep.’ She ‘reported’ to the authorities after she was released, but she was threatened and could not find ‘an authority to appeal.’

   The interview

7. The applicant attended an interview with the Department on 25 January 2018. The interview was conducted with the assistance of an interpreter in the Mandarin and English languages. The relevant aspects of the applicant’s oral evidence at the interview are referred to in the analysis further below.

   The delegate’s decision

8. As already indicated, a delegate of the Minister refused the Protection visa application. The delegate was not satisfied that the applicant is a refugee as defined by s 5H(1) and a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk they will suffer significant harm. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

   The review application

9. The applicant applied for a review of the delegate’s decision on 23 February 2018 and provided a copy of the delegate’s decision record to the Tribunal.

10. The applicant appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.

    The relevant law

11. 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, she 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.

12. 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.

13. 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).

14. 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.

15. If a person is found not to meet the refugee criterion in s 36(2)(a), she or she may nevertheless meet the criteria for the grant of the visa if she 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 she 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

16. 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

    Analysis, reasons, and findings

17. For the following reasons, I have decided to affirm the decision under review.

    The debt

18. I asked the applicant at the hearing why she did not wish to return to China. She responded that she is in a lot of debt and her creditors will go to her house to find her. She said her husband took high interest loans, totalling approximately 5 or 6 million RMB to invest in a ‘project’ and purchase goods. They lost the money invested in the project and the sale of the goods purchased did not cover the debt amount. Although the loans were in her husband’s name, she helped him borrow the money and shares responsibility for the debt. People have been going to her home in China and ‘quarrelling’ with family members. They could be sued and their property, an old house they own, confiscated.

19. The applicant’s evidence at the hearing raised significant concerns in my mind as to the reliability of her evidence regarding this claim. The applicant did not mention this debt or any fears arising as a consequence of being in debt in China in her Protection visa application. She attended an interview with the delegate and was provided with the opportunity to put forward additional information and expand upon her claims. As already noted, she submitted a copy of the delegate’s decision record to the Tribunal. The decision record contains a detailed summary of the applicant’s oral evidence to the delegate at the interview. I have listened to the audio recording of the interview, and I am satisfied that the delegate’s summary accurately reflects the applicant’s oral evidence at the interview. At that interview, the applicant told the delegate that her in-laws were running a business and incurred a debt. Her in-laws and her own parents borrowed money to send the applicant and her husband to Australia to work. Despite her lack of contact with her husband, she believed her husband was still in Australia (at the time of the interview) because he needed to earn enough money to repay the debt incurred by his and the applicant’s parents. The applicant also referred to unpaid social compensation fees incurred as a result of her children being born before her marriage to her husband was registered. However, she also confirmed that she and her husband have not received any invoice or notice for paying the social compensation fees. The applicant’s claims regarding the debt at the interview were manifestly different to her evidence at the hearing. At the interview, she made no mention of any substantial high-interest loans (equivalent to over A$1 million) taken by her husband in China for which she also shared responsibility and she made no references to fearing creditors.

20. The belated nature of the applicant’s claims regarding the debt was put to her at the hearing. She responded that she was very nervous at the interview and could not remember what she had said. She did not offer an explanation as to why the claim was not raised in her Protection visa application. When I put to her that I might draw an inference unfavourable to the credibility of the claims that were not raised before the primary decision was made, she stated this was the first time she has had such an experience and she might not be able to answer ‘on the spot’. I did not find these explanations convincing. As already noted, the applicant did, in fact, make references to a debt owed by her family in China at the interview. However, the evidence she put forward at the hearing regarding the debt differed significantly from her evidence at the interview. She also made no references at the hearing to any unpaid social compensation fees.

21. My concerns were further exacerbated by the unpersuasive nature of the applicant’s evidence at the hearing in response to specific questions regarding the debt. For example, she simply referred to ‘family and friends’ when I asked her from whom her husband had borrowed the money and did not offer any other meaningful details. When I queried about the source of the considerable funds that these individuals from rural China were able to loan her husband, she said some people have savings and want to offer loans to make money by charging an interest. In my mind, without more, this response does not satisfactorily explain how her family and friends, collectively or otherwise, had access to such a significant capital to offer her husband amounts totalling 5 or 6 million RMB over a period of approximately six years (from the time the applicant entered into a relationship with her husband until their departure from China).  

