1916448 (Refugee)

[2020] AATA 3505

1916448 (Refugee) [2020] AATA 3505 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1916448

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Shahyar Roushan

DATE:1 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2020 at 5:24pm

CATCHWORDS

REFUGEE – protection visa – Thailand – imputed political opinion – support for Yellow Shirts – threats from money lender – fear of killing – fear of physical assault – return visit to Thailand – threats to family – applicant remained in one location – state protection – internal relocation – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background and Claims

2. The applicant is [an age]-year-old national of Thailand. He travelled to Australia in February 2012 on a [temporary visa] and remained for a period of approximately 10 weeks. He was granted another [temporary] visa while offshore and re-entered to Australia [in] January 2013. The applicant lodged an application for a Protection visa on 31 July 2018. On 14 June 2019, a delegate of the Minister refused the applicant’s protection visa application.

3. In his application form, the applicant claimed that he owned [a business] in [a location in] Saraburi, Thailand. After ‘years of struggle due to tragic mishaps and unfortunate events’, he decided to take out a loan from some ‘local politics community lenders.’ He could no longer make repayments after the lenders raised the interest rates. The lenders tried to force him to do ‘illegal activities.’ The applicant claimed that when he refused to do their ‘bidding’ and to repay the money, they started to threaten those around him. They entered his business, destroyed property and physically attacked him. He received death threats form the lenders and was physically and mentally abused. He fled to Australia as he feared for his life. He did not seek help because the lenders are powerful people and have influence in the community. People within the community are fearful of reporting the lenders and the authorities do not dare oppose the lenders due to their wealth and power in the community.  He would not be able to internally relocate as ‘they have placed a bounty on [his] head’ and he will not be able to escape from them. The applicant claimed that, if he were to return to Thailand, the lenders will force him to pay back their money and he will be tortured. His family’s lives will also be in danger.

4. The applicant did not make any further submissions to the Department of Home Affairs (the Department) and he was not invited to an interview.

5. On 14 June 2019, a delegate of the Minister refused his protection visa application.

   The review application

6. On 24 June 2019, the applicant applied for a review of the delegate’s decision.

7. On 29 April 2020, the Tribunal wrote to the applicant by email, advising him that, due to COVID-19, the Tribunal is not holding face to face or in- person hearings and that he may be required to attend a hearing by telephone. The applicant was requested to provide a telephone number to enable the Tribunal to contact him by telephone. On the same day, the applicant responded to the Tribunal’s email and provided his telephone number.

   The hearing

8. The applicant appeared before the Tribunal by telephone on 18 June 2020 to give evidence and present arguments. The applicant was assisted by an interpreter in Thai and English languages.

9. At the hearing, the applicant told the Tribunal that his ex-wife, from who he separated about three years ago, and their [adult] children reside in a house in [a location in] Saraburi Province. He continues to own the house jointly with his ex-wife.

10. He stated that, about 10 years ago, he opened a [business] not far from his house and in order to purchase [equipment], he borrowed money from a local politician and an influential figure in the local area. His income from the shop, however, was not high enough to enable him to meet his repayment obligations. As the interest on the debt accrued, the lender asked him to make a sign, defaming the Yellow Shirts. He refused and instead made a sign in support of the Yellow Shirts. When the lender found out, he put more pressure on the applicant to repay the loan.

11. The applicant was asked what the name of the local politician who had lent him the money was. He said he did not know and just called him [a title]. When asked what type of pressure this person had exerted on him, he replied he had sent someone to threaten him. He then came to Australia. The Tribunal asked him, if he was fearful, why he had decided to return to Thailand after two months of stay in Australia. He said he was working in Australia, but the work ran out as winter approached, so he returned to Thailand. When asked if anything happened to him following his return, he stated that the lender sent someone to threaten him and his family several times and on one occasion they threw things at his car window. It was put to him that if these people wanted to harm him, they had ample opportunity to do so between May 2012 and January 2013 when he returned to Thailand. He said he was careful all the time and they did not have the opportunity to harm him. It was put to him that, according to his own evidence, he worked and lived at his shop during this period and that it was difficult to believe that these people did not have the opportunity to do anything. He said he was unhappy during that time, but he had to remain in Thailand for six months in order to be able to secure another visa to return to Australia.

