1833791 (Refugee)

[2024] AATA 3449

1833791 (Refugee) [2024] AATA 3449 (9 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1833791 and 1906713

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Samira Kamandi

DATE:9 July 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants protection visas.

Statement made on 09 July 2024 at 12:44pm

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – economic instability – to obtain bridging visas with work rights – they were not involved in any political activities – inability to secure jobs – economic problems – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 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. The applicants are husband (applicant husband) and wife (applicant wife).

2. The applicant husband was born in [year], in Terengganu in Malaysia.  The applicant wife was born in [year] in Perak, Malaysia. They are Malaysian citizens of Malay ethnicity and Muslim religion.

3. The applicant husband arrived in Australia on [date] April 2018 and his wife arrived on [date] July 2018. They travelled to Australia on UD-601 Electronic Travel Authority (ETA) visas.

4. They lodged separate protection visa applications. The applicant husband lodged his protection visa application on 6 July 2018 and the applicant wife lodged her protection visa application on 14 September 2018. Their protection visa applications were refused by delegates of the Minister for Home Affairs under s 65 of the Migration Act 1958 (Cth) (the Act).

5. They lodged applications for review of the delegates’ decisions on 17 November 2018 (applicant husband) and 21 March 2019 (applicant wife). This is a review of those decisions by the Administrative Appeals Tribunal (the Tribunal).

6. The applicants met in Australia and were married on [date] October 2018. They have a child born in Australia on [date], after their protection visa applications were lodged and refused by the delegate. Their child is not a review applicant before the Tribunal. 

   CLAIMS AND EVIDENCE

   Protection visa applications

7. The information in the applicants’ protection visas indicates that they departed Malaysia because of ‘a hopeless government’, ‘dirty and unfair political’, and ‘economic collapse, corruption scandal every day’. The information also refers to a drop in education levels, unemployment, racism, religious problems, and the government not taking any action or responsibility. Their applications do not refer to any incidents of having been harmed, discriminated against, nor any issues that they faced due to the economy or political climate in Malaysia. They refer to ‘harm in dignity because of education level; drop’ and being worried about the horrible security situation.   

8. In response to the question of what they think will happen to them if returned to Malaysia, the applicants state that ‘nothing will happen’ but they feel ‘gloomy’ and that it will be a waste of their lives. If returned, they will be wasting their time. They claim that nobody can help them and that they had no option but to leave the country to find a better life and to survive.

9. Information before the Tribunal indicates that the applicants were not interviewed by the delegate and that their protection visas were refused on 16 November 2018 (applicant husband) and 16 March 2019 (applicant wife).    

   Review applications

10. They lodged applications for review of the delegates’ decisions on 17 November 2018 (applicant husband) and 21 March 2019 (applicant wife).

11. The applicants did not include any further information or details about their claims with their review applications.

12. The applicant husband was contacted by the Tribunal on 5 April 2024, advising him that his file was being prepared to be given to a Tribunal Member and requesting that he complete a pre-hearing information form. The applicant husband did not respond.

13. On 23 April 2024, the applicant husband was invited to a hearing before the Tribunal on 21 May 2024. On 30 April 2024, the applicant husband responded to the hearing invitation indicating that he will be attending the hearing. This hearing was postponed as the applicant wife’s review application was constituted to the same Tribunal Member.

14. On 7 May 2024, the applicants were invited to a hearing to be held on 14 June 2024. They were advised that, subject to their consent, because of their relationship and interrelated nature of their claims the Tribunal was proposing for the applicants to appear before the Tribunal at the same time at a joint hearing.  They were provided information about joint hearings before the Tribunal. The Tribunal also requested that they provide the Tribunal with any further submissions they wished to be considered in determining their review applications.

15. The applicants responded to the hearing invitation indicating that they would be attending the hearing and provided their consent to a joint hearing in writing. They also indicated that they would be providing character references to the Tribunal and requested for their friends to give oral evidence at the hearing.

16. Prior to the hearing, the applicants provided the Tribunal with the following documents referred to as character references in support of their review applications:

    ·A letter from the applicant husband’s employer dated 1 May 2024. The letter confirms that the applicant husband has been employed at [a workplace] since 22 September 2021 and that he is a competent, diligent, polite, and hardworking employee who is liked by guests and staff.

    ·Letters from the applicant wife’s employers at [Company 1], dated 2 June 2024. The letters refer to the applicant wife’s professionalism, work history with the employers, and hardworking character. The letters support the wife’s professional endeavours in the [sector] and refer to the applicants’ daughter as the commitment that the applicants have shown to be caring for their daughter and balancing their responsibilities. 

