1826325 (Refugee) - [2022] AATA 5054

1826325 (Refugee) [2022] AATA 5054 (9 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Belinda Christie (MARN: 1682855)
CASE NUMBER:  1826325
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Sheridan Lee
DATE:9 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.

Statement made on 09 November 2022 at 10:55am
CATCHWORDS
REFUGEE – Protection Visa – Ghana – sexuality – lesbian – gay female of Ashanti ethnicity – membership of the particular social group – third country protection not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 438, 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old female from Accra, Ghana. She self-identified as of Ashanti ethnicity and an atheist. She can speak, read and write in English and Twi. The applicant completed high school and holds a [qualification] from [a named university], Ghana. Prior to travelling to Australia, the applicant ran her own roadside stall in Accra.
According to the delegate’s decision record, the applicant applied to enter [Country 1] in 2013 on a different passport and was refused entry. This information was not disclosed by the applicant in her protection visa application. No evidence relating to the applicant’s prior travel or attempted travel to [Country 1] was on the Departmental file provided to the Tribunal. On 7 March 2022, the Tribunal requested that the Department provide all evidence that was relied on to make its decision. The Department’s response will be discussed further below.
The applicant was also refused entry to [Country 2] when she arrived in that country by airplane on [date] June 2016. She was returned to Ghana.
The applicant first entered Australia on [date] March 2018 as the holder of a [temporary visa], granted on 27 November 2017. The applicant was granted the visa on the basis that she was an [Occupation 1]. However, she attended as a [different occupation]. The visa expired on 15 May 2018.
The applicant applied for protection on 28 May 2018 on the basis that she would be persecuted in Ghana as a lesbian.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1826325 (Refugee)

Details

AGLC: 1826325 (Refugee) [2022] AATA 5054
Case: [2022] AATA 5054
Decision Date: 9 November 2022

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a lesbian woman from Ghana. The applicant claimed she could not return to Ghana due to persecution based on her sexuality, alleging she had been physically attacked, robbed, had her businesses destroyed, and had been mistreated by police. She also stated her family had disowned her and that she faced discrimination in employment. The Administrative Appeals Tribunal was required to determine whether Australia had protection obligations towards the applicant.

The central legal issues before the Tribunal were to assess the credibility of the applicant's claims and, based on accepted facts, determine if she met the criteria for a protection visa under the Migration Act 1958. This involved considering whether she had a well-founded fear of persecution for reasons of membership of a particular social group, specifically her sexual orientation, and whether effective protection measures were available to her in Ghana or any third country. The Tribunal also had to consider the provisions of section 36(3) of the Act, which pertains to the availability of third country protection.

