1920289 (Refugee)

[2024] AATA 4006

1920289 (Refugee) [2024] AATA 4006 (15 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Bimal Bhattarai (MARN: 9685736)

CASE NUMBER:  1920289

COUNTRY OF REFERENCE:                   China

MEMBER:Kylie Allen

DATE:15 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2024 at 10:04am

CATCHWORDS

REFUGEE – Protection Visa – China – religion – Catholic – understanding of Christianity and Catholicism was extremely limited – the fabrication of claims – do not accept that the applicant is or was a Catholic – no real chance that the applicant will be harmed for the reason of his religion – 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 2 March 2019. The delegate refused to grant the visa on the basis that the applicant was not owed protection.

3. The applicant appeared before the Tribunal on 30 May 2024 and again on 22 July 2024 to give evidence and present arguments in relation to his claims. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   EVIDENCE BEFORE THE TRIBUNAL

   Mandatory considerations

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

6. The Tribunal has also taken into account material provided by the applicant to the Department and the Tribunal as well as material provided by the Department to the Tribunal. The key information is summarised below.

   Protection visa application and refusal

7. On 2 March 2019, the applicant applied for a protection visa. The applicant’s claims included the following:

   ·     He was born in [year] in Weihai City in the Shandong Province of China. He is married and his wife and adult son live in China.

   ·     He is Catholic and is persecuted in China.

   ·     He was in a Catholic gathering and the police rushed in and disrupted their activities. The police beat him and he resisted. He was detained for 7 days.

   ·     He is unable to practise his religion in China and fears he will be beaten, threatened and arrested if he returns.

8. The applicant was invited to attend an interview with the Department on 3 July 2019 to discuss his claims. He did not attend and he did not provide any further information.

9. On 23 July 2019, a delegate of the Minister refused the application for a protection visa.

   Application to Tribunal

10. On 24 July 2019, the applicant lodged an application for a review of the decision with the Tribunal.

    Tribunal hearing – first part

11. The applicant was invited to attend a hearing with the Tribunal on 30 May 2024. He did not acknowledge or respond to the invitation but did attend on the day with his representative. At that hearing the applicant raised new matters and sought to rely on documents and information he had not provided to the Tribunal prior to hearing. The representative was not aware of the documentation being referred to. The applicant claimed that he had been denied payment under a contract with the local authorities because of his religion. The hearing was adjourned and the applicant was invited to provide documentation and submissions to be considered at a later resumption of hearing.

    Submissions

12. On 21 June 2024, the applicant provided submissions to the Tribunal in support of his claims. They included:

    ·     9 Photos in support of his claim that he has attended a church.

    ·     An untranslated document from [a] church.

    ·     An untranslated document and 3 untranslated letters.

    ·     An untranslated document from [Church 2].

    ·     3 letters dated 20 June 2024 from persons stating that they attend church together.

    ·     An undated and unsigned letter inviting the applicant to join Christianity.

    ·     News articles and reports about the treatment of Christians in China. The representative submitted that the information indicates that there is no chance to freely practice Christianity in China and anyone who does is destined to be persecuted by the regime.

13. The applicant’s representative noted that the following further documents are forthcoming.

    ·     Official reference from the church he is attending.

    ·     Baptism Certificate. The representative noted that in relation to the baptism, the applicant says he was baptised in China however he has no certificate. He is currently in consultation with the church leaders here and if they advise to rebaptise him he will follow their advice and the Tribunal will be updated.

    Tribunal hearing – second part

14. On 22 July 2024, the applicant attended a resumed hearing before the Tribunal after the initial hearing was adjourned. This gave the parties the opportunity to discuss the additional information provided by the applicant at the first part of the hearing and after the hearing. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.

    Post hearing submissions

15. On 26 July 2024, the applicant’s representative provided the Tribunal with the following information in response to concerns raised by the Member at hearing:

    ·     A print out of Gmail message dated 23 July 2024 from the applicant thanking his lawyer and the Tribunal.

    ·     Handwritten letters in Chinese with translations, purportedly from the applicant’s friends in China all with similar wording saying that he is a good Christian and that they attended religious gatherings together.

    ·     Untranslated documents which the representative says are official documents from China in relation to the case that the government has refused to pay him money as the applicant has stated in the Tribunal.

    ·     An untranslated letter which the representative says is a further letter of support.

16. The representative requested 1 to 2 weeks to provide translations. To date these have not been forthcoming and there has been no request for any extension of time.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Refugee assessment

17. Section 5H(1) of the Act provides that a person is a refugee if, in a case where the person has a nationality, he or she 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 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.

