1917686 (Refugee) - [2024] ARTA 543

1917686 (REFUGEE) [2024] ARTA 543 (5 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1917686
Tribunal:General Member J Cabarrús
Date:5 November 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 05 November 2024 at 10:28am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – introduced by classmate – regular attendance and activities – searched, detained and threatened by police, but not charged – delay in departing – limited and vague knowledge of fundamental teachings and practices, and limited evidence of personal connection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a national of China as shown in his passport, applied for the visa on 3 April 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee or complementary protection criteria in the Act.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he meets the complementary protection criterion. These criteria broadly require a person to face a real chance of persecution for specified reasons, or a real risk of significant harm, in their home country. The relevant law is set out in the attachment at the end of this decision.
For the following reasons, I have concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant was born in Xian, Shaanxi, China in [Year]. He came to Australia on a visitor visa in October 2017 and applied for the protection visa in April 2018. The delegate refused to grant the visa in November 2018 and the Department re-notified the applicant of the decision in June 2019. The applicant applied to the Tribunal for review of the decision in July 2019.
The applicant appeared before the Tribunal on 29 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
Summary of claims
The applicant claimed that he would face harm in China because he is a Christian. His claims can be broadly summarised as follows:
a.he grew up in a rural area of Xian called [Location 1], where he lived with his parents and his [sister] until he married his wife in around 2002; they moved to a place called [Location 2] (about half an hour away by motorbike) where they resided for a couple of years; then they moved to a place called [Location 3] (about 15 minutes away), where they resided for another couple of years; then they moved to a place called [Location 4] (about half an hour away) where they resided until he left China in 2017; they had a daughter in around [Year];
b.after he got married, one of his classmates from school named [Mr A] introduced him to Christianity and he started attending church soon after he moved to [Location 2]; he didn’t go very often at first, but gradually started to attend more often; by the time he was living in [Location 3] he was going on a weekly basis, sometimes twice a week, and he identified as a Christian from this time; he continued going to church this frequently until he left China;
c.while he was living in [Location 3], he also started distributing flyers with church colleagues in the street every 10 days or so, and he continued this activity with this frequency until he left China;
d.sometimes he would also offer help at his church, for example, helping elderly people with their bedding, clothes and showering;
e.in the summer of 2005, police came to his home, searched his house aggressively and damaged things like his furniture; they told him that he must not believe in Christianity; they then came 4 or 5 times a year and did this; they also told his wife to keep a close eye on him and stop him from attending church, and threatened her that if he went to church again it would be no good for the family;
f.the police knew he was a Christian because they saw him handing out flyers; the moment they saw the police, they ran away;
g.sometimes the police also came to the construction site where he was working as a labourer and told the managers not to hire him;
h.when the police came to his home the first time in 2005, they also took him to the police station; this happened again every year, but he couldn’t remember how many times; they locked him in a cell for several days and his wife managed to get a connection to get him out; he was never given any paperwork relating to being arrested or charged;
i.police also visited [Mr A]’s home, and after [Mr A]’s home got damaged [Mr A] called the applicant, and the applicant would run away, but sometimes he didn’t have time to run away and the police caught him at home;
j.around 2004, while he was living in [Location 2], he needed to start hiding; if people came to his home, he would get scared and hide in villagers’ homes for a couple of days; he did this several times every year, and it happened every year until he left China in 2017;
k.he decided to leave China sometime between 2013 and 2014, but he didn’t have enough money, so he wasn’t able to leave until 2017;
l.when he first came to Australia, he lived in [Suburb 1], but he did not attend church there because he wasn’t familiar with the roads and didn’t know many people at that time; he moved to [Suburb 2] in around 2018 and began attending church there in around Christmas 2018; by around January 2019, he was attending the church on a weekly basis, and this has continued to the present day; he attends Chinese language mass there every Sunday at 9:00am for 1 to 2 hours; he would also offer help on Sundays if needed.
His visa application included further claims that he was proselytising the word of the Bible in public, and that local authorities defiled religious belongings at his home including tearing a picture of Jesus Christ in his bedroom and burning his Bible outside his home.
Findings and reasons
I discussed the applicant’s claims with him at the hearing. A number of issues of concern emerged in relation to the applicant’s evidence, which I put to the applicant for his response.
