1901903 (Refugee)

[2024] AATA 1958

1901903 (Refugee) [2024] AATA 1958 (8 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901903

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Andrew Verduci

DATE:8 May 2024

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.

Statement made on 08 May 2024 at 4:29pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – original claim of workplace discrimination – delay in review and changes of circumstances – civil marriage to Australian citizen and birth of child – genuine relationship not for purpose of strengthening claim – applicant non-practicing Muslim considered apostate and husband non-practicing Christian – country information – federal civil and state-based syariah law and trend towards religious conservatism – inter-faith marriage not recognised, and child not Malaysian citizen and considered illegitimate – health registration and school enrolments – real chance of serious harm by authorities and parts of society – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2), (a), 65

Migration Regulations 1994 (Cth), Schedule 2

CASE
1706007 (Refugee) [2023] AATA 878

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 dependants.

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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Protection visa application

2. The applicant is a citizen of Malaysia who applied for a Protection visa on 29 April 2018. For the reasons explain below, it is unnecessary to set out in detail why she claimed to fear returning to Malaysia at the time her application for a Protection visa was lodged. It is sufficient to summarise those written as relating to negative treatment she felt she had experienced in her workplace.

3. The delegate found that the applicant’s employment background suggested that employment opportunities were available to her and she had not been discriminated against. The delegate found that the applicant did not face a real chance of serious harm or a real risk of significant harm for the reasons she had claimed, was not satisfied that the applicant met the criteria in s 36(2) of the Act.

   Application for review

4. The applicant applied for a review of the delegate’s decision with this Tribunal on 28 January 2019. Her application for review was only constituted to me on 2 April 2024, however the length of time that it has taken for her application for review to be considered by this Tribunal is regrettable.

5. The applicant has been diligent in giving the Tribunal information about her changing circumstances. Over a number of years, she has given regular and detailed written submissions about her developing relationship with an Australian citizen and the subsequent birth of her daughter. Her submissions have included a copy of her wedding certificate and the birth certificate for her daughter.

6. Additional submissions received after the hearing include a statutory declaration by her husband. He attests to the genuineness of their relationship and describes the applicant’s pain caused by her family upbringing and the cultural and religious norms she experienced in Malaysia. It was accompanied by a photographs of the applicant and him in a variety of social settings, including with his parents in Tasmania. I have been assisted by, and place weight upon, this material.

   Tribunal hearing

7. The applicant appeared before me by MS Teams on 2 May 2024 to give evidence and present arguments. An interpreter in the Malay and English languages was available, however the applicant elected to proceed in English.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

    Mandatory considerations

12. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. I am comfortably satisfied with the applicant’s evidence and credibility. Her oral evidence to me was consistent with relevant biographical information given in her Protection visa application and her written submissions, and the evidence about her relationship with an Australian citizen is consistent, detailed and nuanced. It is supported by relevant documentary evidence including a copy of her MYKAD card, a copy of her marriage certificate and a copy of the birth certificate for her daughter which identifies the applicant and her husband as the child’s parents.

14. Accordingly, I accept that the applicant is a female Malaysia citizen of age. She is ethnic Malay and therefore considered a follower of Islam. She was born in the state of [State]. When she was young, her father left his wife and the family home. The applicant has had no contact with him for a very long time. The applicant’s mother and [siblings] also live in Malaysia, but she has also had no contact with them for a long time.

15. There is no specific event that has caused the applicant to be disconnected from her family and it is the result of many different factors. She went to boarding school and has always tried to be independent. She questioned the Islamic faith from a young age and did not approve of wearing a head scarf. She never felt close to, or supported by, her family and has focused on being self-sufficient and a high achiever in sport. Her family did not approve of her sporting career.

16. The applicant represented Malaysia in national and international sporting events. This explains her international travel prior to coming to Australia. She does not presently have a right to enter and reside in, whether temporarily or permanently, any other country. I find that s. 36(3) of the Act does not apply.

17. Health concerns regarding the curvature of her spine ended her sporting career. This was a difficult period which she described as her life failing apart. It is a hardship that caused her question her religion even more.

18. She travelled to Australia in 2018. Her intention at that time was to get away from the sporting organisation she was working for because she did not feel listened to or valued. She felt excluded from opportunities because her ideas were not popular.

19. She met her now husband in March 2020. They met through a mobile or online dating site. Religion was not an important consideration for her and was not a part of her profile. They courted and their relationship developed over a number of years. She visited Tasmania with him to meet his family in person in December 2021. In June 2022 they registered their de-facto relationship. Her husband is baptised, although he is not a practicing Christian. They were married in a civil service in March 2023 and their child, a daughter, was born in [Year].