    ·A letter from [Mr A] dated 25 May 2024. [Mr A] indicates that he is a citizen of Malaysia and has known the applicant husband for about 3 years. [Mr A] refers to his reasons for departing Malaysia in 2021, which included economic instability, limited opportunities, cost of living, and his family’s wellbeing. [Mr A] attests to the applicant husband’s good character and that he would positively contribute to the Australian community. 

    ·A letter from [Mr B] dated 29 May 2024. [Mr B] writes that he has known the applicants since 2020 and that the applicant husband shared the difficulties he faced in Malaysia due to the country’s economic collapse, that he tried everything to provide for his family. [Mr B] attests to the applicants’ good character, that they are hardworking and have worked for the past 4 years, that the applicant wife completed a [qualification], and that they would be an asset in any community and professional setting.

    ·A letter from [Ms C] dated 20 May 2024. [Ms C] indicates that she had known the applicants personally and professionally and attests to their good character.

    ·A letter from [Ms D] dated 7 June 2024. [Ms D] indicates that she has known and worked with the applicant wife and attests to her good character and that it would be heartbreaking for the applicants and their daughter to leave Australia after calling the country home for 6 years.

    ·A letter of confirmation of the applicant wife’s enrolment in [a course] due to be completed in July 2024.    

17. The hearing was held in person at the Tribunal’s Perth Registry. The applicants were not represented. At the commencement of the hearing the applicants confirmed that they consented to the joint hearing. It was explained to them that although they would be giving their evidence separately, their evidence would be considered in both review applications and that there would be one recording of the hearing that they both could request a copy of from the Tribunal. The applicants indicated that they understood the process and had no issues with proceeding with a joint hearing.

18. The hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicants and the interpreter confirmed that they understood each other. No issues about the interpretation services provided were raised. I am satisfied that the applicants were able to participate at the hearing and were given a meaningful opportunity to engage in the process. Where relevant, the applicants’ evidence given at the hearing is discussed below.

19. At the hearing, [Mr B], also appeared to give oral evidence in support of the applicants’ review applications before the Tribunal. [Mr B] confirmed the information in his statement referred to above and indicated that he had nothing further to add. I note that the applicant wife, in her response to the hearing invitation, requested for [Ms C] to appear before the Tribunal to give oral evidence. However, at the hearing while the applicants confirmed that [Mr B] was present and willing to give evidence, they did not indicate that they wished for [Ms C] to give evidence or that she was at the Tribunal. After the hearing, the Tribunal contacted the applicants in this regard and noted that while the Tribunal was provided with [Ms C]’s statement, she did not appear before the Tribunal and sought clarification as to whether the applicants intended for [Ms C] to appear before the Tribunal and whether she had anything further to add that was not included in her statement. The applicants confirmed that there was no need for [Ms C] to appear and that her statement was sufficient for the Tribunal to consider in assessing their review applications.

20. At the commencement of the first hearing, I explained the purpose of the hearing and the criteria for the grant of a protection visa. I also explained that I was not bound by the findings of the delegates and that I would be assessing the evidence and information before me, including the applicants’ evidence given at the hearing, in determining their review applications. I indicated that all aspects of the applicants’ claims were an issue before me and that they should not assume that anything that was accepted by the delegate would also be accepted by me. I further expressed that I would be discussing any concerns or issues that I may have with their claims or evidence with the applicants to allow them to understand the issues and provide their responses and any further information that they wished for me to take into consideration. The applicants expressed their understanding of these matters and indicated that they had no questions in this regard.

    CRITERIA FOR A PROTECTION VISA

21. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

22. 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.

23. 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).

24. 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.

25. 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

26. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The issues in these reviews are whether there is a real chance that the applicants will suffer serious harm if returned to Malaysia for reasons of their race, religion, nationality, membership of a particular social group or political opinion. Alternatively, whether there are 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 applicants will suffer significant harm.

28. For the reasons set out below, I have concluded that the decisions under review should be affirmed.

    Country of reference

29. The applicants have consistently claimed to be citizens of Malaysia and provided certified copies of the biodata pages of their Malaysian passports with their protection visa applications. I accept that the applicants are nationals of Malaysia, and that Malaysia is the receiving country for the purposes of this assessment.

