1926346 (Refugee)

[2022] AATA 2772

1926346 (Refugee) [2022] AATA 2772 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926346

COUNTRY OF REFERENCE:                   India

MEMBER:Mark O'Loughlin

DATE:29 June 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 29 June 2022 at 12:52pm

CATCHWORDS

REFUGEE – Protection visa – India – religion – Sikh – low level of discrimination – former army members – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
FCS17 V MHA (2020) 276 FCR 644

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 10 September 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 India, applied for the visa on 16 March 2017. The delegate refused to grant the visa on the basis that the applicant does not face persecution or relevant harm in India.

3. The applicant appeared before the Tribunal on 15 March 2022 and 7 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. The applicant does not claim that he is the member of the same family unit of a relevant person and there is no evidence that he is.  The Tribunal finds that he does not, therefore, satisfy the criteria in s 36(2) (b) or (c).

6. 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.

7. 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).

8. 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.

9. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant satisfies either the refugee or complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. In considering the application the Tribunal has relied on the visa application submitted by the applicant dated 16 March 2017, the decision of the delegate dated 10 September 2019, and various other documents referred to in this decision.

13. At the beginning of the hearing on 15 March 2022 the Tribunal asked the applicant whether he had completed the visa application himself.

14. He advised that he had needed some help from another Indian man as he did not understand all of the English words.  It was apparent that there were at least 2 different types of handwriting on the application document despite the assertion that the applicant had had no help in completing the application[1].

    [1] Application for a Protection Visa form 866 Part C 14 March 2017

15. He further explained that he had not had the delegate’s decision explained or interpreted to him.  He said that he did understand that his application had been refused and he had 28 days to make the application to this Tribunal for review, so he did so without having the decision explained to him.

16. The Tribunal explained that it would usually expect the applicant to be familiar with the delegate’s decision but that it could not make that assumption in this matter.

17. The applicant gave evidence that he was born in [year] and was [age] at the time of the first hearing.  He said he was born in Jammu and Kashmir and was the youngest child of a family of [number siblings].

18. He said that his father had worked in construction then joined the police.  His father also had a little land which is where they lived.

19. He said that they were poor while he was growing up.

20. He went to school until grade 9.  He left school to help the family with some cattle they owned.  He did that for about 3 years then he joined the army when he was about [age].

21. In the army he served in oppressed areas near the border with Pakistan.  He served as a soldier, going on patrols.  He explained that the army divided the border areas into “field areas” and “peace areas”.  He said it was normal to do 18 months to 2 years in a field area and then spend time in a peace area.

22. He said that he did a total of 10 years in field areas and 8 years and 6 months in peace areas.  He got out of the army [in] February 2013. 

23. He said that after he left the army, he had a pension and he decided to stay home for a while because he had missed so much of his children’s childhoods.  He has [two children].  He said that he married in 2000 and that his children were about [age and age] respectively when he got out of the army.

24. He said that while he was in the army his family usually stayed at the family home although one year they came to live with him in Jalandhar.  The Tribunal notes that the applicant’s family have therefore lived in the family home for at least 20 years.

25. He said he believes the family home is in a field area and that most of Jammu and Kashmir (“J and K”) is in a field area.   This is because so much of it is on the border with Pakistan.

26. The applicant said that he went back to work in 2015.  That was also with the army and involved doing army duties, [military work], and physical training.  He said that he did that for about a year and a half but then applied for a visa to come to Australia because the firing never stops, and he did not feel safe.

27. The Tribunal sought to confirm the applicant’s claims given that he had not completed all of the visa application form himself.  The relevant questions are 90 to 96 inclusive, all though not all of those questions required answers.

28. The Tribunal asked him about question 89 of the application form which asks about his reasons for leaving his home country.  The Tribunal put to the applicant that he had replied:

    “As part of the military services receiving threat as I am ex servicemen of insecured place of India near to the Pakistan border.”

29. The applicant agreed that that answer was accurate and said that he had written it himself, that it was not written by the friend who helped him with the application.

30. The Tribunal asked the applicant what he thinks will happen to him if he goes back.  He said that his life is in danger.

