1902769 (Refugee)

[2024] AATA 3823

1902769 (Refugee) [2024] AATA 3823 (15 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1902769

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jennifer Ermert

DATE:15 August 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 15 August 2024 at 10:43am

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from gangster partner – demands for money for gambling, and assault – unplanned pregnancy and marriage under pressure from family – credibility – no recent contact by husband with applicant or family – relocation possible and reasonable – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v Minister for Home Affairs (2020) 276 FCR 644
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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 on 30 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 30 July 2018. The delegate refused to grant the visa on the basis that the applicant does not meet s 36(2) of the Act because she is not a person in respect of whom Australia has protection obligations, nor is she a member of the same family unit as such a person who holds a protection visa of the same class as that applied for by the applicant.

3. The applicant appeared before the Tribunal on 31 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because she is either a refugee or a person who satisfies the complementary protection criterion.  The applicant has not claimed to be a member of the same family unit as such a person who holds a protection visa of the same class as that applied for by the applicant.  

Identity and country of nationality

1. The applicant provided a copy of the biodata page of her Malaysian passport to the Department in connection with her protection visa application.  In the absence of evidence that the passport a copy of the biodata page of which was provided to the Department is a bogus document as defined by s 5(1) of the Act, the delegate accepted the applicant’s claimed identity and citizenship of Malaysia.

2. The Tribunal has considered the copy of the biodata page of the applicant’s Malaysian passport on her departmental file.  The Tribunal has also had regard to the original of the applicant’s Malaysian passport which was sighted at the hearing, and a scanned copy of the biodata page of which was provided to the Tribunal.  In the absence of evidence that the applicant is not the person she claims to be, the Tribunal also accept the applicant’s identity and accept that she is a citizen of Malaysia.

3. The Tribunal finds the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act is Malaysia.

Personal background and immigration history

1. The applicant is a [Age] year old woman of the Kadazan Dusun ethnicity and the Christian faith, who was born in Kota Kinabalu in the state of Sabah, Malaysia to a family of [Number] children.  Her parents divorced after she departed Malaysia, which she only found out through her sister with whom she has very regular, sometimes daily, contact.  She has no contact with her father, and only occasional contact with her mother due to the poor internet coverage in their village.  Like her parents, her siblings are all in Malaysia and are spread out in either Sabah or Johor. 

2. After completing her secondary education, the applicant commenced studying [subject] at university whilst working as a part time [occupation 1] at a [workplace]. However, she quit university after only 5 months due to cost, but continued working at the [workplace] for another 2 months before she changed job in November 2015, when she started working for [Employer] as [an occupation 2].  The applicant claimed she was in that role for approximately 1.5 years until 2017.  That was the last job she held before coming to Australia.

3. The applicant arrived in Australia [in] May 2018 on a Class UD Class 601 Electronic Travel Authority, and she has not departed since.  On 30 July 2018, the applicant made an application for the grant of a Class XA Subclass 866 protection visa which the delegate refused on 30 January 2019. 

4. The Tribunal accepts each of the above matters to be true.  

Protection claims

1. Despite stating in the protection visa application that she completed the application herself without assistance, the applicant gave evidence at the hearing that another Malaysian person, [A], helped her complete the protection visa application.  The applicant claimed she told [A] information about herself via WhatsApp, which [A] used to complete and submit the visa application on her behalf.  The applicant claimed [A] told her it was an application for a protection visa but she could also study and work while the application was being decided.

2. The protection claims included in the applicant’s protection visa application can be summarised as follows.  Her gangster husband physically assaulted her whenever he was drunk or lost money to gambling.  She did not seek help due to fear of harm to her child and because the authorities would not intervene anyway, and she did not relocate because she did not know anyone outside her area.  Instead, she hid her child in a secret place and ran away.  

3. At the hearing, the applicant gave evidence that she met her husband at a wedding party in 2016.  At the time she was renting an apartment near the [workplace] with another girl so that she could be close to work, given it was too far to commute from home.  After a period of courtship and falling in love with her husband, the applicant moved in with him in October 2016.