12. The applicant told the Tribunal that after he again departed Thailand in January 2013, his ex-wife continued to work in the [business] for another four years. When asked why the debt was not paid during this period, he said his ex-wife did not know how to use the [equipment] and had to contract out the [business], making little profit. The Tribunal noted that, according to his evidence at the hearing, he has been working in Australia during the seven years that he has been here. It was put to him that it was difficult to believe that the income generated by the shop and his income in Australia have not been enough to cover the loan. He responded that he separated from his wife four years ago. He has been sending money to his children and the cost of living in Australia is high.

13. The Tribunal referred to the applicant’s claim that the lender and his associates had threatened to harm his family and questioned him as to why his family had remained in the same locality in Thailand after he came to Australia. He said he separated from his wife and he thought if he came to Australia, his problems would go away and his family would be safe. When asked why he believed he would still be at risk of harm if he were to return to Thailand now, he said he has not yet paid the debt and they are waiting for him. When asked how he knew this, he said his daughter is studying in Bangkok and whenever she goes back home, they send someone to give her messages. They say that the applicant has to repay the debt when he returns to Thailand. He said he did not know if other family members had also been approached.

14. It was put to the applicant that Thailand has 76 provinces and a population of approximately 69 million people. He was asked why he would be unable to avoid the harm he fears in his locality by moving to a different province. He responded that those he is indebted to are influential figures and, if they find out he has returned to Thailand, they can put pressure on his children. It was put to him that they do not appear to have put any pressure on his family members, including any pressure to force him to return to Thailand. He said these people can become vengeful if they get angry and they have ‘eyes everywhere’. These people support the Member of Parliament in the district and the he supports them. Its about revenge and they have to see it through.

15. In his response to the hearing invitation, the applicant had requested the Tribunal to take evidence from two witnesses: [Mr A], his employer, and [Ms B], whom he referred to as ‘sister’.

16. At the hearing, the applicant explained that [Ms B] is his landlord and he had met her in Australia 12 months ago. He called her ‘sister’ and she is not biologically or otherwise related to him. When asked what evidence he wanted the Tribunal to take from [Ms B], he said he did not know and that he had just put down her name, as well as the name of his employer, because he was under the impression that he was required to do so. The applicant confirmed that [Mr A] will be giving evidence only in relation to his current employment in Australia and [Ms B] is not aware of his circumstances in Thailand, other than the fact that he is separated from his wife. In view of these explanations, the Tribunal decided not to call the witnesses. However, an opportunity was extended to the applicant to submit written statements from [Ms B] and/or [Mr A] if he wished to do so.

17. No further submissions or evidence was received from the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

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

19. 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.

20. 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).

21. 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.

22. 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

23. 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.

    Analysis, reasons and findings

24. The Tribunal is prepared to accept the applicant’s claims that he opened a [business] in approximately 2009 and that subsequently he borrowed money from a prominent figure in his locality in order to purchase [equipment]. The Tribunal accepts that he faced difficulties repaying the loan and the lender put pressure on him to repay the debt. In his protection visa application, the applicant had claimed that the lender tried to force him to do ‘illegal activities’ and when he refused to do their bidding and to repay the money, he was threatened. At the hearing, however, the applicant did not raise or pursue this claim, stating instead that the lender asked him to make a sign, slandering the Yellow Shirts. He refused and instead made a sign in support of the Yellow Shirts, which resulted in more pressure being put on him to repay the loan. Whilst the Tribunal has some concerns in relation to this discrepancy, it is prepared to give the applicant the benefit of the doubt and accept his spontaneous oral evidence at the hearing that, on one occasion, he refused to make a sign for the lender disparaging the Yellow Shirts[1] and instead he made a sign in support of the Yellow Shirts.  

    [1] The Yellow Shirts represented those opposed to deposed former Prime Minister Thaksin Shinawatra, who was ousted by a military coup in September 2006 (see Profile: Thailand's reds and yellows, BBC News, 13 July 2012,

25. The applicant essentially claims that he fears harm from the lender as he has not repaid the debt and the lender is still angry because the applicant made a sign in support of the Yellow Shirts. For the following reasons, the Tribunal does not accept that there is a real chance or a real risk that the applicant will face serious or significant harm if he were to return to or if he were to be removed to Thailand.