20. Her husband is an Australia citizen. Their daughter is therefore an Australian citizen as well.

21. The applicant has not told her family about her marriage in Australia or the birth of her daughter. She has made limited posts about it in social media, and so it is likely that at least some of her friends in Malaysia know about her marriage and daughter.

22. I am comfortably satisfied about the genuineness of the applicant’s relationship in Australia. It is a relationship which only commenced after the delegate’s decision was made. Accordingly, I am satisfied there is a reasonable explanation for why the claim was not made, or the evidence was not given, before then.

23. I am also satisfied that her marriage in Australia and the birth of her child is conduct that was entered into other than for the purposes of strengthening her claim for protection.

24. Arising from these circumstances, the applicant fears returning to Malaysia because she is not a practicing Muslim, is married to a non-Islamic man and has had a child out of wedlock.

25. The laws of Malaysia automatically classified the applicant as a Muslim at birth. Her status as a Muslim is recorded in her MyKad card which I have sighted. As a Muslim, she is subject to Malaysia’s common law and also its syariah based law.[1]

    [1] DFAT Country Information Report: Malaysia (June 2021), para 3.21, 3.26 and 3.27 (>

    Syariah-based law applies in relation to matters including marriage and divorce, and the determination of matters of Islamic law and Malay customs. Islamic affairs are organised at a State based level. State based Enactments are generally similar in content, but not identical to each other.[2]

    [2] DFAT Country Information Report: Malaysia (June 2021), para 3.29 and 3.30.

26. There are reports of an increasing trend towards religious conservatism in Malaysia. Muslim women who do not wear the headscarf or otherwise conform to conservative religious notions of modesty may be subject to shaming in public or on social media.[3]

    Apostasy

    [3] DFAT Country Information Report: Malaysia (June 2021), para 3.39.

27. I accept that the applicant does not follow Islam.

28. She fears that she will be identified and harmed in Malaysia as an apostate because she does not follow the Islamic faith. As a Malay woman, she claims to have no freedom or choice about her religion and will be mistreated as a result.

29. Apostacy itself is not a federal crime. However, some states make apostacy, or attempted apostacy, an offence under syariah law. Where it is permitted, leaving or converting from Islam is extremely difficult in practice. Persons attempting to convert from Islam may face a long and expensive legal battle in both federal civil and state syariah court. Syariah courts rarely grant a declaration that a person is apostate and, in some states, apostacy is a crime punishable by fine, a jail sentence or canning. None of the 168 people recorded as having received permission to leave Islam between 2000 and 2010 were born Muslim to begin with.[4]

    [4] DFAT Country Information Report: Malaysia (June 2021), para 3.39, 3.64 and 3.69.

30. Overall, DFAT assesses that Muslims who attempt to convert from Islam face a high risk of official discrimination under Malaysian law in the form of refusal of official permission to convert. In this context, ‘high risk’ means a strong pattern of incidents; ‘official discrimination’ includes measures to impede access to state protection or services that are available to other sections of the population, including but not limited to difficulties in obtaining personal registration or identity papers, difficulties in having papers recognised, arbitrary arrest and detention.[5]

    [5] DFAT Country Information Report: Malaysia (June 2021), page 3.71 and page 7.

31. I also note that Muslims may be caned under state syariah-based laws for offences such as adultery and certain offences under Islam, including drinking alcohol in public, although DFAT appears to be aware of very limited instances of this occurring.[6]

    [6] DFAT Country Information Report: Malaysia (June 2021), para 4.21.

32. Religious enforcement officers have a range of powers that vary depending on the syariah-based laws that apply in each state. These officers can detain and charge individuals to go before syariah courts for a range of reasons, including but not limited to alcohol consumption or close proximity to members of the opposite sex.[7]

    [7] DFAT Country Information Report: Malaysia (June 2021), para 5.10

33. DFAT assess that most cases in Malaysian civic courts comply with the rule of law, even if issuing contentious verdicts.[8]

    Inter-faith (Muslim/non-Muslim) Marriage

    [8] DFAT Country Information Report: Malaysia (June 2021), para 5.18.

34. The applicant is considered a Muslim because she was born a Malay woman in Malaysia. She has married a non-Muslim Australian citizen in a civil marriage in Australia. Malaysian law does not provide for the foreign husband of a Malaysian woman to be automatically conferred citizenship. The process of citizenship for a foreign husband is more restrictive than the process of citizenship for a foreign wife marrying a Malaysian man. The more restrictive requirements which only apply to a foreign male include, for example, a lengthy period of residence in Malaysia and an intention to marry a Malaysian woman.[9] The intention to marry is a requirement that the applicant and her Australian husband cannot meet.

