1816657 (Refugee)

[2024] AATA 2168

1816657 (Refugee) [2024] AATA 2168 (11 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816657

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jason Cabarrús

DATE:11 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 11 March 2024 at 10:57am

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – a drug addict – criminal activities and interactions with police – was never arrested or charged by police – economic circumstances in Malaysia  - economic difficulties the applicant would face are not targeted at the applicant for any reason – not satisfied the applicant has a real chance of suffering serious or significant harm – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 48, 424, 499

Migration Regulations 1994, 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 22 May 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 is a citizen of Malaysia, applied for the visa on 5 January 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee or complementary protection criteria in the Act.

3. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether they meet the complementary protection criterion. These criteria broadly require that a person face a real chance of serious harm for specified reasons, or a real risk of significant harm, in their home country. The relevant law is set out in the attachment at the end of this decision.

4. For the following reasons, I have concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

5. The applicant was born in Kedar state, Malaysia in [year]. He came to Australia in October 2017 and applied for the protection visa in January 2018. He gave the Department a copy of his passport and Malaysian identity card.

6. The delegate refused to grant the visa in May 2018 and the applicant applied to the Tribunal for a review of that decision in June 2018. He gave the Tribunal a copy of the first page of the delegate’s decision, and later completed a pre-hearing information form, in which he stated that he was afraid he wouldn’t be able to support his family in Malaysia because the economy there was very poor with low wages and debts to settle, especially now that his wife was pregnant with their second child.

7. The applicant appeared before the Tribunal on 30 January 2024 to give evidence and present arguments. At the end of the hearing, the applicant asked for two more weeks to provide further evidence in support of his application. On 15 February 2024, the applicant sent the Tribunal a number of documents, which appeared to be an academic article and a series of screen shots, apparently of media articles from Malaysian news sources. The documents were not in English, so the Tribunal asked the applicant to provide English translations. The applicant did not do so.

8. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.

   Findings and reasons on the applicant’s claims

9. At the start of the hearing I asked the applicant about whether he had filled in his own protection visa application form and whether he knew what was in it. He told me that a friend helped him apply for the visa and that they just wrote it and sent it in, but he did not know what they wrote. I asked the applicant if he was therefore happy for me to disregard the claims in his visa application form, and rely on the claims that he made to me at hearing, and he confirmed that he was. I have therefore not given any further consideration to the claims in his visa application form (which related to being homosexual).

10. In broad terms, the applicant claimed that he did not want to return to Malaysia because he had been a drug addict there and was concerned that if he returned, he would become addicted again and would be out on the streets unable to afford to live.

    The applicant’s circumstances in Malaysia and coming to Australia

11. This section summarises the applicant’s account to me of his circumstances in Malaysia and reasons for coming to Australia.

12. He was born on [Island 1] island, and his parents divorced when he was young. Over the next decade or so he moved with his younger brother and sister back and forth between living with his mother, his paternal grandmother, and his maternal grandmother, in Sabah, [Island 1], and Penang. His father was living with a new wife and did not keep in contact, and being moved between different relatives made the applicant feel that he and his siblings were unwanted and unsupported by their family.

13. At around [age] years of age, around 2013, he stopped school and started renting a flat with friends in [Island 1]. He applied to study [a] course at college, but was rejected from that and became frustrated. It was around this time that the applicant got involved with drugs, specifically methamphetamines.

14. He got a job in a [shop], but lost that after about six months due to his drug use. He survived for the next year or two by stealing and selling things, until he got another job through a friend’s father around the middle of 2015, working [at a workplace doing specified work]. This led to him meeting the owner of a [company], who gave him a job as a [occuption] around the middle of 2016. This work usually involved [deleted]. He also had the opportunity to go on a couple of short trips (for a day or so) to [overseas].

15. Working [at this workplace], he earned around MYR 1,200 each month. He was still addicted to drugs during this time, but no longer needed to steal because he was earning money. He was spending around MYR 800-900 on methamphetamines, and around MYR 200 on rent in his shared accommodation each month. His employer was not aware of his drug use.

16. He had interactions with the police during the years 2013 to 2017, due to his drug use and theft activities.

17. In 2017, he decided he wanted to change his life, learn new things, be free from the place he was in, and prove to himself that he could be a better person. He decided to come to Australia, because he’d heard about it on [social media], and it was reasonably close. He got a loan of around MYR 10,000 from a friend, applied for a tourist visa, and came to Australia on his own, arriving here in October 2017.