Applicant’s Christian beliefs and activities
The applicant told me that [Mr A] had introduced him to Christianity. I asked him what [Mr A] told him about Christianity that made him want to get involved. He replied that after he moved out of his parents’ home, he didn’t get along with his family, and because expenses were high in his new home area of [Location 2], he couldn’t make much money and started sharing his troubles with [Mr A]; [Mr A] told him that he couldn’t get rid of trivial troubles at home, but could try to go to church more often.
The applicant also told me that when he went to church, in the beginning he would listen to people talking, then someone in charge would come out and start talking about the principles and teachings of Christianity. I asked him what made him want to keep going back. He replied that it was because what they talked about at church made him feel better, and everything in society seemed so cruel and material. I asked how it made him feel better and he replied that it promotes the kindness in you.
The applicant told me that he distributed flyers every 10 days or so for over a decade in China. I asked him what the flyers said, and he replied that they promoted kindness. I asked if he could tell me more about how they promoted kindness, and he replied that they were about helping people around you and preventing them from doing wrong things.
The applicant told me that his Christian activities in China comprised attending church, handing out flyers and providing help to elderly people. I asked him whether he did anything else to practise or express his faith in China, and he told me that he didn’t really, because he was at the most fundamental level, and that he wasn’t sure of what might happen at a senior level.
The applicant told me that he had been attending the church in [Suburb 2] on a weekly basis. I asked him if he knew the name of the church or what street it was on. He said that he didn’t know its name, and he was taken there by a friend. I asked him again if he knew what street it was on, and he said he doesn’t understand English and the name of the street is also in English. I asked him whether there was a sign in front of the church with its name, as one would expect that a church offering Chinese language services would have a sign with information including the name of the church in Chinese. He replied that he didn’t see it. I asked the applicant if he could explain why he had never noticed the name of the church that he had been attending every week for more than 5 years. He replied that he observed the church, but there was no Chinese name on it.
The applicant told me that he initially didn’t attend the [Suburb 2] church frequently because there weren’t just Chinese people there, there were people from other countries and he didn’t know the language, but he gradually started going on a more frequent basis. I asked him whether the mass was held in Chinese when his friend first took him to the church, and he replied that it was. I asked what he had meant when he said that he didn’t know the language, and he replied that people from other backgrounds would attend as well, not just Chinese people. I asked why people from other backgrounds would attend to hear a mass in Chinese. He replied that the Chinese people would be taken care of by the Chinese, and people from other countries would be taken care of by their people.
I asked the applicant if he knew the name of the pastor or priest at the church in [Suburb 2], and he said he wasn’t sure. I asked him if he knew the denomination of the church in [Suburb 2], and he said he wasn’t sure. I asked if he knew the denomination of the church he attended in [Location 2], and he said they didn’t tell him what denomination it was, they just called it Christianity.
I asked the applicant if he was baptised and he said that he wasn’t. I asked if his Christian friends were baptised, and he told me he didn’t ask them. I asked whether they talk about baptism in the sermons he attends at [Suburb 2], and he said he’s never heard of it.
I asked the applicant why his faith is important to him, and he replied that he doesn’t have other things here, so his belief is the only thing that he has. I asked him if he could tell me more about his belief. He replied that it is similar to that in China, and asks people not to perform evil deeds. I asked the applicant if he could tell me anything more about why he chooses to follow Christianity. He told me that after he got married, he was bothered by family matters, and at that time, his classmate was a Christian and he got involved. I asked why he stays involved, and he replied that it’s because it’s something that he can mentally rely on. I asked him if he could explain what he meant by that. He replied that whenever he goes to a church and hears people talking, he feels more comfortable in his mind, and people out there are too difficult to deal with. I asked him what family matters were bothering him that made him turn to Christianity. He replied that he started to have disputes at home because he injured his lower back and couldn’t continue heavy duties, so he could only work casually and couldn’t make much money.
I asked the applicant if he reads the Bible, and he said he doesn’t read English. I asked if he read the Bible in Chinese, noting that it is available in Chinese. He replied that he simply listens to the principles people told him.
I asked him what the most important principles are to him. He replied that people will have consequences for the evil things they do in this life. I asked him what sort of consequences, and he replied that there were some negative consequences. I asked if he could tell me anything more about the kinds of negative consequences people might suffer. He replied that there are things that may be negative to you, and they are mainly about your next life. I asked if he could tell me anything more about that, based on his years of practising Christianity, and he replied that he couldn’t really, because he was not well educated, so he only has a general understanding and not a deep understanding.
I asked the applicant if he shared his faith with others. He said he shared with his friends to do more good deeds and not to harm others. I asked if he had done anything else to practice or express his faith in Australia. He said that he would offer a hand to help others if he can.