26. The applicant told the Tribunal at the hearing that, before travelling to Australia for the first time in February 2012, the lender had sent someone to threaten him and he travelled to Australia in order to avoid being harmed. The applicant did not claim to have experienced any other harm at that time. Nevertheless, approximately 10 weeks later, he returned to Thailand. When asked why he had returned to Thailand, he said he thought it would be fine and, at that time, he did not know anything. He added that he was working during the period of his stay in Australia, but the work ran out as winter approached, so he returned to Thailand. The Tribunal did not find the applicant’s explanations in this regard to satisfactorily explain why he had put his safety at risk to return to Thailand if he was fearful of being harmed.

27. Indeed, the applicant told the Tribunal that, upon returning to Thailand, he continued to work and also resided at his [business] until he was able to return to Australia some eight months later. He told the Tribunal that, during this period, the lender sent someone to threaten him and his family several times. Other than stating that, on one occasion, someone threw things at his car window, he did not claim to have experienced any other harm or to have been seriously impacted by the threats. He did not claim that there was an unsuccessful attempt to force him to do any illegal activities and the Tribunal does not accept that this occurred. When it was put to him at the hearing that it did not appear that he had experienced serious harm during this period, he said he was careful all the time and ‘they’ did not have the opportunity to harm him. The Tribunal does not find this explanation convincing. As already noted, the applicant worked and lived at his shop and within his locality for a period of eight months. If those making threats against the applicant had any intention of acting on their threats or seriously harming the applicant for the reason of the debt, they had ample opportunity to do so. Similarly, if the lender and/or his associates had any intention of acting on their threats and seriously harming the applicant for his refusal to make a sign defaming the Yellow Shirts and by making a sign supporting the group, they had ample opportunity to do so.  

28. The applicant departed Thailand for Australia again in January 2013. In his absence, his wife operated his business and worked in the [business] for four more years. Despite the applicant's claims that the lender and/or his associates had also threatened members of his family, he did not claim that members of his family had been subjected to any form of harm. If the lender and/or his associates were serious about recovering an unpaid debt or were upset or angry about the applicant absconding without fulfilling his obligations, in any manner that these obligations may have been construed by the lender, it would be reasonable to expect them to have taken some form of action, such as putting pressure on his immediate family or on him through his family to show himself or to repay the debt. Whilst he claimed that his daughter, who is studying in Bangkok, occasionally encounters persons who ask about the applicant when she goes back home, he did not know if other family members had also been approached. The applicant did not claim that his ex-wife or his children were subjected to any form of pressure, intimidation, threat or harm since his departure from Thailand.

29. The Tribunal does not accept the applicant’s explanation that his family was safe because these people knew he no longer lived with his family. The lender’s primary motivation would have been recovering his money and with interest. As already noted, the applicant’s ex-wife continued to operate the [business] until three years ago. It would be reasonable to assume that any creditor would have viewed the business as a source through which at least a portion of the debt could have been paid. Indeed, the applicant told the Tribunal at the hearing that his wife was slowly paying off the debt, but it was not enough. As it was put to the applicant at the hearing, in addition to the payments made by his wife, he has been working in Australia for the past seven years and earning wages in Australian Dollars, which should have covered any money borrowed for the purchase of the [equipment] nearly 10 years ago. The applicant responded that he was sending money to his children when he was still with his ex-wife and that living expenses in Australia are high. The Tribunal finds these explanations unpersuasive. The fact that the lender had not taken any form of meaningful action to recover any money from the applicant’s ex-wife in the four years when she was running the business or from any family member at any point following his departure from Thailand, suggests that either the debt had been repaid or that the lender, for whatever reason, no longer had any interest in recovering the debt.