22. I am of the view that the applicant’s claims at the hearing in relation to the nature of the debt, the amount of the debt and her fears regarding the consequences if the debt was not paid are belated inventions and not credible. I do not accept the claims raised by the applicant at the hearing in relation to the debt. I do not accept that the applicant’s husband, with assistance or input from the applicant, took high interest loans totalling approximately 5 or 6 million RMB from family and friends in China for the reasons provided by the applicant at the hearing. I do not accept that creditors have been going to the applicant’s home in China and arguing with family members. I do not accept that the applicant fears harm from any creditors. I also do not accept that the applicant is required to pay any social compensation fees in relation to any or all of her children. I am prepared, however, to accept the oral evidence given by the applicant to the delegate at the interview that her father-in-law had accrued business related debts, that her parents and her in-laws had borrowed money to enable her and her husband to travel to and work in Australia and that the couple had felt obliged to provide financial assistance to their parents to repay their loans. According to the applicant’s evidence at the hearing, both her and her husband have been working continually since 2017 and have been sending money back to China. I do not accept that the financial arrangements entered into by the applicant’s parents and in-laws give rise to a real chance of persecution with respect to the applicant in China. I also find that there is no real risk that the applicant would face significant harm in China as a consequence of any money borrowed by her parents or in-laws or in relation to any other debt.  

    YGD

23. The applicant’s evidence at the hearing in relation to why and how she was introduced to YGD in China was consistent with her oral evidence to the delegate. I accept that the applicant was initiated into and started practising YGD in May or June 2016. According to her evidence at the hearing, this practice took the form of attending a weekly gathering of YGD practitioners in a practitioner’s house, where they offered ‘incense’ and recited verses or ‘sutras’. Other than also reciting verses in the privacy of her own home to feel calm, she did not practise YGD in any other way in China. I accept that the applicant continued to practise in this manner for a period of three or four months and until September 2016, when one of the gatherings was raided by the local authorities and many of the participants, including the applicant were arrested and detained. The applicant stated at the hearing that she was released after her family found a ‘solution’ by using a ‘connection’ to secure her release. I’m prepared to accept this claim. I also accept that the applicant stopped practising YGD following her release from detention.

24. In her Protection visa application, the applicant claimed that she was tracked, monitored and threatened as YGD was regarded as a ‘cult’. At the interview, she told the delegate that she was ‘blacklisted’ and the authorities ‘monitored’ all her movements. She further claimed that she and her husband travelled to Xi'an, Shaanxi Province, in order to obtain their passports to travel to Australia as she was unable to obtain a passport through ‘normal’ processes in Fujian. She claimed that she would come to the adverse attention of the Chinese authorities if she were to return to China. At the hearing, however, I asked the applicant if any conditions were attached to her release from detention. She replied she was asked not to go to the temple anymore. When I asked if she was subject to any other conditions, she said no. Later in the course of the hearing, I put to the applicant that her evidence in this regard did not appear to accord with her claims before the department that she was blacklisted and monitored. She responded this was the reason why she had travelled to Shaanxi to obtain her passport.

25. According to DFAT,

    5.31    Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including tax, customs, police or judicial authorities…

    5.33    If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons..

    5.35    DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[1]

    [1] ’DFAT Country Information Report - People's Republic of China,’ DFAT, 21 December 2021.

26. As noted by the delegate in his decision and as I put to the applicant at the hearing, her passport was issued by the Chinese authorities in her own name. Based on her own evidence at the hearing, she departed China legally from [Fuzhou] and without experiencing any difficulties. This suggests that she was not on a ‘blacklist’, her movements were not monitored, and she was not of adverse interest to the Chinese authorities. She responded the reason she joined YGD in China was the level stress she had felt as a result of the debt. She did not provide any other meaningful explanation and did not claim that the authorities had made any enquiries in relation to her directed at her family following her departure from China.

27. I find that following her release from detention in China, the applicant was not blacklisted, monitored or ‘constantly threatened’, and that she was not of any adverse interest to the authorities before she travelled to Australia.

28. The applicant stated at the hearing that in Australia she was taken to a YGD place of worship in Sydney in November 2017. She provided the Tribunal with a copy of an initiation card, showing that she was initiated at a temple in Sydney [in] November 2017. She stated that she attended this temple for prayers every now and then until early 2020 and stopped due to COVID-19 restrictions. She also confirmed that she has not attended the temple since then. When asked if she has been practising YGD in any other way, she replied she recites the ‘five words’ or the mantra (a reference to the five-word vow (wuzikoujue), which is a part of the three ‘treasures’ or rituals associated with YGD initiations) [2] when she walks home alone at night. I also asked the applicant a number of questions in relation to the beliefs and practices of YGD. The applicant’s responses were mostly confined to banal generalities. For example, when I asked her who is the founder of YGD, she said she is not very educated, so she does not know much about the patriarchs. When I asked what YGD practitioners believe in, she responded they follow the Buddha and when I asked her what distinguishes YGD followers from other Buddhists, she said she believes in Wutai Buddha and only knows that her anxiety is reduced when she recites the five words mantra.