18. His first three months were a struggle because he had no drugs, but he managed to find work in the construction industry. Through doing that work was able to pay back the loan he took out to come here, and by 2018 he had a normal life. In 2019 he met his wife, who at that time was in Malaysia, through social media, and brought her to Australia. They got married around April 2020 and had their first child, a son, in [year]. Their second child is due very soon.

19. He rarely speaks with his mother, but keeps in touch with his sister and brother. His sister lives in Penang by herself, and works in a factory. His brother was previously working as a [occupation], but acquired a disability when he broke a bone in an accident, and has returned to live with his mother in Penang.

20. I generally accept this account of the applicant’s circumstances, because he generally gave it in a freely flowing and spontaneous manner during the hearing. However, I have some concerns about the applicant’s claims about criminal activities and interactions with the police, which I discuss further below.

    Claimed criminal activities and interactions with police

21. Although the applicant did not expressly claim to fear harm from the authorities in Malaysia arising from his previous claimed criminal conduct and interactions with police there, I considered I needed to explore these aspects of the applicant’s claims in some detail because, if accepted, they could give rise to risks of harm to the applicant if he returned to Malaysia.

22. The applicant told me that:

    a.he was caught stealing by the authorities more than five times around 2014 to 2015 and was also caught in possession of drugs; the only interactions he had with police were around theft and possession of drugs;

    b.he would steal [things] to [sell]; he would usually steal them from around houses;

    c.he was known to police to be a drug addict and he had encounters with the police every week or two, and on each occasion they would ask him for money and he would give them between around MYR 10 and MYR 50;

    d.he did not have a criminal record because on these occasions the police just asked for money and released him, because the police are corrupt and they knew they could track him down and get him again at any time, particularly because it was a small island and it wasn’t worth their while to arrest him or charge him or send him to rehabilitation.

23. When I asked him if he ever broke into a house, he responded that if you are desperate you’d go in, and it happened maybe just once but he wasn’t caught, and he thinks he would have gone to jail if he had done that. When I asked him about the times he was caught, he said that sometimes the owner of the stolen goods caught him, and sometimes he was caught carrying the stolen goods on a motorcycle at night.

24. I asked if he could recall a specific incident when he got caught. He told me that one night when he was desperate, he went to a house that was dark and tried to cut a steel pipe post there with a hand saw-blade. The owner’s son came and grabbed him and bashed him a bit, first with his fists and then with a tree branch or bamboo stick, then some more people came and he got tied down with ropes until the police came. He was hit everywhere, on his face and his body. The police said they were going to take him to the police station and they put him in the police car to make it seem real, but then they just drove him past the village and dropped him off, because they remembered him from previous interactions, and he didn’t have any money to give them on that occasion.

25. He told me he couldn’t remember any other incidents where he was caught stealing.

26. While I accept that there is corruption in the Malaysian police force, and that police might take bribes on occasions, country information also shows that the Malaysian police are generally a professional and effective police force and the authorities treat drug crime very seriously.[1] I put to the applicant that I was concerned that he could only recall one incident when he was caught stealing, despite claiming that it happened several times, and that I was finding it difficult to accept that the police did not arrest him or charge him even once, despite his claims that they stopped him as frequently as every week or two, found him in possession of drugs on many occasions, and caught him in the act of stealing things or possessing stolen goods on several occasions.

    [1] Local and international sources consider the Royal Malaysian Police to be a professional and effective police force; however, police are among the lowest paid members of the civil service and a 2005 Royal Commission identified widespread corruption; subsequent reforms and investigations have led to some improvement, but perceptions of corruption remain high; the death penalty applies to drug trafficking offences, and although the government is looking to reform laws around possession, sources also indicate that arrest numbers for drug addicts are high, as is the number of people in prison for possession and use of small quantities: see Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Malaysia’, 29 June 2021 at paras 4.9-4.10 and 5.5-5.7; Reuters, ‘Malaysia seeks to decriminalise possession, use of small amounts of drugs’, 15 May 2023 (available at The Diplomat, ‘Malaysia announces plans to decriminalise minor drug offences’, 17 May 2023 (available at  >

    He replied that if you just research on google, you won’t get this information, you have to live in Malaysia to know what he’s talking about; it’s hard for him to explain, he doesn’t have photos or anything; it’s not worth it for them to do the paperwork and sail him out from [Island 1] to send him to rehab; they know if they want money, they can just stay where they know he’ll be around, the island isn’t big and he can’t run anywhere; if a police officer who is a good person caught him, he’d get charged, they’d just bring him to the police station and wouldn’t accept money or ask for money, but the plainclothes and undercover police try to resolve it because they just want to make money.