31. The applicant also said that his answer to question 91- “Always insecure from unknown persons across the boarder”, was an answer he wrote himself and that it describes the harm that he suffered before he left India.

32. The Tribunal asked about the assertion in answer to question 92 that the applicant did not seek help in India.  The applicant said that was because “you don’t get help in India.  You make your own arrangements”.  As an example he said that he and his family might sometimes move out of the range of artillery for a while. 

33. The Tribunal noted that the answer to question 93 appears to be in a different handwriting.  The applicant agreed that his friend filled that out.  The applicant said that his friend filled it out for him because his English is not good.  He said that he was trying to say that he was stressed because of his circumstances in India and that he could not move to another part of the country because the government created a lot of trouble for Sikh people.

34. He also said that it was too difficult for them to move as they did not have enough money to buy a house in a safer part of the country.

35. The applicant was not able to say what had actually been written in the answer and the Tribunal decided not to continue to put the answers in the form to him as it was evident that he had not written them or had them explained to him.

36. The Tribunal asked the applicant to describe the harm or mistreatment he will suffer if he is sent back to India.

37. He said that it is like firing which means you have to move away and everything is destroyed and you lose things in your house. 

38. He said that the firing comes from across the border, in Pakistan.

39. He said that the border area is not heavily populated and that the houses are isolated.

40. The Tribunal noted that he appeared to have lived in the border area from about February 2013 until at least some time in 2015 when he went back to the Army, a period of about 2 years.  He agreed and said that he had had to move about 5 times during that 2 years.

41. He said that his wife, children, and parents were living in the same house and had to move as well.

42. He was asked if he fears any other mistreatment.  He said that Sikhs are mistreated because the Hindu’s want them to convert.

43. The applicant was asked further questions on this topic and ultimately said that nowhere in India is safe for Sikhs.

44. The Tribunal advised the applicant that the relevant DFAT report says that there were 20.8 million Sikhs in India in 2011[2]. 

    [2] DFAT Country Information Report India – December 2020 at 3.62.

45. He was advised that it says that even Sikhs who live outside the Punjab mostly do so safely and they integrate into the community.[3]

    [3] Ibid par. 3.67

46. He was advised that the report also says that Sikhs have a low level of discrimination by the government and by the community[4].

    [4] Ibid par. 3.68

47. The applicant did not accept those propositions.

48. The Tribunal discussed an affidavit that the applicant’s father had prepared for the application.  That affidavit was dated 30 July 2019.  It states that in the applicant’s home state, Sikhs have a reputation for supporting local Muslims in carrying out “anti national activities”.

49. It also states that youths in the local area are harassed by authorities and the applicant’s father expresses concern that his son might be subjected to the same treatment.

50. Further, he says that the village is near the Pakistani border and is prone to cross border firing which kills hundreds of people every year.

51. The applicant said in evidence that he had not been harassed by authorities but that Sikhs are prone to getting a reputation for saying wrong things and having little riots.  He said that local men were vulnerable to having false claims made against them by women.

52. He said he has not been harassed himself but he fears that it may in future if he returns.

53. He said that the authorities try to divide different groups and that powerful people bribe the police to bring cases against you which can lead to problems in the future, for example when your children want to marry.

54. He also said that he feared cross border firing which he said may mean loss of life.

55. The hearing took longer than had been anticipated so had to be adjourned at that point to resume on 7 April 2022.

56. At the resumed hearing the Tribunal took the opportunity to again go through the claims made in the application.

57. The applicant said that the risk he faces if he goes back is that he will lose his life.

58. The applicant repeated that when there is cross border firing, he and his family have to move to a safer place until the danger passes.  He said that they move to various safe places such as schools or Government property and stay for 2 or 3 days.

59. He said that when the firing starts everyone runs for their lives.

60. The applicant was asked about his answer at question 93.  That was a question about moving to another part of the country to seek safety.  The response was that the applicant was in severe depression and he thought to leave the country as soon as possible.

61. In evidence the applicant agreed saying that he would need money to relocate in India.

62. The Tribunal asked how much it would cost.  He estimated 1 crore (ten million) rupees, which he agreed is about $200,000.00 AUD.

63. The Tribunal suggested that this was an overstatement.  He said that it is not because he would need to buy land and build on it.