4. The applicant claimed that initially, life with her husband was nice and she did not know that he gambled.  However, she soon found out about his gambling when he started to ask her regularly for money to fund his online gambling. She also discovered he was part of a gang when she saw him drinking with a large group one night while she was also out with some friends in the city, and her friends told her that the group were gangsters.  Thereafter, the applicant started noticing that her husband was frequently out at night, and when she asked him what he was doing, he told her he was involved in online gambling with the gang and that was why he was hanging out with them.

5. The applicant claimed that her husband would beat her and cover her in bruises if she did not give him money when he asked.  Despite this, she did not tell her family or friends because she loved her husband, but also because her husband had once told her that he would harm her family and friends if she said anything.  The applicant believed that if she had told her family, they might report to the police which would escalate things and make the situation more dangerous, because the gang her husband was involved with was big in Kota Kinabalu and (from what her husband told her) had gold shops and money lenders.

6. In early 2017, the applicant discovered she was pregnant.  When she refused her husband’s demand to abort the baby because she did not believe it was the right thing to do, her husband became angry and hit her.  When the applicant’s family found out about the pregnancy as her belly started to show, her family pressured her to marry her husband because it would shame the family for her to be pregnant and to give birth without being married.  In July 2017, the applicant married her husband at the marriage registry office.  Subsequently, their daughter was born in [Month]. 

7. When asked by the Tribunal why she married her husband despite his gambling and the abuse, the applicant said she did not have a choice because of the pressure to marry from her family to whom she has not mentioned the abuse due to the afore-mentioned fear.  Her plan at the time was to have the baby (and give the baby a name) then run away from her husband.  The applicant claimed that after the birth of their daughter, her husband continued to ask her for money under threat of harm to her, their daughter and her family, and that her husband once threw their daughter against the couch when he got upset with her. 

8. The applicant claimed she remained with her husband for only 3 months after their daughter’s birth before she took their daughter to live with her mother, telling her family that it was better this way because she had no experience with babies and her husband was busy.  However, when her daughter was 7 months old and just before coming to Australia, she finally told her family everything.  Her family were shocked, but she explained that she did not say anything before then because she was worried they would be harmed by her husband who had warned her against saying anything.  The applicant told her family she had to run away but that she had to leave her daughter behind because she did not have enough money for both of them to come to Australia, and because she did not know how she would survive on her own with a baby, so her mother agreed to look after her daughter.  

9. The applicant claimed her husband messaged her about 2 weeks after she arrived in Australia asking for money.  She told him she was not in Malaysia anymore (without disclosing she was in Australia) and blocked his number.  The Tribunal asked the applicant why she came to Australia instead of finding refuge elsewhere in Malaysia, for example in Johor on Peninsular Malaysia where her brother lives.  In response, the applicant claimed she knew a former colleague who had also suffered from domestic violence and who had come to Australia earlier and told her she could get protection in Australia.  Besides, Malaysia is a small country, with Johor being only a couple of hours flight from Sabah, so her husband and his gang ‘who are everywhere’ would still be able to find her. 

10. The Tribunal asked whether her husband, who the applicant confirmed is aware that their daughter is being looked after by her family, has ever contacted her mother or sister.  The applicant responded not as far as she was aware, and that if he had contacted her mother or sister then they would have told her.  The Tribunal asked the applicant whether she believed she could obtain protection from the police, given DFAT’s 29 June 2021 Country Information Report for Malaysia indicates that the Malaysian police is generally considered by local and international sources to be professional and effective despite the existence of issues such as the perception of corruption and inconsistency of training and capacity.  The applicant was not sure about the DFAT report but said she did not believe the police would help her, because in Malaysia if you had money you could pay the police to turn a blind eye, and if she complained to the police her husband could just give money to the police to close the case. 

11. The Tribunal asked the applicant to explain the reference in her protection visa application to having been ‘thrown out of the car’.  The applicant explained that there was a weekend when her husband went out drinking with his gang before he came to pick up her (she had also gone out with friends).  The applicant said he must have lost money that night because he asked her for money in the car.  She declined and asked him to stop hanging out with the gang instead, so he stopped the car and told her to get out.  When she refused, he pulled her out of the car and drove off, leaving her to call her friend for help.  She was collected by a friend with whom she stayed that night.