    [9] N. S. S. N. Saleh, S. A. Shukor & W. A. F. W. Ismail, ‘Equality and Citizenship for Women in Malaysia: Where And When?’, Malaysian Journal of Syariah and Law, Vol. 9, No.1, 103-113, June 2021, p.108, available at >

    This Tribunal (differently constituted) published a useful summary of federal common law and state syariah-based laws in relation to inter-faith marriages and children born out of wedlock in Malaysia. That summary is in 1706007 (Refugee) [2023] AATA 878 (27 February 2023).[10] I have regard to, and place some weight upon, the country information in that decision as it relates to the application currently before me.

    [10] 1706007 (Refugee) [2023] AATA 878 (27 February 2023) >

    As noted above, syariah-based laws apply to marriage and divorce of Muslims in Malaysia. A non-Muslim wishing to marry a Muslim must convert to Islam for the syariah court to officially recognise the marriage. I am satisfied that the applicant’s husband will not attempt to convert to Islam in order to have their marriage lawfully recognised in Malaysia.

35. An interfaith marriage between a non-Muslim and a Muslim is not permitted under civil or syariah-based law. [11] Such marriages are not recognised by state governments and the applicant’s marriage, whilst valid in Australia, cannot be registered with the Malaysian authorities.[12]

    [11] Dr M. S. Subramaniam, ‘Judicial Dilemma: Secular or Syariah for Inter-Faith Family Disputes in Malaysia’, Centre for Asian Legal Exchange (Nagoya University), 1 March 2018, p.14.

    [12] DFAT Country Information Report: Malaysia (June 2021), para 3.66.

36. Section 10 of the Islamic Family Law (Federal Territories) Act 1984 states, for example:

    a.[n]o man shall marry a non-Muslim except a Kitabiya.

    b.No woman shall marry a non-Muslim.

37. Most state Islamic family laws contain the same or similar wording regarding Muslim/non-Muslim marriages.

38. Islamic doctrine in Malaysia places a high cultural value on the institution of marriage. An un-married Muslim woman in a close relationship with a non-Muslim man will likely breach various syariah-based laws. Khalwat (illicit proximity) and zina (unlawful sexual intercourse) are syariah-based law violations that are punishable with a fine or imprisonment, or both. Penalties for immoral offences vary between Malaysian states in accordance with each state’s syariah laws. For example, under the Syariah Criminal Code (Federal Territories) Act 1997 both khalwat and zina are offences but in a practical sense, offenders are commonly prosecuted for khalwat:[13]

    Under section 27 listed above, two people can be legally arrested for khalwat if they are found “in any secluded place or in a house or room under circumstances which may give rise to suspicion that they were engaged in immoral acts.” Note that this definition refers to “immoral,” not “sexual,” acts. Yet in court, this is taken to mean that the couple were, at the time of arrest, engaged in illicit sexual intimacy that may or may not have included unlawful sexual intercourse (zina). Furthermore, what counts as “immoral” acts heavily depends on the subjective interpretations of the religious enforcement officers conducting the arrest. The rather loose and ambiguous definition of what constitutes khalwat thus makes it easier to prosecute couples on this charge, as opposed to other crimes such as zina (s. 23), for example, which would require the testimony of four male witnesses who actually observed the act of sexual penetration taking place.

    [13] ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Nurul Huda Mohd. Fazif, Journal of Women of the Middle East and the Islamic World, Volume 18, Issue 2-3, Brill, October 2020, pp.335-336.

39. Policing of immoral offences is conducted by a dedicated Islamic enforcement unit (Vice Prevention Unit (VPN)) and typically done in areas synonymous with immoral behaviour, like budget hotels, and at other locations when notified by members of the public.[14]

    [14] ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Nurul Huda Mohd. Fazif, Journal of Women of the Middle East and the Islamic World, Volume 18, Issue 2-3, Brill, October 2020, p.336.

40. Country information makes clear that a Muslim man cannot marry a non-Muslim in Malaysia. Whilst the reporting does not refer specifically to the offences of khalwat and zina, I am satisfied that these offences exist in state and federal territory-based syariah law in Malaysia.[15] These offences mean that if the applicant attempted to live in a de facto relationship with her Australian husband, she would be liable for prosecution under syariah law for having committed the offences of khalwat and zina. She may also be subjected to adverse treatment by members of the Muslim community for being involved in what they may consider as immoral actions.