I asked the applicant when he last attended a service at the church, and he replied that it was last Sunday (i.e. 2 days before the hearing). I asked him what happened during that service, and he told me that he listened to the teachings. I asked him what the teachings were about in that service, and he replied that it generally says that people should not be too mean or evil, and you need to offer a hand to others if you can.
I asked the applicant if he could tell me a story from Christianity that’s important to him and why it was important to him, for example, a story that he had heard at mass. He replied that it’s all told by the Chinese people. I asked if he could tell me about a story that he’d been told that resonated with him or meant something to him. He replied that Chinese people didn’t talk about the stories, it’s more about your thinking.
I put to the applicant that his evidence around his practice of Christianity was vague and did not show the depth of commitment and understanding of Christian faith that I would expect a person in the applicant’s claimed circumstances to show, noting that he had told me that he attended church once or twice a week for around a decade in China and weekly for more than 5 years in Australia. I referred him to some particularly concerning aspects of his account, such as his inability to name the church in [Suburb 2] or recount a bible story, his lack of awareness of key Christian teachings such as those concerning baptism, the absence of typical Christian activities such as prayer or reading the bible, and the vagueness of his responses to questions about his reasons for following Christianity, key Christian tenets or beliefs, and the consequences of bad actions. I asked if the applicant had anything to say in response to these concerns and he said that he did not. He later added that even after staying in Australia for such a long time, he still speaks no English, and wherever he goes, he doesn’t recognise place names, such as the name of the church in [Suburb 2].
Considering the applicant’s evidence as a whole, I find that his responses are not consistent with a genuine practice of Christianity as claimed. While I appreciate different people practice Christianity in different ways, it is reasonable to expect that if the applicant had been attending church as frequently and as often claimed, he would have been able to provide a more cogent and detailed account of his Christian faith and associated activities, particularly in circumstances where he claimed he continued to practice his faith in China in the face of frequent police harassment.
The applicant’s responses to my questions about past events and activities were often brief, vague, and lacking in detail of the kind that might be expected if the claims were true (e.g. around the names of church/priest or the denomination of the church). When I questioned him about his reasons for practising his faith, he gave me vague and superficial answers referring to general concepts such as promoting kindness, making him feel better or more comfortable, and not having anything else apart from his belief. When I questioned him about key Christian principles and beliefs, his responses were also vague and superficial, referring to promoting kindness, helping others, not doing bad things and having consequence for doing bad things, but without connecting these vague principles to key concepts or figures that appear in Christian teachings such as Jesus, heaven, hell, forgiveness, sin or resurrection.
I have taken into account the applicant’s claims that while he was in China his practice was at a fundamental level, but given the frequency with which he claimed to attend church over such a long period of time, this does not explain why his practice and knowledge remained so limited. I have also considered the applicant’s claim that he is not be well educated, but that does not reasonably explain why the applicant was unable to give an account of basic details such as the name or denomination of his church, or explain his personal connection to his faith and in a reasonably coherent way. I also accept the applicant has limited English, which I accept might explain why he would not remember a street name in English, but as I put to him at the hearing, it is reasonable to expect that a church with Chinese language services would have signs in Chinese including a sign with the name of the church, and he did not provide any explanation for why the church in [Suburb 2] would not have this.
Past interactions with authorities in China
As noted above, the applicant gave an account of the police visiting his home 4 or 5 times a year from about 2005 until he left China in 2017, searching his house aggressively and damaging his furniture when they came. I asked the applicant why the police suspected he was a Christian, and he replied that it was because the police saw him distributing the flyers with people from the church. I asked him why the police didn’t approach him while he was handing out the flyers, and why they instead went to his home. He replied that the moment they saw the police, they ran away. As noted above, the applicant told me that he distributed flyers every 10 days or so from around 2005 until he left China in 2017 (i.e. over a decade).
I asked him what the police said or did when they visited his home, and he replied that they started to search for things and didn’t allow him to believe in Christianity. I asked him what he meant by that, and if he could tell me what they said or did. He replied that while they were searching his home they damaged some things. I asked him what they damaged, and he replied that it was things at his home. I asked if he could be more specific, and he said that because they were searching his house aggressively, things were damaged. I asked him what things were damaged, and he replied that it was things like his furniture. I asked if they said or did anything else apart from damaging his furniture, and he replied that they told him that he must not believe in Christianity. He also gave an account of going into hiding in villagers homes several times a year from around 2004 to 2017. He also told me that they had threatened his wife, visited his workplace and visited and harassed [Mr A].