    Analysis, findings and reasons

    Relevant background information

30. At the hearing, the applicant husband confirmed that he completed high school in 2007 and studied [a major] from 2008 which he completed in 2012. He stated after completion of his studies he worked [at] [a] company for 2 years, after which he worked as a [occupation] from 2016 until his departure for Australia in April 2018. He expressed that although he applied for jobs with [specified] companies, he was unsuccessful because the roles he applied for required him to speak Mandarin. When asked if he had applied for any roles outside of his home area in Terengganu, while the applicant said that he had and been unsuccessful, he was unable to provide details of how many jobs he had applied for while in Malaysia.

31. Regarding his family, the applicant husband indicated that his parents were working and owned their own home in Terengganu where they resided. All his siblings completed high school and that while his younger sister is not working and is living with their parents, his other siblings had jobs. He confirmed that he is not financially responsible for his parents or siblings and that he sends some money to his parents on Eid occasions.

32. The applicant wife also confirmed that she completed high school in Malaysia. She then enrolled in a [course] and went on to complete a [qualification] in 2012. The applicant wife stated that as she was unable to get a job in the field of her study, because there were many graduates and she only had a diploma not a degree, [she] obtained roles at a [store] and at [a workplace] where her parents worked.

33. Regarding her family, the applicant wife said that her parents have retired from working at the [workplace] and that they own their home in Perak, where they remain living.  She gave evidence that her siblings are married and have jobs. The applicant wife also confirmed that while she and her siblings assist their parents financially, she is not financially responsible for her parents and only sent money to her mother occasionally when asked.

34. The applicants gave consistent evidence that they did know each other in Malaysia and that they met while working at [Workplace 1] in Perth. They met in September 2018 and decided to marry in October 2018 because they did not want to have relations outside of marriage which would be in contravention of their religious beliefs. After their marriage in Australia, the applicants resided together and their daughter was born in [year].

35. The applicants confirmed that their families in Malaysia are aware of their marriage and that they have a daughter. They communicate with their families who are happy for them.

36. The applicants have been working in various roles in Australia. The applicant husband has worked at [various workplaces], and is currently working as a [occupation]. The applicant wife has also worked at the [Workplace 1], at a [workplace], and in [a field] prior to the commencement of her job at [Company 1] as a [occupation] which she commenced in 2020. She is also studying to complete a [course].

37. I accept the applicants’ evidence as set out above.          

    Protection visa applications

38. At the hearing, the applicants stated that they used an agent who worked for the [Workplace 1] to assist them in lodging their protection visa applications. They stated that they were advised that after lodging a protection visa application they will get a bridging visa which will allow them to work legally in Australia. The applicants stated that they paid the agent AUD200 each and that they told the agent that they wanted to stay in Australia to work. The applicant wife also said that she came to Australia because her cousin was working in Australia and her mother told her to also give it a go.

39. Regarding the information about their reasons for seeking protection in Australia, the applicants said that they did not read what was included in the applications and that they signed the applications so that they are able to work in Australia.

40. I accept that the applicants applied for protection visas to obtain bridging visas with work rights and that they did not read nor were made aware of the claims made in their protection visa applications.

    Character references/witness evidence

41. At the hearing I referred to my explanation of the criteria for grants of a protection visa. I noted the character references provided to the Tribunal and [Mr B]’s evidence at the hearing. I explained that while I have no doubts that the information in these statements and expressed by [Mr B] that the applicants are of good character, have engaged in gainful employment in Australia, and will positively contribute to Australia’s community, these matters were not of any assistance in determination of whether they meet the criteria for a protection visa. The applicants confirmed their understanding.

    Claims for protection

1. At the hearing, the applicants confirmed that they were not involved in any political activities in Malaysia nor came to the attention of the authorities in Malaysia for any reason. They confirmed that apart from their inability to secure jobs in their chosen fields or with their preferred companies, they did not face any harm or issues in Malaysia and that they did not fear that they would be harmed by any person or groups if returned to Malaysia.

2. In response to my questions around whether they faced any issues because of their ethnicity or religion, while the applicant wife responded in the negative, the applicant husband referred to his inability to obtain jobs with his preferred companies because they required the applicants to be fluent in Mandarin and that he thought that was racist. I observed that it appeared that he was not successful in obtaining these roles because he lacked a requirement for the role rather than because he was discriminated against because of his Malay ethnicity, and the applicant husband agreed with that observation. He also confirmed that he never faced any issues based on his religion or ethnicity in any other setting. The applicants also reiterated that references to crime, security situation, corruption, and inability to seek assistance from the authorities did not relate to them and that they had no such concerns. They confirmed that while in Malaysia, they did not face any incidents or harm, discrimination, or any form of harassment for any reason.