18. Under s.5J of the Act ‘well-founded fear of persecution’ involves a number of components  which include that:

    ·     the person fears persecution and there is a real chance that the person would be persecuted

    ·     the real chance of persecution relates to all areas of the receiving country

    ·     the persecution involves serious harm and systematic and discriminatory conduct

    ·     the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion

    ·     the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and

    ·     the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.

19. The issue in this case is whether the applicant is owed protection as a refugee or as a person entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality and identity

20. The applicant claims to have been born in China. His wife and adult son still live in China in the Shandong province. At hearing it was difficult to ascertain exactly where he lived and when, however it would appear that his last address from approximately 1998 until 2017 was a property purchased by his wife before their marriage. At hearing he advised that his parents were farmers and died in the 1990s. He has 2 brothers who are farmers in China and a brother that moved to [another country] many years ago. He stated that in China he graduated from high school and then worked in [industry]. He said he would be afraid to return to China due to his Catholic beliefs but otherwise he would return to his old home to live with his wife. He said he is the only one in the family that holds Catholic beliefs. No-one else has any religion. He said his family find life in China difficult due to the cost of living. Based on his description of his life in China and his Chinese passport, I accept that the applicant’s identity is as claimed that he is a Chinese national and that his receiving country is China.

    Christian Catholic belief

21. The applicant claims to be Catholic and to fear harm on his return to China on the basis of his religion. He claims that he was harmed at a Catholic gathering when he lived in China and detained for 7 days. He also claims that he was denied payment under a contract with the local authorities because of his religion. Given the limited information contained in the protection application, the applicant was asked about his religion and his experiences in China at hearing.

22. He said he became a Christian in 1988 or 1989. [Brother A] and [Sister B] referred him and took him to their local church in his hometown and he liked it. The applicant was asked about his family and he said they did not believe in religion. The applicant was asked about [Brother A] and [Sister B]. He said that they were frequently arrested and detained and prohibited from interacting with other people. They are now an advanced age and the government has prohibited them from spreading any religious information. It was unclear how he knew this.

23. The applicant was asked why he liked the religion. He said everything the Bible says about mercy and freedom. The applicant was asked about the services he has attended. He said they pray, the Bishop reads the Bible and they are told to behave like the Bible says. Afterwards they will communicate with each other and they are taught to do good deeds and not to do bad deeds. The applicant was asked if he was baptised as a Catholic in China and if so whether he had a certificate. He said he can’t remember and he has no certificate.

24. The applicant was asked about his religious activity in Australia. He said that in Sydney he made a lot of friends and they took him to [Church 1] in [Suburb 1] and that he still goes there often. The services are in Chinese and they teach the Bible. He said he still goes there often whenever he has time on Sundays. The applicant was asked if he worships at home. He said yes, when asked how, he said he places his hand on his chest and prays. He said there is nothing else he does to practice Christianity.

25. The applicant claimed he had not stopped being a Christian from 1989 until now. The applicant was asked how his faith and religious knowledge developed over the past 36 years. He said that he listened to the Bible every day. He was asked what he learnt. He said, be filial, listen to your parents, don’t lie, don’t rape, don’t kill and don’t be greedy. He said that is all he can think of. The applicant was asked who some of the important people in the Bible are. He said the holy father and the holy son, holy spirit and Jesus. I asked him to tell me about them. He said he is not at that level yet so he cannot go in detail. You need to study every day to know that.

26. The applicant was asked about the last church service he attended. He said it was ‘last week’. He was asked what the sermon was about. He said that people talked about the Bible. He did not hear clearly so cannot explain it very well. The applicant’s evidence about his Christian beliefs was not particularly detailed or persuasive for someone who claims to be a committed and practising Christian.

27. After the first part of the hearing, the applicant provided further evidence to support his claim that he is a practising Catholic. His evidence included photos in support of his claim that he has attended a church. These photographs appear to have been taken for the purpose of the protection application as they show the applicant with the service behind him. They show him attending a service at a traditional church with screens showing Chinese script. Another set of photos show the applicant in a room with other people at a gathering that could be a religious service. In one of those photos the screen shows [Church 2] Church. He provided a letter dated 19 July 2024 from Rev [C] of [Church 2] stating that he joined their church in early June 2024 (after the first part of the hearing) and that he has applied for baptism which is scheduled for November 2024. He also provided three letters dated 20 June 2024 from persons saying that the applicant is known to them as they go to church together. They do not say which church, when or how often so are of limited value.