27. I do not consider that the applicant has provided a reasonable explanation for never having been arrested despite his claimed frequent encounters with his police, and the country information indicating how crimes, particularly drug crimes, are dealt with in Malaysia. I do not accept the applicant’s assertions that he had so many encounters with the police, but every encounter was with corrupt officers who were only interested in taking bribes to make money for themselves, and not enforcing the law. I find that the applicant has exaggerated these claims.

28. The applicant was also only able to give an account of one instance of being caught thieving by police, despite claiming that it happened several times, and his account of that instance, which featured a number of witnesses including the victim’s son, ended with the police driving him away and dropping him off without them taking any formal action to reprimand him, or taking any money from him. I similarly do not accept that the applicant has reasonably explained why the police did not arrest him on this occasion, and released him without consequences after pretending to take him into custody – especially considering that there were witnesses to this crime who had summoned the police. I therefore do not accept that this event occurred. During the hearing, I also put to the applicant that I was concerned that he used general language in his account of this incident (e.g. talking about what will happen rather than what did happen), but on reflection and having re-listened to other parts of the applicant’s evidence at hearing, I consider that that concern could be attributable to English not being the applicant’s first language, so I have not made anything of that language.

29. For the reasons explained above, in light of the country information and the lack of a reasonable explanations from the applicant, I do not accept that the applicant had encounters with the police as frequently as he claimed, or that he was ever caught stealing by the police, because if he had been, then it is reasonable to expect that he would have been arrested and charged. I am prepared to accept that the applicant occasionally stole  [items] from other people’s property to sell for money, but I do not accept that he was ever caught by the victims of the theft or by the police as a result of these activities. I am also prepared to accept that on a very small number of occasions (once or twice), the applicant may have been caught by police in possession of a very small quantity of drugs for personal use, and that on these occasions, the applicant was able to avoid being arrested and charged by paying some money to the police.

30. I also put to the applicant that, even if the authorities may have recognised or been interested in him in the past due to interactions with him, given the passage of time and the fact that he no longer used drugs, I might find that he would no longer be of interest to them. He had nothing to say in response to this concern.

31. I accept the applicant’s evidence that he was never arrested or charged by police and has no criminal record in Malaysia. While I accept that the applicant might have been of some interest to some individual police officers in [Island 1] based on the limited interactions which I accept he had with them (in which they found him in possession of drugs and took money from him on one or two occasions as described above), I find that he would no longer be of interest to them on the basis of these past interactions or history as an addict, because he has now been outside Malaysia for over 6 years. For the reasons explained below, I also find that the applicant will not resume his drug use in the reasonably foreseeable future if he returns to Malaysia, and therefore I find that the police will not be interested in him as a drug user or addict if he returns there in the reasonably foreseeable future.

    Claims regarding future drug use and economic circumstances in Malaysia

32. The applicant’s main claims to me were his concerns that if he returned to Malaysia, he would become a drug addict again, and end up impoverished on the streets, as his family wouldn’t welcome him. He also made more general claims about the economic difficulties he would face in Malaysia, claiming that his family would financially struggle there, because the economy in Malaysia was in a bad way, and he could only earn around MYR 1,500 a month there, which only left around MYR 1-200 to live off after paying the rent and the bills. His pre-hearing information form also referred to having some debts, but when I questioned him, the only debt he told me about was the debt he incurred in coming to Australia, which he told me he had now paid off in full.

33. The applicant claimed that if he returned to Malaysia, he would resume using drugs. I asked the applicant to explain why he would do this, noting that he has managed to avoid taking drugs for over 6 years since he had been in Australia, and that he now had a wife and young child, with another child on the way very soon. He told me that:

    a.it takes a lifetime to get healed, and once you’ve been an addict, if your mates trigger you by offering you drugs again you’ll go back to it;

    b.he didn’t know anybody here who was using drugs; addicts here would run away from him and not offer him drugs because he’s not the same ethnicity as them;

    c.in Malaysia he wouldn’t be able to avoid drugs because people would come and offer them to him; there will always be one bad friend that you meet at work or somewhere else who will bring drugs to your home; this would apply wherever he went in Malaysia because the culture and people are more friendly than here, and they have too much free time and a longer and more vibrant nightlife;

    d.he was busy working hard here and so he was too tired after working long days to think about drugs, and he’s also been focusing on his family rather than socialising with friends (who might use drugs).