30. Having considered the evidence before it, the Tribunal is not satisfied that the threats levelled against the applicant while he was in Thailand amount to serious or significant harm. The Tribunal does not accept that the threats would give rise to a real chance or a real risk of serious or significant harm should the applicant return to Thailand or should he be removed from Australia to Thailand as the receiving country. In reaching these findings, the Tribunal has considered the applicant’s significant delay of more than five years in lodging his application for a protection visa. The applicant visited Australia in February 2012, remaining for a period of 10 weeks. He returned to Australia in January 2013 but did not apply for a protection visa until July 2018. At the hearing, he told the Tribunal that he thought he would only stay in Australia for two to three years. In addition, he did not think of applying for protection before his separation from his wife and believed that he would return to Thailand regardless of what happens. The Tribunal does not accept these explanations to satisfactorily address a delay of more than five years in applying for a protection visa. The applicant’s significant delay in applying for a protection visa raise significant doubt in relation to the genuineness of his fear of being harmed.

1. Other than claiming to have been a supporter of the Yellow Shirts and making a sign in support of the group before his departure from Thailand, the applicant did not claim to have been a member of any political party or movement, to have been involved in any political activities or to have expressed or continue to express political views in any other manner. He did not claim to have any history or political profile that would be viewed adversely by anyone. The applicant claimed that the sign he had made had angered the lender, who was a supporter of the Red Shirts. As the Tribunal has found above, if the lender and/or his associates had any intention of acting on their threats and seriously harming the applicant for his refusal to make a sign defaming the Yellow Shirts and by making a sign supporting the group, they had ample opportunity to do so either before his first departure from Thailand in February 2012 or in the eight months following his return to Thailand in May 2013. The Tribunal finds that there is no real chance or a real risk that the applicant would face serious or significant harm at the hands of the lender and/or his associates for the reason of having previously borrowed money from him. The Tribunal finds that there is no real chance or a real risk that the applicant would face serious or significant harm at the hands of the lender, his associates or anyone else for the reason of, or for reasons arising from, his political opinion.  

2. Even if the Tribunal were to accept, which it does not, that the applicant faces a real chance of serious harm in his locality for the reasons he has provided, the Tribunal does not accept that the real chance of persecution relates to all areas of Thailand. As it was put to him at the hearing, Thailand has 76 provinces and a population of approximately 69 million people. He has been away from Thailand for more than seven years and, in view of the applicant’s evidence in relation to the actions of the lender and/or his associates during this period, if he were to return to that country and reside in an area well away from his home province, such as Chiang Mai, the Tribunal considers it highly unlikely that he would be found and/or harmed. The Tribunal does not accept the applicant’s general claims that the lender and/or his associates ‘have eyes everywhere’ or that their links to district politicians would enable them to find him anywhere in Thailand. The Tribunal finds that there is no real chance that the applicant will face serious harm by anyone for any reason in another area, such as Chiang Mai. Thai citizens have freedom of internal travel and choice of residence.[2] Chiang Mai is a safe and habitable area in Thailand.[3] There is no evidence before the Tribunal to suggest that Chiang Mai is affected by civil conflict or that the applicant would not have lawful and safe access to the area.

   [2] Freedom House, Freedom in the World 2020 – Thailand, 4 March 2020 See, for example, Chiang Mai – the good, bad and ugly sides to Thailand’s second city, South China Morning Post, 17 January 2019,

3. Similarly, for the reasons set out in the previous paragraph, if the Tribunal were to accept, which it does not, that the applicant faces a real risk of facing significant harm in his locality for the reasons he has put forward, the Tribunal finds that, if he were to relocate to another area in Thailand, such as Chiang Mai, there would not be a real risk that he will be pursued or found. The Tribunal finds that there would not be a real risk that he will suffer significant harm. The applicant has completed his high school education and ran his own [business] in Thailand before coming to Australia, where has been employed as a farmworker. He is clearly resilient, having travelled to, resided and worked in Australia over the past seven years. The Tribunal finds that there is taken not to be a real risk the applicant will suffer significant harm in Thailand as the Tribunal is satisfied that it would be reasonable for him to relocate to an area of the country where there would not be a real risk that he will suffer significant harm.

4. After considering all of the applicant’s claims, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criteria set out in s.36(2)(a).

5. 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 there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. 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 criteria in s.36(2).

   DECISION

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

   Shahyar Roushan
   Senior 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.

   …