28. At the second part of the hearing the applicant provided those same documents as well as untranslated documents from [Church 2] Church which may be information flyers. They provide the church address in [Suburb 2] indicating meetings at [a venue].

29. At the hearing I raised a number of concerns with the applicant about his claims to be a genuine Christian and whether he would seek to practice Christianity in China. From what he told me at the hearing his understanding of Christianity and Catholicism was extremely limited and I was not persuaded that he was ever a Christian in China or Australia. His account of how he became a Christian was not compelling and was unsupported. Further, his family are still living in China unharmed, and the applicant is supporting them. I consider it likely that he came to Australia to work. The applicant was invited to comment. The applicant’s representative advised that the applicant had problems with his previous agent and that he would arrange to provide documents and have them translated.

30. I also raised a concern with the applicant about the evidence he provided to support his attendance at a church in Sydney. The photographic evidence is very limited, it shows him at a church or churches and it does not tell me which church, how long or how many times he attended or how regularly. Most of the evidence is untranslated. The letters of support provided do not say how long he attended or his level of involvement. It was raised with the applicant that I consider that he attended church recently to further his protection claims. The applicant was invited to comment. The applicant advised that he attends church in [Suburb 2] even though he is living in [another suburb] and that he attends that church because he has good friends there.

31. After the second part of the hearing on 26 July 2024 the applicant’s representative provided additional documents to the Tribunal including what are claimed to be letters of support from people in China who knew the applicant as a religious person. The letters all had very similar wording and are unable to verified as coming from China or from people who knew the applicant in China. They appear to have only been provided after the lack of evidence was raised with the applicant at the hearing. I place little weight on these letters of support as I am unable to be certain of their probative value.

32. I have considered the applicant’s claim to have converted to Catholicism in 1988 or 1989. He has been unable to corroborate this claim and I consider that his letters of support recently provided are of limited value in providing this corroboration. I do not know who wrote them and when or why. They do not appear to be from [Sister B] or [Brother A] or people mentioned in the applicant’s account of his conversion. I have therefore considered whether the applicant’s knowledge of Christianity and Catholicism was consistent with someone who has been a Christian for over 30 years. I consider that his evidence in this regard was very limited, appeared rehearsed and did not persuade me that he had been a practising Christian for many years. I do not accept that the applicant converted to Catholicism in China, I consider that he came to Australia to earn money to support his family. I consider that he may have been assisted in the fabrication of these claims by his former agent.

33. I have considered the applicant’s claim to have been practising Christianity in Australia. His evidence on this matter at hearing was not clear. He did not claim to have ever sought out a Chinese Catholic church in Australia. In the first part of the hearing he said he attended the [Church 1] in [Suburb 1] and that he still goes there often. At the second part of the hearing he provided evidence showing him attending [Church 2] Church. He provided a letter dated 19 July 2024 from Rev [C] of [Church 2] Church stating that he joined their church in early June 2024 (after the first part of the hearing) and that he has applied for baptism which is scheduled for November 2024. He also provided three letters dated 20 June 2024 from persons saying that the applicant is known to them as they go to church together. They do not say which church, when or how often. The letters have very limited probative value. I cannot determine who wrote them, why or what they prove.

34. I accept that the applicant may have attended church with friends prior to the first part of the hearing but I do not accept that he is a member of that church or that he attends there regularly. I accept that after the first part of the hearing he attended another church in [Suburb 2] for the sole purpose of furthering his protection claims after concerns were raised with him about whether he was actually a practising Christian in Australia. I do not accept that the applicant is or was ever a genuine Christian convert to the Catholic or any other faith.

    Police involvement and commercial dispute in China

35. The applicant also made a claim in is protection application and at hearing that he faced harm in China when police raided a church meeting he attended. At hearing the applicant was asked to provide more information about this claim as the information in the protection visa application was fairly scant.

36. The applicant said that he participated in a Catholic gathering [in] March 1993. The local police came to arrest them and beat them and he was detained for 7 days. The applicant was asked what he was charged with. He said he had a Catholic religious belief. He said that there was no court appearance that they just went directly to prison. When asked what evidence he had that this occurred, he said that he lost several of his teeth and he has a bump on his head. Based on this verbal advice, I cannot be certain of the cause of these injuries or when they occurred. When asked what secured his release after 7 days he said they release you and prohibit you from participating in gatherings and they ask us to participate in government appointed churches which he did not do. He also said that the local government withheld the project payment for some [work] he did for them and that he fears harm from them on his return.

1. The applicant was asked what has happened to the church now. He said it had been demolished and those people who were there do not meet anywhere else because the government sent someone to monitor them. He has not been contacted by the government about his religious beliefs since 1993 when this occurred. His family members have been left alone as they do not have religious beliefs.