34. I told the applicant that I had not seen country information indicating drug use was so widespread in Malaysia as to make it unavoidable, particularly in comparison to the situation here in Australia, where I presume he could have obtained drugs if he wished to. He said that he would try to find some further independent information to support this claim, and as noted above, he subsequently provided some screen shots and an article, but these were not in English and I give them no evidentiary weight. I also asked the applicant why he would not fill his time in Malaysia with work and focusing on his family and avoiding drugs, as he had done here for several years. He replied that while it was possible to get work in the evenings, e.g. at a night market, the wages were very low because the farmers need to support themselves and their own families.

1. While I accept that there are differences between the culture and nightlife in Malaysia and Australia, I do not accept that the applicant’s demonstrated ability to overcome his addiction and avoid using drugs for the past 6 years is attributable to those differences. Instead, I find that it is attributable to the applicant’s own expressed desires to better his life, and more recently to support his family and give them a good life, as well as his increased maturity. I find that these factors would remain in place if he returns to Malaysia and would continue to motivate him to successfully avoid using drugs, even if they are offered to him there. I therefore do not accept that the applicant would resume using drugs if he returned to Malaysia in the reasonably foreseeable future.

2. In terms of the general economic difficulties that the applicant would face in Malaysia, I accept that there are poorer employment prospects and lower incomes in Malaysia than in Australia, as the applicant suggested in his claims to me. I also accept that the applicant will have little or no support from his family in Malaysia if he returns there and that he and his wife will have to support and care for their own young family. However, apart from his future claimed drug use, which I do not accept for the reasons explained above, the applicant did not provide any reason why he could not obtain employment in Malaysia that would enable him to support his family and make a living there.

3. I put to the applicant the economic difficulties he referred to appeared to be in the nature of general country conditions affecting the population more broadly in Malaysia, and might not meet the tests or definitions for serious harm or significant harm, and might lack an element of targeting as required under the definition of refugee. I asked him if he had anything to say in response to this concern and he said he did not.

4. I find that the economic difficulties the applicant will face in the reasonably foreseeable future are not so serious as to amount to serious harm for the purposes of s 5J(4)(b). I also find these are general difficulties affecting many people in Malaysia, and are not targeted at the applicant for any reason, and therefore they do not involve systematic and discriminatory conduct for the purposes of s 5J(4)(c). Therefore they are not persecution for the purposes of s 5J. I also find that these kinds of difficulties do not fall under the types of significant harm referred to in s 36(2A).

   Summary of findings and conclusions

5. I have found that the applicant:

   a.used drugs (methamphetamine) and became addicted to them during the years 2013-2017 while living in [Island 1], before coming to Australia;

   b.engaged in some theft of [items] to sell to obtain money;

   c.was caught in possession of drugs once or twice by the police, who did not arrest him or charge him but rather released him because he paid them money;

   d.was not otherwise caught by the police committing any criminal acts;

   e.was never arrested or charged by police and does not have any criminal record in Malaysia;

   f.may have been of interest to individual police officers to whom he had paid money after they found him in possession of drugs, but given the passage of time, he would no longer be of interest to them;

   g.will not resume taking drugs or become addicted again to drugs in the reasonably foreseeable future;

   h.will not be of interest to the police or other authorities in Malaysia in the reasonably foreseeable future;

   i.will face more difficult economic circumstances in Malaysia than in Australia, and will have to support his own young family with little or no help from other family members in Malaysia, but that these difficulties are not sufficiently serious to amount to serious harm or fall within any of the categories of significant harm.

6. In light of these findings, I find that there is no real chance that the applicant will face serious harm or significant harm if he returns to Malaysia in the reasonably foreseeable future. I have also found that the economic difficulties the applicant would face are not targeted at the applicant for any reason and do not involve systematic and discriminatory conduct for the purposes of s 5J(4)(c), and so they are not persecution for the purposes of s 5J.

7. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

   DECISION

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

   Jason Cabarrús
   Member

   
   

   ATTACHMENT

   Criteria for a protection visa

   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.

   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.

   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).

   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 below.

   If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

   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 below.

   Extracts 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

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   (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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