The Tribunal found that the applicant's claims regarding her experiences in Ghana, particularly those related to her sexuality, were accepted and gave rise to Australia's protection obligations. It was satisfied that the applicant was a member of a particular social group (lesbian women) and had a well-founded fear of persecution, as her sexual orientation was an innate characteristic that she could not be expected to conceal. The Tribunal further considered whether third country protection was available, examining the ECOWAS region and concluding that due to widespread societal and official attitudes towards LGBTIQ+ individuals, such protection was unlikely to be effective. Consequently, the Tribunal determined that section 36(3) of the Migration Act 1958 did not apply.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958, meaning Australia has protection obligations towards her.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.CONSIDERATION OF Claims and evidenceApplication for protection The applicant applied for protection in Australia on 28 May 2018. The application for protection form outlined that the applicant cannot return to Ghana because she would be persecuted on the basis of her sexuality. The applicant self-identified as lesbian and claimed that it is illegal to be a lesbian in Ghana. The form stated that:·The applicant was physically and verbally attacked. She has a scar on the back of her head because of an injury incurred during one of the attacks.·She was robbed and her house was broken into.·The applicant attended an underground gay club. The police entered the club and assaulted the patrons. The applicant was bitten by the police during the assault.·Her mother disowned her and tried to make her marry a man.·The applicant went to the police about the attacks perpetrated by civilians and they did not provide any assistance.·On one occasion the applicant was arrested and taken to the police station. They eventually let her go.·Homosexuality is illegal across all of Ghana. On 17 June 2018, the applicant supplied the Department with a written statement. The statement included the following information:·During her first year of high school, the applicant was introduced to homosexuality by her lesbian ‘school mother’. This was when the applicant realised that she was a lesbian.·She didn’t tell anyone about her sexuality until 2008, when she was about [age] years of age. When she started telling people close to her, the information spread in the community even though she tried to be discreet. The applicant noted that she dressed ‘like a tomboy’.·The applicant’s mother was told of her sexuality and they no longer have a relationship. The applicant’s mother does not believe that the applicant is a lesbian and wants her to marry a man. She has been disowned by her mother and discriminated against by her family because of her sexuality. ·Nobody would employ the applicant because of her sexuality. She ran her own small businesses, which were destroyed by young people who targeted her. ·Vigilante groups whose aim is to eradicate homosexuality exist in Ghana and despite the crimes they commit they are never investigated or punished.·The police did not offer the applicant protection and she was arrested because of her sexuality. Despite her complaints, no action was taken by the police.·In 2016, the applicant was dating a white woman from [Country 2]. As a demonstration of love towards this woman, the applicant was forced to ‘come out’ as a lesbian. The applicant felt that while the [Country 2] woman was in Ghana, she was safe because local people did not attack her because of her association with white people. ·When her partner had to return to [Country 2], the applicant wanted to go with her as she was afraid of what would happen once she left Ghana. Her partner arranged the applicant’s travel and visa. When the applicant arrived in [Country 2] she was detained by the authorities as she did not have sufficient funds for her stay in [Country 2] and was sent back to Ghana. The applicant did not know that she could have applied for protection in [Country 2].·After she returned to Ghana in 2016, the applicant’s house was ransacked several times by local youth, who would break things and threaten her because of her sexuality. At the same time, her roadside business was being targeted by young local people who would threaten her, damage her stand and take her money. Even though the applicant reported these events, nothing was done and no police reports were issued.·One afternoon in 2017, while the applicant was home alone, a group of young people formed by six males and two females entered her house through the unlocked door and beat her with a wooden stick, resulting in a scar at the back of her head. They indicated that they were there because they knew the applicant was a lesbian and warned her to change her sexuality. On the same occasion the applicant was stripped naked, dragged around and raped, then dragged outside so everyone would see her and know she was a lesbian. The attack continued for two hours and nobody helped the applicant. The attackers told her other people would come back to do the same and the applicant was afraid she would be killed. The applicant obtained a police report related to this attack through a friend who visited the police station on her behalf. A copy was provided as supporting evidence.·After the attack, the applicant called a friend who took her to the pharmacy to get medication for her injuries. She did not go to the hospital because she believed she would not be cared for due to her sexuality. After this, she went to the police station to file a police report, however the attack was never investigated nor followed up. After the attack the applicant was too afraid to return to her house, where everything had been stolen or destroyed, so she started sleeping on friends’ couches and was living in constant fear of being attacked again.·The police did not protect the applicant after any of the incidents, and they were also the perpetrators.·In 2018, while the applicant was at an underground gay club, the police arrived to beat them and the applicant was caught and detained with other people from the club, although they were never charged. ·In 2016 the applicant met a white woman and they became friends, however they later lost contact. In 2018, the same woman returned to the applicant’s town and they reconnected. While they were out together one night, the applicant was harassed and threatened by some people who were aware of her sexual orientation. After realising that the applicant did not feel safe living in Ghana, the woman helped the applicant by applying for the applicant’s visa for her to travel to [Australia]. ·The applicant did not immediately apply for protection once in Australia because she wanted to fulfil her duty to [do specified work]. At first, she was not aware that she could apply for protection in Australia; she did not intend to become unlawful but she did not know what to do and she did not feel safe returning to Ghana.·The applicant does not feel safe in Ghana as a homosexual and she feels that only by hiding her sexuality she would avoid being attacked. She also claims that eventually her sexuality would be discovered no matter where she went.·She fears that if she returned to Ghana she would be targeted by the authorities on arrival for not returning after the [event], and her sexuality would make matters worse. Even if she was able to make it through the airport, she would have to live in fear of further assault, attack, robbery, rape or even murder because of her sexuality perpetrated by youth and people living around her, as well as the police and the government.·The applicant would struggle financially because she is unable to secure a regular job due to discrimination related to her sexuality. She would have to hide her sexuality to attend university.

Decision

Reasons for decision

In the circumstances, I do not consider that third country protection would be available to the applicant. I conclude that s.36(3) does not apply in the applicant’s case.decision The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.Sheridan LeeMemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).Migration history I had some concerns about the credibility of the applicant’s evidence in respect to how she arranged her travel to Australia and her prior attempts to enter [Country 1] and [Country 2]. Nevertheless, the attributes listed above have been accepted and give rise to Australia’s protection obligations. Further, I accept that the applicant’s actions were motivated by her desire to find safety outside Ghana.Third Country Protection According to s.36(3), Australia is taken not to have protection obligations in respect of a person who has not taken all possible steps to avail themself of a right to enter and reside in, whether temporarily or permanently and however that right arose and is expressed, any country apart from Australia. I have therefore considered whether the applicant could obtain third country protection from countries in Africa with close ties to Ghana. According to DFAT, the ECOWAS is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. The goals of ECOWAS suggest ease of travel, residence and trade between member countries – although various reports generally suggest there have been significant limitations imposed by member countries on multiple aspects of residence and travel rights. The DFAT Thematic Report on ECOWAS outlines that international observers report LGBTIQ+ issues are taboo across the ECOWAS region, both officially and societally. Activists have reported recent cases of attacks by civilians and police on individuals perceived to be LGBTIQ+ in Benin, Ghana and Mali, and prosecutions of individuals in Burkina Faso and Cote d’Ivoire seemingly motivated by their sexual orientation, despite the fact that neither country criminalises consensual same-sex sexual acts between adults. In the circumstances, I do not consider that third country protection would be available to the applicant. I conclude that s.36(3) does not apply in the applicant’s case.decision The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.Sheridan LeeMemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…