1903623 (Refugee) - [2024] AATA 4475

1903623 (Refugee) [2024] AATA 4475 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1903623
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Mary-Ann Cooper
DATE:10 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2024 at 1:44pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – husband borrowed money from loan sharks – domestic violence – economic problems – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 8 November 2018. The delegate refused to grant the visa on the basis the applicant did not satisfy the criterion in s 36(2)(a) of the Act and was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa).
The applicant appeared before the Tribunal on 5 September 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
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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
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
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has considered the written and oral evidence as well as independent resources concerning Malaysia.
Country of nationality
Section 5H(1) of the Act refers to a person being a refugee if he or she is outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
The complementary protection provision, section 36(2)(aa), refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant provided the biodata page of her Malaysian passport, issued on 2 August 2018. Therefore, based on this information, the Tribunal finds that she is a citizen of Malaysia and as such her protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.
Background
The applicant arrived in Australia on [date] September 2018 on an Electronic Travel Authority (Class UD) (Subclass 601) visa, which was due to cease on [date] December 2018. On 8 November 2018 she applied for a Protection (Class XA) (Subclass 866) visa, which was refused by the Department for the reasons noted below.
APPLICANT’S CLAIMS AND EVIDENCE
Protection visa application
The applicant was born in Kedah, Malaysia on [date]. In her protection visa application, she states that she is of Malay ethnicity and Islamic faith, went to primary and secondary school in Malaysia and from [year] to 2003 and was employed as a [occupation] in [workplaces] in Kuala Lumpur. The application indicates she has no family members in Australia or overseas. She claims she left Malaysia because she had quarrelled with her husband and his family ‘due to financial problem. I came to Australia for holiday and to relax my mind. But then, I feel safe here and I want to start a new life. I just want to stay here for a while since my passport will due within 5 years.’ She further claims she was harmed in Malaysia by her husband who beat her when she could not repay money he owed to loan sharks. She further states ‘Loan shark keeping finding me instead of my husband. No ones want to help me because they does not want to get involved with the loan shark.’ She claimed she tried to move and stayed with a friend but ‘due to my religion, I cant disobeyed him without notice. Plus when I tried to made a police report, but his family threaten (sic) me not to do so.’ She is afraid if she returns to Malaysia she will ‘died or having serious injuries and that her husband will ‘keep beat and raped me’.
She does not think the authorities can help her because ‘His family involved in my case. I cant do anything.’ She says she cannot relocate because of ‘financial issues.’
Findings of the Department
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record, a copy of which the applicant provided to the Tribunal with his application for review.
While the delegate notes the high level of illegal moneylending in Malaysia, he determined that there are effective protection measures available to the applicant in Malaysia and accordingly was not satisfied that there was a real chance she would suffer harm from the loan sharks. In relation to domestic violence claims, while acknowledging the difficulties for women to gain adequate state protection, the applicant had not provided any supporting documentation and he was not satisfied she had established her claims. He was satisfied that she could return to Malaysia and live away from her family if she chose to do so. Accordingly he was not satisfied that there was a real chance that she would be persecuted if she returned to Malaysia. For the same reasons he was not satisfied there were significant grounds for believing that that as a necessary and foreseeable consequence of her removal to Malaysia that there was a real risk she would suffer significant harm. Accordingly the application was refused.
Tribunal hearing
At the hearing the applicant advised that she has a mother and three children in Malaysia. Her children live with her mother. She said she speaks or messages them every day. She confirmed that she married in 2005 and that she was not divorced but had separated from her husband ‘a year or two’ before coming to Australia. She claimed she went with her children to her mother’s house in Kedah. Her responses in relation to her marriage were very vague. She said she was not sure if her children see her husband, saying they have never told her that they have seen him. She said she had not spoken to her husband in a long time. When pressed she said it had been ‘months’. When asked what they discussed she said she just asked him if he had seen the children and whether he had given them any money. When asked his response, she said he said ‘Ok’.