The applicant also told me that from 2005, the police continuously took him to the police station, and that this happened every year but he couldn’t remember how many times. I asked if he was arrested or charged by the police, and he said that they locked him in a cell, but he wasn’t given any paperwork.
I asked the applicant what he did in response to this treatment by the police. He replied that he is just a farmer and he couldn’t do anything. I asked him why he had continued to go to church once or twice a week after the police had told him not to. He replied it’s because it’s not their business, it’s his own business. I asked the applicant when he decided to leave China, and he told me that it was between 2013 and 2014. I asked him why it took him so long to leave China, noting that he came to Australia in 2017. He replied that he didn’t have enough money.
I put to the applicant that his account of his interactions with the authorities in China also seemed vague and lacking in spontaneous detail of the kind that would be expected if the events had occurred, and that there were also aspects of his account that did not appear to have a reasonable explanation.
For example, I put to the applicant that it did not seem reasonable that he would put up with such sustained and repeated harassment from the authorities over such a long period, without taking action to escape the harassment other than occasionally going into hiding (noting he claimed that the harassment had been occurring for about 8 years before he decided he wanted to leave, and that it was another 3 or 4 years until he actually left China); and that I could not understand why the authorities would continue to harass him in the way he claimed they did over such a long period, when that harassment was not achieving their apparent objective of having the applicant cease his practice of Christianity. He replied that he really didn’t know what the police wanted, and that he truly didn’t have enough money and needed to support his family, and it was truly hard to save enough money.
I also put to the applicant that his account of distributing church flyers seemed inconsistent with country information that indicates that regulations prohibiting proselytising are generally enforced across China,[1] and that the police in China are generally effective and well resourced,[2] in light of which it was difficult to understand why he was not subject to any formal penalty (e.g. being arrested, charged or fined), given that he had undertaken this activity so frequently over such a long period. The applicant responded that he ran away when he saw the police, and he was afraid as well, and that even though the behaviour was not allowed by the authorities, he thought it wouldn’t be considered a criminal offence.
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – People’s Republic of China’, 22 December 2021 at 3.26.
[2] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – People’s Republic of China’, 22 December 2021 at 5.3, 5.5; Department of Foreign Affairs and Trade, ‘DFAT Country Report – People’s Republic of China’, 3 March 2015 at 5.5.
The applicant’s responses did not sufficiently address my concerns about his claims. The account of police visits to his house lacked details about what they said to him and what they did when they came, and the applicant has not reasonably explained why the police would continue to repeat these actions several times a year over the course of some 12 or 13 years, during which time the applicant says he continued to attend church and continued to hand out church flyers. Nor has he reasonably explained why he took so long to decide to leave China in the face of such serious and sustained threats and harassment from the police. Nor has he reasonably explained why the police did not formally arrest, charge or fine him on one of the many occasions when he claimed they came to his house, in circumstances where he claimed the police knew that he was a Christian because they saw him handing out flyers (and he ran away from them).
Applicant’s credibility and findings on claims
In light of these problems with the applicant’s evidence, I find that the applicant did not give truthful evidence about his claims, and I do not accept:
a.that the applicant is or has ever been a Christian or has any interest in Christianity;
b.that the applicant had a classmate who introduced him to Christianity;
c.that the applicant ever attended church, distributed flyers, offered to help at a church, helped with any church-related activities, or did anything else to practice or express Christian faith in China or in Australia;
d.that police ever came to the home of the applicant, or told him not to believe in Christianity, or damaged any of his property, or burned a Bible outside his home, or took him to the police station and locked him in a cell, or threatened him or his wife or told her to keep a close eye on him and stop him from attending church, or harassed him in any other way;
e.that the applicant ever went to hide in other villagers’ homes; or
f.that the police ever went to the applicant’s worksite and told managers not to hire him, or that they ever went to the home of [Mr A] or anybody else with whom the applicant was associated.
As I do not accept that these claimed events occurred or that the applicant is a Christian or has any interest in Christianity as claimed, I find there is no real chance that the applicant will face persecution, significant harm, or any other kind of harm in China in the reasonably foreseeable future, arising out of these claims. The applicant told me that apart from his claims relating to being a Christian, there were no other reasons why he was concerned he might face harm in China.
Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT
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 below.
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 below.
Extracts from the Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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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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