1811445 (Refugee)

[2024] AATA 1561

1811445 (Refugee) [2024] AATA 1561 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811445

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Carolyn Wilson

DATE:13 February 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 13 February 2024 at 2:50pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Christian – pressured to convert to Islam – fear of people associated with ex-wife – consent to religious conversion for a child – 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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 April 2018 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 Malaysia, applied for the visa on 19 January 2018. The delegate refused to grant the visa on the basis they were not satisfied the applicant faced a real chance or real risk of harm for reason of religious conversion.

3. The applicant appeared before the Tribunal on 30 November 2023 and 12 January 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The applicant claims to be from Sabah, Malaysia, and provided a copy of his passport to the Department in support of this. Based on this evidence I accept he is a Malaysian citizen and find Malaysia is his receiving country.

11. The applicant came to Australia in October 2017. His wife and infant son came later, in 2018, and another son was born in Australia in [year]. In his protection visa application lodged in January 2018 the applicant described his marital status as separated but now says he and his wife reconciled after she came to Australia.

12. In his protection visa application the applicant claimed he was a Christian who led youths to protest against forced conversions to Islam. This caused Muslim extremists to be angry with him because he would not change from Christian to Muslim and he would not let his friends convert either. Muslim clerics issued a fatwa against him. His friends were physically assaulted and asked where he was. If he returns to Malaysia he will be forced to convert to Islam and the authorities will not protect him because Muslim clerics are powerful in Malaysia.

13. At the hearing on 30 November 2023 I asked him to provide information on his background in Malaysia as he had not provided any address, family, education, or work history in his protection visa application. The applicant said there were lots of things in the form he didn’t understand and that is why he didn’t answer all the questions. He completed the application form with the help of a friend, whose full name he can no longer recall. He said he grew up in a town in Sabah, and went to school there through to year 11. Initially he worked on a farm with his grandfather, but at the age of 18 moved to Kota Kinabalu where he lived and worked until coming to Australia. He had a number of jobs but primarily worked in a hotel and a factory. He has [number] brothers and [number] sisters. His parents and siblings still live in the town where he grew up.

14. At the first hearing the applicant said he was Christian but does not attend church in Australia due to the services being held in English. He claims to have regularly attended church in Malaysia, going to a number of different churches around or near Kota Kinabalu. All of the churches he attended were of the [specified] denomination. He said he did not have any problem in Malaysia attending church or being Christian.

15. When asked about his claims to have been pressured to convert to Islam the applicant said that from 2016 his friends were the ones pressuring him to convert. Most of his friends were Muslim and they were telling him Malaysia is a Muslim country so you should become Muslim. In addition there were groups of men going to villages forcing people to fill in forms that tricked them into converting. He said groups of men were coming to his house and workplace, calling his friends to find out where he was, and constantly pressuring him to convert. When asked why they would single him out in this way he said in fact it was people associated with his first wife who were behind this. He said he married in 2001 and had a child with her before they separated in 2004. His first wife then converted to Islam to marry a Muslim man. In order for the daughter also to convert to Islam they were targeting him to convert. He said they were constantly looking for him to force him to convert or harm him.

16. At the first hearing I raised with the applicant that his claims of widespread activity to forcibly or deceptively convert Christians in Sabah to Islam did not seem to be reported on in country information. The applicant said he had evidence that Christians in Sabah, including himself and people he knew, were being forced to convert and he could provide this if he had more time. To enable him to present his evidence the hearing was adjourned for at least 4 weeks.

17. Prior to the second hearing the applicant provided a written statement dated 15 December 2023 describing the claims regarding his first wife, and country information on Islam in Malaysia. He also provided: an unsigned statutory declaration from himself in which he claimed to have converted to Islam; a copy of a police report and statement dated 6 January 2014 from a villager in Sabah who claims they were forcibly converted to Islam; and a letter from his friend [Mr A] who said the applicant fought with him against forced conversions in Sabah.

18. The applicant claims to have been involved in leading protests in Sabah to warn people about Islamic activists who were tricking people into converting to Islam. His oral evidence about how, where and when he led protests was lacking in detail. He relies on the letter from his friend [Mr A] who says he is a ‘freelance fighter for the Christian religious activists in Sabah…[and the applicant] fought with me since 2014’.  [Mr A] says they would enter rural areas in Sabah to help people who had unknowingly filled out forms distributed by Islamic groups that deceived them into converting. [Mr A] says the applicant had to seek refuge in Australia because the Islamic groups were threatening to report [Mr A] and the applicant and wanted to convert them too. At the hearing the applicant said he’s known [Mr A] since 2014, after meeting through business. He says they fought together from 2014 to 2016 against the forced conversions. [Mr A] also came to Australia, but he thinks it was just for a visit and [Mr A] returned to Malaysia. He confirmed [Mr A] is still a Christian and hasn’t been forcibly converted to Islam. He said [Mr A] was the person who helped him put his written submission together. 