The Tribunal asked about her travel to Australia. She said she arrived in September 2018 and travelled to [a city] where she had a friend. When asked if she worked while there, she responded that she did. The Tribunal asked if she was aware she had no permission to work on her visa at that time. She claimed she did not know. The Tribunal asked her why she did not return to Malaysia at the end of her visa, she said she was scared to go home. She said she ran away from her husband because she was afraid of him. She claimed he had borrowed money from loan sharks and had demanded she give him money to pay them back. She further claimed if she did not pay them he would slap and beat her. The Tribunal asked her for some more detail about the loan sharks but she responded that she did not know any details about them or what her husband had borrowed or repaid. She said no loan sharks had approached her directly. She could not remember the last time she had given her husband money for the loan sharks.
Give the mounting inconsistencies between the applicant’s visa application and her oral evidence, the Tribunal asked the applicant if she had completed her visa application. She said a friend of a friend had completed it. When asked if she was satisfied everything in it was true and correct she responded she was. The Tribunal observed that she had not disclosed any family members in her visa application and that she indicated that the loan sharks had approached her. She maintained that she had not seen the application and confirmed she had not been approached by loans sharks.
In relation to her domestic violence claims, the applicant maintained that her husband commenced to assault her when she would not give him money to repay the loan sharks. She said he verbally abused, slapped and kicked her. She could not remember when this started, eventually saying it was when the children were small. She could not remember when she last gave him money for the loan sharks. She said he beat her once or twice every month up until a year or two before she came to Australia, when she left him. She said she took her children to stay with her mother, where they remain. She did not seek medical attention or report the assaults to the police. When asked why, she responded that she was worried it would affect her children’s future and she didn’t want the children further traumatised. Since she had left her husband there were no more assaults or threats of harm from him. While she said he would come looking for her after she left, the Tribunal noted her earlier evidence that, after she had left him, she had not seen him for a year or two. She responded that he sent her messages asking for money. The Tribunal sought to clarify whether he had abused or threatened her in these messages. She confirmed that he just asked for money. The Tribunal also sought to clarify her evidence that he started to physically abuse her two years before she came to Australia but that she had not seen him for one or two years before she came to Australia. She explained that when he hit her she left him straight away however in earlier evidence she had said he commenced hitting her when the children were small and when they got bigger he stopped. She also gave evidence that she could not recall when his violence stopped. She confirmed that, although she had communicated with him after she left Malaysia, she had not received any threats or harm since she left him. In this context, the Tribunal queried whether her husband was still a threat to her. She maintained that if she returned her husband would know and he will recommence abusing her.
CONSIDERATION AND REASONS
Credibility assessment
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This, in turn, requires the Tribunal to assess whether the applicant’s claims are credible. In doing so, the Tribunal is conscious of the difficulties often faced by asylum seekers such as anxiety and nervousness and the length of time between the events they are required to describe and the hearing date. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1] If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[2]
[1] SZLVZ v MIAC [2008] FCA 735 [28].
[2] MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.
Nevertheless, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm.’ It is for the applicant to satisfy the Tribunal that all of the statutory elements are established. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[3]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The applicant claims to fear harm if she is returned to Malaysia from her husband who she asserts was violent towards her during her marriage to him. The applicant’s evidence was vague, confusing and lacking in even general detail. She frequently could not remember or did not know an answer to the Tribunal’s questions about her personal life and/or her fears. She also gave several different versions of her husband’s alleged violence and when it started and stopped. The Tribunal noted the absence of any supporting evidence such as police reports, medical evidence or statements from friends or colleagues. It suggested to the applicant that it may not find her domestic violence claims credible and conclude instead that she had come to Australia to earn money and had applied for protection to extend her stay, not because she was fearful of return because of her husband or loan sharks. She responded that she just wanted to stay a year or more to earn money for her mother and children.
She confirmed that she had no other reason to fear return to Malaysia.
While the Tribunal accepts that persons suffering trauma may not have a good recollection of the events precipitating that trauma, given the vagueness of the applicant’s responses, the apparent inconsistencies which she did not adequately explain, and the fact her claims were unsupported by any objective evidence or substantiating detail, the Tribunal is not satisfied that she was subjected to domestic violence and that fears serious harm from her husband on her return to Malaysia. Instead it considers that she came to Australia and wishes to stay in Australia in order to financially support her children and her mother with whom the children live.
Refugee assessment
Section 5H(1) of the Act provides that a person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of their nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country. As noted above, the applicant’s nationality is Malaysian and she is outside that country.