2. As set out above, I do not accept that the applicant ever joined a church in China or that he is or was practising Catholic. Based on those findings and the applicant’s account of this claimed harm and the lack of corroboration, I do not accept that he came to the attention of police, was beaten or detained. Further I note that the applicant was able to leave China unharmed and unhindered in 2017 indicating that he was not a person of any interest to the authorities in China at that time.

3. At hearing the applicant added a new claim that he faced harassment from 1993 until his departure from China in 2017 because of his religious beliefs. He said that people there knew him and he could not work. He was frequently beaten up including by criminal gangs hired by the government. They took him to court using fake IUO notes. In 2021 he was sued by the government. He cannot recall how many times he was beaten up and detained. He said he did not seek medical treatment or have any records about this because he did not have money. The applicant was asked why the authorities would be interested in him in 2024 when they last contacted him about his religious beliefs in 1993 and he was able to freely leave the country in 2017. He responded that it is because the government still owes him 3,000,000 RMB on a contract and they have refused to pay him. He said that he last asked for the repayment in 2016 when he went to the government office. The applicant was asked why he would pursue this money if it placed him in harms way. He said that they might pay sometimes and other times not. They do not beat you when you go to the office only at other times. He was asked about the contract and its terms as he had not provided evidence to corroborate this claim. He said that the contract ran from 1993-2010. The applicant was asked why he entered into a contract with the government after he had trouble in 1993. He said that if you refuse to work for them they will force you to work for them. He said he was able to freely leave the country in 2017 because he came to Australia under the guise of tourism. As with my findings above, I do not accept that the applicant was of interest the authorities in China because of his religion and I do not accept that the applicant is or was a Catholic. I do not accept that the applicant had problems of a commercial nature with the authorities because of his religious beliefs.

4. The applicant claims to fear harm on his return to China on the basis of his religion. I do not accept that the applicant is or was a Catholic or a genuine Christian convert and accordingly I do not accept that he ever faced harm or would face any harm on that basis. I do accept that he has recently been attending church in Australia. In determining whether the person has a well-founded fear of persecution for one or more of the reasons set out in s 5J of the Act, race, religion, nationality, membership of a particular social group or political opinion, 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. I consider that the applicant’s church attendance and Christian practice engaged in Australia is for the sole purpose of strengthening his protection claims, and therefore I am not having regard to that in this assessment. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). The applicant does not face a real chance of persecution.

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).

   Refugee: conclusion

6. The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).

   Complementary protection assessment

7. A criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

8. Under s.36(2A), a person will suffer ‘significant harm’ if:

   ·     the person will be arbitrarily deprived of his or her life

   ·     the death penalty will be carried out on the person

   ·     the person will be subjected to torture

   ·     the person will be subjected to cruel or inhuman treatment or punishment, or

   ·     the person will be subjected to degrading treatment or punishment.

   ·     The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.

9. As noted above, the applicant claims that he will face harm on his return to China because of his religion. Based on his account of his faith and his evidence, I have not accepted that the applicant has any religion including as a Catholic or a Christian. I do accept that the applicant may have attended a church in Australia on an occasion prior to the hearing. I also accept that he has been attending [Church 2] Church since June 2024 for the purpose of furthering his protection application after concerns were raised with him as to the genuineness of his beliefs and practice.

10. I have turned my mind to whether the applicant would face a real risk of significant harm on his return to China because of this church attendance. The applicant has not adduced evidence to indicate that his church attendance in Australia has come to the attention of anyone in China, including the Chinese authorities or that he would face any harm on that basis on his return to China. The applicant has not indicated that he is engaged in proselytization or that he posts about his beliefs in any public manner. The information before me does not indicate that the Chinese authorities would be aware of his church attendance or that they would harm him in the ways defined in the Act, including any intention to arbitrarily deprive him of his life or subject him to the death penalty or carry out torture, cruel or inhuman or degrading treatment or punishment because of his church attendance. I am not satisfied that there is a real risk that the applicant will suffer significant harm on his return to China. I am satisfied that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.

11. Having carefully considered the applicant’s claims, I find that there is no real risk of the applicant suffering significant harm for reasons of his church attendance in Australia or for any other reason on his return to China.

    Complementary protection: conclusion

12. There are not substantial grounds for believing that, as a necessary and foreseeable  consequence of being returned from Australia to a receiving country, there is a real risk that  the applicant will suffer significant harm.

13. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

    DECISION

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

    Kylie Allen
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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    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.

    …