19. At the hearing I raised with the applicant that although he said he had evidence to support his claim that he and people he knew were targeted for conversion in Sabah, what he had provided was evidence of one incident in a village in Sabah from 2014. The information showed the people in that village had complained to the police to get help from the authorities, and there was nothing to suggest they would be denied help or that they suffered adversely for speaking out. He had not provided information of more recent incidents, nor, apart from [Mr A]’s letter, evidence of what he claimed had happened to him or his friends. There was no information to suggest [Mr A] had suffered harm. There was also no independent evidence that [Mr A] was what he said he was. I asked if [Mr A] had any presence on the internet, or if there were any news reports about him or other such Christian activists fighting against Islamic activists in Sabah. He said he and [Mr A] have all that evidence, he just had not had enough time to gather it and send it through, but he could provide it if he had more time. Although there had been a 6 week period between the first and second hearings, I granted him 2 more weeks to provide any further evidence.

20. The applicant maintained at the second hearing that he fears people associated with his ex-wife. He said she wants revenge on him and even though she lives on Peninsular Malaysia, she returns to Sabah to visit family. When asked why she wants revenge when their relationship ended 20 years ago, he said it was because he did not agree to their daughter converting from Christian to Muslim. He also claimed to have been summoned by the syariah court to attend matters relating to his divorce and his child’s potential conversion to Islam but he ignored this and never attended. The applicant says he has not seen his daughter since 2004 although he has heard how she is through an uncle who knows the family. He says his uncle told him the daughter is still Christian.

21. At the second hearing I asked the applicant to clarify whether he had converted to Islam. In his written claims he said he left Malaysia because he feared being forced to convert. In a support letter he provided from a Pastor dated [in] August 2023 it was stated the applicant had converted to Islam before he left Malaysia. At the first hearing the applicant said he never converted to Islam, only that he was under pressure to do so. Then prior to the second hearing he provided an unsigned statutory declaration in which he stated: he had been forced to convert to Islam against his will; he was not allowed to renounce Islam and would not be allowed to practice Christianity; he had been forced to convert because he had publicly confronted and questioned the Islamic movement in Sabah; and once a person has converted to Islam there is no way out. When I put the contents of his statutory declaration, to him for comment he agreed they were no true and confirmed he had never converted to Islam. He could not explain why the declaration said those things, but said his friend [Mr A] wrote it for him. As the declaration is unsigned and the applicant confirmed at the second hearing that he never converted to Islam, I give the contents of the statutory declaration no weight. I am however concerned by the provision of this contradictory evidence about whether he converted to Islam. As discussed with the applicant at the hearing, I consider it affects his credibility in relation to his claims. I consider the provision of the declaration containing false information demonstrates a willingness to embellish his claims.

22. Following the second hearing the applicant provided copies of his marriage certificate for his first marriage, his daughter’s birth certificate, a letter dated [in] January 2017 confirming his first wife had converted to Islam, and some articles and social media. The certificates show he married his first wife in 2003 and their child was born in [year]. The letter dated [in] January 2017 is not the original, but a translated copy. The original has not been provided. He has not explained why he asked for evidence in 2017 of his ex-wife’s religion, but the letter purportedly from the Department of Islamic Affairs Sabah states that she converted [in] October 2011 and her conversion was registered with the Department.

23. Based on the certificates provided I accept the applicant was married prior to his current marriage, had a child, and that his ex-wife converted to Islam. I accept it was likely for the reason that he claimed, that is, she was marrying a Muslim man.