    [15] See sections 23 and 27 of the Syariah Criminal Offences (Federal Territories) Act 1997, >

    There is also limited information regarding the practical consequences of an inter-faith marriage. In at least one example, a Malaysian woman who converted to Hinduism in order to marry her Hindu partner was reportedly taken away at night by officers from the Islamic State Affairs. She was held at an Islamic rehabilitation centre and told she could not live with her non-Muslim husband. Her husband was told to convert to Islam if he wanted his wife returned.[16] I have placed some weight on this being a 2007 report, however.

    Child born out of wedlock

    [16] ‘Malaysian conversion Controversy- 101 East – Part 1’, Al Jazeera English, 13 June 2007, available at

1. The applicant has recently given birth to a child. I am satisfied from the available evidence that the applicant and her husband are the child’s biological parents. The child is an Australian citizen by conferral from her father.

2. The applicant is unable to marry her Australian husband in Malaysia or to have their Australian marriage registered. Her child is therefore considered to have been born out of wedlock.

3. Malaysian law provides for a child to acquire Malaysian citizenship in a number of different circumstances. However, a child born outside of Malaysia (other than in Singapore) to a Malaysian mother and a foreign father is considered to have received the father’s citizenship.[17] Accordingly, the applicant’s child is not considered a Malaysian citizen.

   [17] R. Anand, ‘Unequal Before the Law: How Malaysian Moms and their Kids are Second-Class Citizens’, Between the Lines (Malaysia), 19 June 2021, available at DFAT, ‘DFAT Country Information Report Malaysia’, 29 June 2021, p.50; C. C. Low, ‘Report on Citizenship Law: Malaysia And Singapore’, Global Citizenship Observatory (GLOBALCIT), 1 February 2017, p.16

4. The applicant’s child will be considered illegitimate in Malaysia. This will eventually come to the attention of the Malaysian authorities, in turn affecting the child’s capacity to be registered and enjoy the privileges of Malaysian citizenship. The Tribunal accepts the circumstances of the applicant’s marriage, considered unlawful in Malaysia, and her child will become known given necessary and ordinary school enrolments and health registrations required for her to return and settle in Malaysia. There will be adverse consequences for the applicant and her family unit because Malaysian laws, and Malaysian society more generally, will deem her to have acted immorally in having a child born out of wedlock to a non-Muslim foreign man.

   Conclusion

5. I find that the applicant is a citizen of Malaysia who does not have a right to enter and reside in any other country. She is a Malay woman deemed to be a Muslim by operation of Malaysian law. In practice, however, she does not follow the Islamic faith and will be considered apostate. She is also married to a non-Muslim Australian citizen who is baptised as a Christian although also describes himself as non-practicing. They wed in Australia in a civil service. Her daughter does not have Malaysian citizenship and is considered by Malaysian authorities and society to have been born out of wedlock.

6. In these circumstances, I find that she faces a real chance of serious harm. That harm involves a threat to her liberty, significant physical harassment, significant physical ill-treatment and the denial of access to basic services. The agents of harm are the Malaysian authorities and parts of Malaysian society more generally, making it a real chance of harm that relates to all areas of Malaysia. As the agents of persecution involve state authorities, I find that effective protection measures are not available to her.

7. The essential and significant reason, or reasons, for her feared harm are her religion and and/or membership of a particular social group. This group is characterised as involving a Muslim woman in an interfaith relationship or marriage. These are innate, immutable and fundamental characteristics to the applicant’s identity or conscience that she should not be forced to renounce. The characteristic distinguishes the group from society and the characteristic is not a fear of persecution.

8. Taking steps to modify her behaviour to avoid a real chance of persecution would involve conflict with characteristic that are fundamental to her identity or conscience and/or require the concealment of innate or immutable characteristics.

9. The persecution involves the ongoing prohibition of the applicant’s marriage and a vulnerability to exposure and prosecution by conservative Muslim members of Malaysia’s community and Malay authorities. The applicant will be discriminated against and punished because of her interfaith marriage and child who is deemed illegitimate. This discrimination will be ongoing and targeted. It involves systematic and discriminatory conduct.

10. I find that her relationship with, and marriage to, a non-Muslim Australian citizen is conduct engaged in otherwise than for the purpose of strengthening her claim to be a refugee. I am equally satisfied that the birth of her child was otherwise for the purpose of strengthening her claim to be a refugee

11. I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Andrew Verduci
    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.

    …

    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.

    …