Section 5J of the Act further provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (s 5J(1)(a)); and
·     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 above (s 5J(1)(b)); and
·     the real chance of persecution relates to all areas of a receiving country (s 5J(1)(c)).
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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.[4]
[4] Chan Yee Kin v MIEA (1989) 169 CLR 379.
‘Persecution’ is not defined in the Act, however ss 5J(4)-(5) provide meaning. Specifically, a person will not meet the definition of a refugee unless the persecution involves: serious harm to the person; systematic and discriminatory conduct; and the essential and significant reason or reasons for the persecution is for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Thus the first issue for determination is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
As noted above, the Tribunal is not satisfied that the applicant experienced domestic violence in Malaysia. Even if the Tribunal did accept her evidence in this regard, it is not satisfied that there is a real chance if she was returned to Malaysia she would be subjected to serious harm by her husband. This is because, on the applicant’s evidence, she left him a year or two before coming to Australia, since then they have communicated and those communications have not involved any threats or harassment. As it has been over six years since the applicant left Malaysia, and her husband has not sought money from her for loan sharks or threatened or harassed her in any way, the Tribunal is not satisfied that there is an evidential basis on which it can be satisfied that there is anything other than a speculative or remote chance that he will find her and harm her if she returns to Malaysia.

Therefore, for all the above reasons, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as defined by s 5J(1) of the Act and therefore she does not meet the definition of ‘refugee’ in s 5H of the Act in this regard.
While the Tribunal is satisfied that the applicant does not want to return to Malaysia, in the absence of any persuasive or supportive evidence otherwise, it is not satisfied this is for reasons of her race, religion, nationality, political opinion or membership of a particular social group. Instead the applicant’s evidence indicates she came to Australia to earn money to support her mother and children who live together in Malaysia and she fears return because she will no longer be able to do so.
The Tribunal finds that any persecution the applicant fears in relation to this issue would not be for reasons of race, religion, nationality, membership of a particular social group or political opinion. Rather, the essential and significant reason for the harm that the applicant claims she will suffer is because of the state of the economy in Malaysia, not for one of the reasons listed in s 5J(1)(a) of the Act (s 5J(4)(a)).
Therefore, in relation to the applicant’s claim regarding economic harm she fears on return to Malaysia, it does not meet the criteria in s 5J(1)(a) of the Act and, it follows, does not meet s 5J(1) as a whole.
Consequently, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as defined by s 5J(1) of the Act and therefore she does not meet the definition of ‘refugee’ in s 5H of the Act.
Accordingly, in relation to the claims of reduced financial circumstances/economic harm, the applicant is not a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion in s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether he is a person in respect of whom Australia has protection obligations under the complementary protection grounds set out in s 36(2)(aa) of the Act.
This requires that there be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant 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’).
In this context, a ‘real risk’ in s 36(2)(aa) has been held to impose the same standard as the assessment of ‘real chance’ in the refugee criterion in s 36(2)(a).[5] A ‘real chance’ in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[6]
[5] MIAC v SZQRB (2013) 210 FCR 505; Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1, as re-issued 29 February 2020; MZYXS v MIAC [2013] FMCA 13.
[6] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A). 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.
In relation to the applicant’s domestic violence claims, given the Tribunal’s above findings, it is not satisfied that there are any grounds on which to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm in this regard.
Even if it did accept those domestic violence claims, the Tribunal notes, on the applicant’s evidence, that they have continued to communicate and there have been no ongoing threats and the relationship between the applicant and her husband over the last six/seven years. In the absence of any evidence otherwise, the Tribunal is not satisfied that there are any substantial grounds on which to believe, as a necessary and foreseeable consequence of her return, that the applicant would suffer significant harm as defined from her husband.
While the Tribunal accepts that the applicant fears reduced financial circumstances should she be returned to Malaysia, there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act. The economic situation in Malaysia clearly applies to its population in general, not the applicant personally.
Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is not satisfied in this regard that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her removal to Malaysia, there is a real risk the applicant will suffer significant harm as defined (s 36(2A)).
The applicant did not advance any other reason in her claims or evidence that she is owed Australia’s protection obligations.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mary-Ann Cooper
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
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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