24. Malaysia is one of the few Muslim nations that regulate conversions to Islam through legal provisions.[1] In Malaysia if one party is Muslim then both must be Muslim for the marriage to be legal under syariah law. DFAT reports it is relatively common in Malaysia for individuals to convert to Islam to marry a Muslim partner.[2] A person may convert to Islam is they are of sound mind and have attained the age of 18, or in the case of minors, if their parent consents. The conversion is recorded in the ‘Register of Muallafs’ and they may obtain a Certificate of Conversion.[3] As raised with the applicant, prior to 2018 the consent of only one parent was required to convert a child to Islam, allowing the Muslim parent to gain sole custody through the syariah court. It was only in 2018 that Malaysia’s highest court declared in a landmark decision that consent of both parents was required to issue a certificate of religious conversion for a child.[4] The applicant said that in Sabah it was done differently, that the consent of both parents was required, but he has not provided any country information to support this, and neither does the country information before me suggest there was such a practice in Sabah at the relevant time. I note a fatwa issued by the Islamic Religious Affairs Malaysia was adopted by Sabah in 2009, which decided that when one parent converts to Islam, the underage child’s religion is also Islam.[5] Non-Muslims are not entitled to appear in the syariah court, leading to cases where syariah court rulings have negatively affected non-Muslims who have no standing to defend their position or appeal the decision, including in matters of divorce, custody and conversion.[6] Having regard to this information, if his ex-wife and her new husband wanted the applicant’s daughter to convert to Islam they could have done so without his permission or involvement, and further she would be assumed to be Muslim once the ex-wife converted. I do not accept his ex-wife asked the syariah court to summon him of any such matters, noting he would have no standing to appear, defend or appeal any decision. I do not accept any person or group associated with his ex-wife was pursuing him to force him to convert so that his child could convert, as such conversion on his part was not necessary. Noting also that she was an infant when he last saw the child, the applicant would have no influence on any decision the child might make about converting, if her mother involved the child in such a decision. His daughter is now an adult and has had no relationship at all with her father. Even if there was any interest and threatening behaviour on the ex-wife’s part to want him to convert to Islam, which I consider unlikely and for which there is no supporting evidence, there is no evidence the applicant came to any harm prior to leaving Malaysia. Their relationship ended in 2004, 20 years ago, and she converted in 2011 to marry a Muslim. The ex-wife and their child did not live in Sabah, but lived in Peninsular Malaysia. I consider it farfetched she or anyone associated with her would have any ongoing interest in the applicant’s religion or any reason to harm him for not wanting to convert to Islam. I do not accept the applicant was pursued by a group of men associated with his ex-wife to pressure him to convert. I find the applicant does not face a real chance of harm from his ex-wife or anyone associated with her because he is a Christian refusing to convert to Islam or because he does not consent to his child’s conversion or for any other reason.

    [1] Khan and Samuri, ‘Unilateral conversion of minors to Islam: Legal discourse and Muslim converts’ narrative on custody and religious rights in Malaysia’, Kajian Malaysia: Journal of Malaysian Studies, 2021.

    [2] DFAT, Country Information Report Malaysia, 29 June 2021.

    [3] Section 95 of the Administration of Islamic Law (Federal Territories) Act 1993.

    [4] DFAT, Country Information Report Malaysia, 29 June 2021.

    [5] Khan and Samuri, ‘Unilateral conversion of minors to Islam: Legal discourse and Muslim converts’ narrative on custody and religious rights in Malaysia’, Kajian Malaysia: Journal of Malaysian Studies, 2021.

    [6] USDOS, International Religious Freedom Report Malaysia for 2022.

25. The applicant claimed he and his friends were targeted by Muslim groups wanting to force them to convert to Islam, but also to harm them for warning other people not to convert. He claimed to have evidence of this, but the evidence he provided was more generic than personal to his situation. These news and social media articles are not about him, nor do they appear to be about [Mr A] or anyone else known to him. The report he relies on regarding an incident of forced conversion in a village Sabah dates from January 2014 and he was not personally involved in that incident. None of the reports provided contain evidence that [Mr A] or the applicant are or were involved in protests or fighting against Muslim activities. He has not provided any independent evidence to support [Mr A]’s claim to be a ‘freelance fighter for the Christian religious activists in Sabah’ or to show that such activism exists. The only other evidence he provided of his alleged activities was a letter from a Pastor who said the applicant got into trouble for questioning the activities of the Muslim authorities. That same Pastor also said the applicant had converted to Islam, so I give this letter little weight. In any event when I asked the applicant what was meant by getting into trouble with the Muslim authorities he said the ‘trouble’ was them wanting him to convert. Other country information he provided contained reporting on the difficulties for Muslim Malays to renounce Islam. Whilst I accept it is difficult for Muslims in Malaysia to renounce their faith and convert to another one,[7] that is not the applicant’s situation. He has not converted to Islam, nor does he intend to.

    [7] DFAT, Country Information Report Malaysia, 29 June 2021.

1. Reports from the Department of Foreign Affairs and Trade (DFAT) and the United States Department of State (USDOS) refer to some incidents of forced or deceptive conversions of people to Islam, particularly amongst indigenous populations. DFAT reported on forced conversions of the indigenous people the Orang Asli who live in Peninsular Malaysia. There are reports many Orang Asli were paid to convert in the 1990s or risked losing native land rights, and later that many Orang Asli had the religion Islam recorded on their MyKad identity cards even when they were not Muslims. DFAT also reported that sources claimed religious and political NGOs financed by the National Department of Islamic Development paid staff to recruit people to convert to Islam in Sabah. Poor communities were targeted for conversion because they could be incentivised with monetary payments and the potential for welfare available to Muslims.[8] In 2022 the USDOS reported there was an issue for some non-Muslims mistakenly registered as Muslim for their MyKad, however a Christian organisation was providing resources to help such people change the incorrect religion on their MyKad. The applicant provided an article from 2017 raising a problem for people in Malaysia with the words ‘Bin’ or ‘Binti’ in their names as being mistakenly recorded as Muslims in their MyKad, but the article also refers to efforts to correct this.