12. The Tribunal and the applicant discussed her future plans.  The applicant claimed she wants to divorce her husband and that she has a partner in Australia to whom she has told her story.  They are engaged, and they plan to marry next year.  The Tribunal asked how she would be able to do this, given she is still legally married to her husband despite their current separation.  The applicant stated she does not really know; maybe she could just go to the court and file a divorce petition, but it is hard for her to return to Malaysia to do this because of her current visa status in Australia and because she remains scared of harm from her husband if she returned.  The applicant claimed she has not engaged a lawyer in Malaysia to act on her behalf in relation to the divorce. 

REASONS FOR THE DECISION

1. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed because the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations.

Credibility

1. The applicant will not engage Australia’s protection obligations just because she has a subjectively and genuinely held fear of harm in her home country of Malaysia.  To engage Australia’s protection obligations, her fear of harm must also be objectively well-founded based on an assessment of her specific claims and circumstances, informed by relevant country information. 

2. To determine whether the applicant’s claims are capable of supporting a finding that her fear of harm is objectively well-founded, a necessary first step is to assess the credibility of those claims.  The Tribunal is aware of the importance of adopting a reasonable approach in making credibility findings. In Guo v MIEA (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:

   “…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”

3. When assessing credibility of claims it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.  The United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 2019) states at paragraph [196] that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”

4. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant.  Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

5. The Tribunal has considered the claims made by the applicant and the evidence she gave at the hearing.  On the whole, the Tribunal finds the applicant’s claims to be reasonably plausible.  The applicant was forthright in the presentation of her evidence and her responses to the Tribunal’s questions, and she did so without any discernible attempt at exaggeration.  Accordingly:

   ·The Tribunal accepts the applicant met her husband at a wedding party. 

   ·The Tribunal accepts that the applicant discovered her husband’s gambling habit and involvement with a gang shortly after moving in with her husband.

   ·The Tribunal accepts the applicant’s husband frequently asked her for money to fund his online gambling and that he abused her if she declined.

   ·The Tribunal accepts that her husband once threw her out of the car and left her by the side of the road when she declined his request for money and asked him to stop hanging out with the gang instead.

   ·The Tribunal accepts the applicant fell pregnant by accident, which led to pressure to marry her husband from her family who were unaware at the time of her husband’s gambling and the domestic violence.

   ·The Tribunal accepts the unplanned pregnancy and the applicant’s refusal to have an abortion led to further abuse from her husband.

   ·The Tribunal accepts the applicant married her husband because she felt she has no other choice, stuck between her family’s pressure and fear of possible harm to her family if she disclosed the domestic violence.

   ·The Tribunal accepts that because of her husband’s abuse, including an incident in which he threw their newborn daughter at the couch, the applicant left her husband 3 months after their daughter’s birth and went to her mother’s house.

Assessment of refugee status

1. To be eligible for the grant of a protection visa on the basis of meeting the refugee criterion in s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution in Malaysia, and owing to that fear, is unable or unwilling to avail herself of the protection of Malaysia.  This requires the Tribunal to be satisfied that there is a real chance the applicant would suffer serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group or political opinion, if she returned to Malaysia.

2. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. As indicated at paragraph 35, the Tribunal accepts the applicant suffered domestic violence in the past at the hands of her husband.  However, the Tribunal is not satisfied on the evidence available that the applicant faces a real chance of serious harm from her husband or from the gang he was associated with in the reasonably foreseeable future, if she returned to Malaysia. 

4. Addressing the risk of harm from her husband first, the Tribunal notes that the applicant has not had any contact with her husband for over 6 years ever since she blocked his phone 2 weeks after she arrived in Australia.  Moreover, despite knowing that their daughter is in the care of the applicant’s family, her husband has not made any contact with the applicant’s mother or sister. 