3. I accept that the applicant husband was unbale to obtain roles that required applicants to be able to speak Mandarin. As agreed by the applicant at the hearing, I do not accept that he was discriminated based on his ethnicity but rather because he did not meet a prerequisite for the roles. I also accept that the references to crime, security situation, corruption, and inability to seek assistance from the authorities did not relate to the applicants and were included in the protection visa application without their knowledge. I accept the applicants’ evidence that they do not hold any concern regarding these issues, did not face any harm while residing in Malaysia, and that they do nor fear any person, groups, or the authorities for any reason if returned to Malaysia. I am not satisfied that the applicants face a real chance of any harm on the basis of these issues raised in their protection visa application or because of their ethnicity or religion, if returned to Malaysia now or in the reasonably foreseeable future.   

4. When asked what they feared would happen if they returned to Malaysia, the applicants stated that they would not find jobs. In response to my observation that the applicant wife was employed in Malaysia in the years prior to coming to Australia and that it did not appear to me that she would not obtain any form of employment, the applicant wife agreed that she would be able to find a job to support herself.

5. The applicant husband referred to his age and said that as a [age]-year-old he was unsure if he would get a job in his field as there are a lot of graduates. He then said that if returned to Malaysia, he would not be too picky and conceded that he would find a job, as he has in the past, but he would not be able to earn as much as he does in Australia and that the costs of living in Malaysia are high.

6. As discussed with the applicants at the hearing, country information indicates that Malaysia’s economic performance over several decades has led to a significant reduction in poverty; and that more recent information on Malaysia’s unemployment rate indicates that in 2022, the unemployment rate in Malaysia was at approximately 3.73 per cent and that it has remained at around 3.3 per cent in 2024. I observed that this suggests that the unemployment rate in Malaysia has remained low and stable at around 3 per cent in recent times. The applicants agreed with this observation and did not wish to respond or add anything further.

7. I observed that considering their educational background, their past employment history in Malaysia, their recent experience in Australia, and their evidence regarding their family members’ circumstances in Malaysia, in the context of the country information about Malaysia’s current economy, it did not appear that they would not be able to find employment to support themselves, or that they would face economic hardship, or be denied the capacity to earn a livelihood of any kind such that their capacity to subsist would be threatened. While I acknowledge that the applicants have been in Australia for 6 years, that they may face some challenges initially in obtaining employment, may not be able to easily obtain jobs in their chosen fields, and may not earn as much as they are able to in Australia, it did not appear to me that such issues they may face amounted to serious harm. The applicants confirmed that they understood and did not wish to add anything further.

8. I am not satisfied that the applicants face a real chance of serious harm for any of the claimed reasons if returned to Malaysia now or in the reasonably foreseeable future.

   REFUGEE ASSESSMENT

9. Considering the applicants’ circumstances as a whole I am not satisfied that the applicants face a real chance of persecution in the foreseeable future if returned to Malaysia. I am not satisfied that the applicants have a well-founded fear of persecution within the meaning of s 5J of the Act.

10. The applicants do not meet the requirements of the definition of refugee in s 5H(1). The applicants do not meet s 36(2)(a).

    COMPLEMENTARY PROTECTION ASSESSMENT

11. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa), which requires an assessment of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that the applicants would suffer significant harm.

12. Significant harm is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

13. As indicated above, I am not satisfied that the applicants will not be able to secure employment or that they will face serious harm in this regard. While I accept that the applicants may face some challenges initially in securing employment and readjusting to living in Malaysia and that they may not be able to earn as much as they do in Australia, I am not satisfied that these challenges and issues amount to significant harm as defined. I am not satisfied that there is an intention to inflict pain or suffering that can reasonably be regarded as cruel and inhuman in nature, severe pain or suffering or an intention to cause extreme humiliation such as to meet the definitions of torture or cruel or inhuman treatment or punishment or degrading treatment or punishment. I am also not satisfied that the applicants will face a real risk of being arbitrarily deprived of their lives or be subject to the death penalty or torture.

14. I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

    MEMBERSHIP OF FAMILY UNIT OF A PERSON

15. Under s 36(2)(b) or s 36(2)(c) of the Act, an applicant may meet the criteria for a protection visa if they are a member of the same family unit as a person who (i) is mentioned in s 36(2)(a) or (aa) and (ii) holds a protection visa of the same class as that applied for by the applicant.

16. As neither of the applicants meets the definition of refugee or the complementary protection criteria, and there is no suggestion that they are a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act who holds a protection visa, it follows that they also do not meet the family unit criteria in either s 36(2)(b) or s 36(2)(c) of the Act.

    DECISION

17. The Tribunal affirms the decisions not to grant the applicants protection visas.

    Samira Kamandi
    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.

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