   [8] DFAT, Country Information Report Malaysia, 29 June 2021.

2. There are not reports of widespread forced conversion of Christians to Muslims in Sabah in the USDOS International Religious Freedom Report for 2022, and no mention of it at all in the United States Commission on International Religious Freedom Annual Report for 2023, indicating it is not a common issue in Sabah. There is no reporting before me that Christians who have warned others about forced or deceptive conversion practices have been targeted for harm. There are no reports of harm to the villagers in Sabah who were tricked into converting in 2014, even though they spoke out publicly and made a police report. The applicant is aware of tactics that have been used on unsuspecting villagers, such as offering monetary payments or other benefits, so I do not accept he would be converted in such a manner. There is no evidence members of his family or people known to him have been forcibly converted. Even if the applicant was involved in his church in warning others of tactics used to try to convert people to Islam by deception or through incentives, no actual harm came to the applicant in Malaysia. There is no evidence his friend [Mr A] has been forcibly converted or suffered harm for resisting attempts or warning others. I do not accept his claim that people were constantly coming to his home and workplace and urging him to convert or face harm. I am not satisfied  anyone would have this level of interest in him, even taking into account the claims regarding the ex-wife. I consider the claim that he was targeted to force him to convert to Islam is an embellishment. I consider the chance that anyone would target him in the reasonably foreseeable future to force him to convert to Islam, or harm him for not doing so, is too remote to a real chance. 

3. The applicant said at the first hearing he had no problems practising Christianity in Sabah, and this is consistent with country information. Christians are a minority in Malaysia, around 10 per cent of the population, but they live predominantly in the applicant’s home area of Sabah and in Sarawak.[9] It was stated in the applicant’s written submissions dated 15 December 2023 that there is widespread Islamisation in Malaysia, referring in particular to forced or deceptive conversions to Islam. He also refers to the difficulties for Muslims renouncing their religion or facing claims of apostacy, but this is not relevant to the applicant. For reasons given above, I consider it farfetched that the applicant would find himself forcibly or deceptively converted to Islam. There are reports of Christian pastors facing harm for proselytising to Muslims[10], but there is nothing to suggest the applicant has or would engage in such activity. Even though Malaysia is a predominantly Muslim country DFAT reports that Christians in Malaysia generally live free from societal discrimination and are free to worship without significant official interference.[11] I consider the applicant could practice his Christian religion on return to Malaysia as he did previously. I do not accept he would be prevented from doing so, nor harmed for being Christian. I do not accept the applicant faces a real chance of harm as a Christian in Sabah, Malaysia.

   [9] DFAT, Country Information Report Malaysia, 29 June 2021.

   [10] DFAT, Country Information Report Malaysia, 29 June 2021.

   [11] DFAT, Country Information Report Malaysia, 29 June 2021.

4. For these reasons I find the applicant does not face a real chance of harm for any of the reasons claimed.  I find he does not have a well-founded fear of persecution and does not meet the requirements of the definition of refugee in s.5H.

5. I have found the applicant does not face a real chance of harm for reason of his Christian religion, from people associated with his ex-wife, or any groups seeking to convert Christians to Muslims. ‘Real chance’ and ‘real risk’ has been found to equate to the same threshold.  For the same reasons given above I am not satisfied there is a real risk of significant harm for reason of his religion or claimed fears of forced conversion.

6. I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.

7. At the hearing on 30 November 2023 the applicant said his wife and sons had been granted protection visas, on different grounds to those claimed by him. He said his wife travelled to Australia with another woman and they had claimed to be in a same-sex relationship and to fear harm in Malaysia for that reason. However after coming to Australia he and his wife reconciled and had a second child together. I invited the applicant to provide evidence of the visa grant to his wife and sons. Following the hearing he provided evidence that they had applied for protection visas on 6 November 2018 and were granted bridging visas on 14 June 2019. I raised with the applicant at the second hearing that the information he provided showed only that his wife and sons had applied for protection visas, not that they’d been granted them. He maintained the claim that they had been granted protection visas and I again invited him to provide evidence of this. Following the second hearing the applicant provided a copy of a decision record dated 4 November 2022 in which a delegate of the Minister for Home Affairs refused the protection visa applications for the applicant’s wife and two sons. The evidence before me indicates his wife and sons’ applications for protection visas were refused. There is no evidence before me that he is the member of the same family unit as a person who has a protection visa.

   CONCLUSION

8. 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).

9. 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).

10. 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

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

    Carolyn Wilson
    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.

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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.

    …