    [2] See Edward Irons, Yiguandao, 2 December 2017, Yunfeng Lu and Graeme Lang, Impact of the State on the Evolution of a Sect, Sociology of Religion, Vol 67, No 3, 2006, p249; Yunfeng Lu, Chinese Traditional Sects In Modern Society: A Case Study of Yiguan Dao (paper submitted to Department of Applied Social Studies, City University of Hong Kong, in partial fulfillment of the requirements for the Degree of Doctor of Philosophy, January 2005 p48-49,

1. According to the country information sources consulted, YGD was banned in the 1950s and driven underground before attempting a resurgence following China’s Cultural Revolution which resulted in a campaign of arrests. YGD is a syncretic movement that contains aspects of Buddhism, Daoism, Confucianism, Christianity and Islam, and beliefs may vary among different communities. YGD was not included on official lists of banned cults (xie jiao) in China issued in 2000, 2005 or 2017. However, in April 2021, the US-based Dui Hua Foundation reported that there have been some isolated reports of YGD practitioners being charged with illegal activities, mostly for proselytization offences and noted that the sentences appear shorter than for other xie jiao groups. DFAT has noted that these instances appear localised, and the situation varies from place to place. Other sources have observed that public interactions between the Chinese government and YGD in Taiwan commenced during the mid-2000s and that some branches of YGD have returned and operate within China, with the tacit approval of the authorities, as long as they do not preach in public.[3]

   [3] See 'The Ongoing Crackdown on Yi Guan Dao', Dui Hua Foundation, 8 April 2021, See also; 'The Resurgence of Yi Guan Dao', Dui Hua Foundation, 31 December 2018, ‘The Persecution of Unorthodox Religious Groups in China', Dui Hua Foundation, 28 March 2022, p. 38; ’DFAT n1, above; Yiguandao: The Original Xie Jiao’, Bitter Winter, 8 November 2018, ; Ching-chih Lin, ‘Yiguandao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, Amsterdam University Press, 2017, p.243, ‘The List of the Xie Jiao, a Main Tool of Religious Persecution’, Bitter Winter, 6 November 2018,

2. I find the applicant’s knowledge and understanding of the YGD to be commensurate with her low level of involvement in YGD. I find that between 2017 and early 2020, the applicant only sporadically attended a YGD temple in Sydney. I find that since then she has not engaged in any YGD activities, including attending temples or participating in gatherings. I find that during this period the applicant’s practice of YGD has been confined to reciting the five words mantra in private to calm herself. I find that she has never been engaged in other YGD activities such as proselytizing and distributing material. I find if the applicant returned to China, she would continue to practise YGD at the same level she has been practising in Australia over the past few years. There was no persuasive evidence before me, and I do not accept, that the applicant’s periodic visits to the YGD temple in Sydney between 2017 and 2020 would bring her to the adverse attention of the Chinese authorities upon her return to China. I have already rejected the applicant’s claim that she was blacklisted, and her movements were monitored following her brief detention in September 2016.

3. For the above reasons, I find that there is no real chance that the applicant would face serious harm if she were to return to China and practice YGD at the same level she has been doing in Australia. I find that there is no real chance that she would come to the adverse attention of the Chinese authorities for the reason of her previous participation in YGD gatherings in China, her detention in 2016 and her visits to the YGD temple in Sydney between 2017 and 2020. I find that there is no real chance that the applicant would face persecution for the reason of her religion, imputed political opinion or any of the other reasons listed in s 5J(1)(a) of the Act. For the same reasons, I find that there is no real risk that the applicant would come to the adverse attention of the Chinese authorities if removed to China. I find that there is no real risk that she would face significant harm for reasons arising from her past association with YGD, her very limited activities in Australia or if she were to continue to practise YGD at the same level she has been practising in Australia over the past few years.

   Conclusions

4. On the basis of the evidence before me, I do not accept that there is a real chance that the applicant would be persecuted for the reason of her race, religion, nationality, political opinion, or membership of any particular social group if she were to return to China. I am not satisfied that the applicant has a well-founded fear of persecution. I am, therefore, not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

5. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am 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 she would 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. I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would 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 am I satisfied that there are substantial grounds for believing that there is a real risk that she would 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. I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer arbitrary deprivation of her life or the death penalty. Therefore, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. There is no evidence before me to suggest 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

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

   Shahyar Roushan
   Deputy President

   
   

   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.

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