5. The Tribunal has had regard to the applicant’s evidence that her husband does not know exactly which member of her family is looking after their daughter; he just knows their daughter is in her family’s care.  This may well be the case.  However, if the applicant’s husband was sufficiently determined to find their daughter, and/or if he simply wanted to find where the applicant is through her family, the Tribunal considers that the applicant’s husband could and would have made contact with her family and continued his inquiries with each known member of her family until he found what he wanted.  The fact that the applicant’s husband has not made any contact with either her mother or sister in the last 6+ years – and the Tribunal infers from this that he probably has not contacted any of the applicant’s other family members either – strongly suggests that he does not have an ongoing interest in her. 

6. The Tribunal has considered the possibility that the applicant’s husband’s interest in her might be reignited by her return to Sabah, for example because he believes he could resume extorting her for money. The Tribunal considers it is both possible and reasonable for the applicant to avoid this by relocation to another part of Malaysia, such as Johor in Peninsular Malaysia where her brother lives, as discussed with the applicant during the hearing. Johor is safe for human inhabitation and to which safe access is lawfully possible,[1] and with her brother living there, the applicant would also have access to some family support. Furthermore, Peninsular Malaysia is significantly more urbanised and more densely populated than East Malaysia where Sabah is, so even though access from Sabah to Johor is only a couple of hours by plane, the Tribunal finds the applicant’s husband would not be able to find her easily if she relocated to somewhere like Johor.

   [1] FCS17 v Minister for Home Affairs (2020) 276 FCR 644.

7. For the same reason, the Tribunal also rejects the applicant’s claim that her husband’s gang would be able to find her if she relocated.  In any event, the Tribunal does not accept that her husband’s gang ‘are everywhere’ as claimed or that they would help her husband find her.  Although the Tribunal accepts that the applicant’s husband engaged in online gambling and frequently hung out and drank with the gang who, according to her husband, have gold shops and money lenders, the applicant has not provided any evidence to persuade the Tribunal that the gang is constituted by a large network whose presence and operation extended beyond Kota Kinabalu or even Sabah.  The Tribunal also finds it to be a remote and far-fetched possibility that the gang would go to Peninsular Malaysia to seek out the applicant, even if they were requested by her husband, in circumstance where there is no incentive or conceivable benefit for them to do so.

43.Therefore, for all the reasons discussed above, the Tribunal finds there is not a real chance that the applicant would be seriously harmed in the reasonably foreseeable future, whether by her husband or by his gang, if she returned to Malaysia.  Having so found, it is not necessary for the Tribunal to further consider the issue of availability of effective state protection which the Tribunal discussed with the applicant during the hearing, even though DFAT has since released an updated Country Information Report for Malaysia (24 June 2024) which indicates that the Malaysian police force may not be as effective as the 2021 report suggested in providing state protection.  In other words, the updated DFAT Country Information Report has no bearing in circumstance where the Tribunal has found the applicant does not face a real chance of serious harm.

1. As the applicant does not have a real chance of serious harm in the reasonably foreseeable future if she returned to Malaysia, she does not have a well-founded fear of persecution in Malaysia qualifying her for the definition of ‘refugee’.  Accordingly, the applicant does not meet the refugee criterion in s 36(2)(a) of the Act.

Complementary protection assessment

1. Having found the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal must proceed to consider whether the applicant meets the complementary protection criterion in s 36(2)(aa) in the alternative because there are substantial grounds for the Tribunal to believe that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia.

2. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).

1. Given the Tribunal’s finding that the applicant does not face a real chance of serious harm in Malaysia from her husband or the gang he hung out with in the reasonably foreseeable future, it must necessarily follow that the applicant does not face a real risk of significant harm in Malaysia as a necessary and foreseeable consequence of her removal from Australia to Malaysia.  Therefore, the Tribunal also finds that the applicant does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.

Other criteria – member of family unit

1. Finally, as the applicant has not claimed to be a member of the same family unit as another person who engages Australia’s protection obligations and who holds a protection visa of the same class as that applied for by the applicant, and as there is no evidence before the Tribunal to suggest the contrary, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or s 36(2)(c) of the Act.  

DECISION

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

Jennifer Ermert
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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1. Protection visas – criteria provided for by this Act

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1. 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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