64. He said that the land he has now is worthless because it is on the border.

65. He further said that his army pension is 20,000 rupees per month.

66. The applicant was asked whether the Indian authorities would protect him if he returned to India.  He said that they have not done anything in the past and have been in power for over a year so there is no reason to think they will.

67. The applicant was asked about the further claims set out in his letter to the department of 11 August 2019 (which had been considered by the delegate in the decision of 10 September 2019).

68. In that letter the applicant set out that he worked as a soldier in the Indian Army from August 1994 to February 2013.  He said that he is from [Village 1], a village in the state of Jammu & Kashmir.  He says that [Village 1] is close to [a border area].

69. He claims that he and his family are targeted by Kashmiri militants and provides some country information in the form of newspaper articles.

70. He says that since his home state of Jammu and Kashmir lost its special status on 5 August 2019 due to the scrapping of Article 370, the Kashmiri militants have become more aggressive and violent.  He said that he remembers an incident in which members of the Indian Army were killed and believes that there is the possibility that it will happen again.

71. He says that he is free to travel to any part of India but says it will be difficult to do so because in most states the locals oppose migration from other states.

72. He also says that he is not a skilled person.

73. He says that he can live in other parts of India but it will be difficult to get a job and settle in.  He says that relocating would not be reasonable or easy.

74. The Tribunal has considered the newspaper articles the applicant provided.  One is from 2015 and refers to protests and tension in Jammu after a Sikh youth was shot by police.

75. Another article, this one from August 2019, refers to the scrapping of Article 370, says that the move will have repercussions far beyond J&K although it does not give a clear prediction of what they will be or where the impact will be at its strongest.

76. There is also an article from 13 February 2018 relating to an attack by two terrorists on a sentry post at an army camp at Domana which mentions a strike that killed seven people at a different military station in Jammu three days earlier.

77. The next article is from May 2003 and refers to the killing of 60 terrorists by the Indian Army in a remote area.

78. The next article is from May 2018 and refers to cross border shelling by Pakistani forces causing multiple injuries and requiring the evacuation of 40,000 people.

79. The next articles are from May 2018 and refer to cross border shelling.  The next article is undated and refers to the killing of 3 militants by the Indian Army.  The last one relates to Sikh protests in the Jammu region over police violence.

80. The applicant said that he has been in the military and that he has killed many terrorists and militants in J & K and that they can get information about officers and easily pick them up.  He offered no evidence in support of that.

81. He did say that someone in the army was given protected quarters because he had got 4 militants killed.  He said that he would not be entitled to the same protection because he is no longer He did not provide corroboration of that evidence.

82. On direct enquiry he said that he had never been threatened but he said that if the militants find out what village you are from, they can get you.

83. The applicant said that his wife, his [children] and his parents live in his house in J&K. 

84. He said that his wife originally came with him but the children stayed at home because they were young.  He said that his wife went back after 10 days because she needed to care for her unwell mother.

85. The Tribunal discussed the applicable DFAT report with the applicant[5].

    [5] DFAT Country Information Report India 10 December 2020

86. The Tribunal noted that the report says that Sikhs face a low level of discrimination[6].  The applicant said that does not reflect the reality.  The Tribunal explained that that was from a report prepared by the Australian government not the Indian government.

    [6] Ibid 3.68

87. The applicant did not provide any support for his evidence that it is not possible for Sikhs to survive for long.  The Tribunal finds that Sikhs face only a low level of discrimination.

88. The applicant said that he would not be able find work in any other part of India because he has no skills.  He said that all he could do is open a dairy and sell animal products.

89. He agreed that the family has land which is let and for which they receive rent.  He said that a farmer grows wheat and rice there, but he has not had a good harvest and has not paid his last rent.

90. He said that the farmer has been making a living from the land since 2017.  The applicant agreed that he could farm the land himself but said it would be difficult because it is sparse.

91. The Tribunal put to the applicant that the main reason he wants to come to Australia is because he is worried about being too poor in India.  The applicant replied that it is possible to manage as long as he is alive but if he is killed he will not be able to support his family.

1. The Tribunal enquired about his family remaining in an area he said was too dangerous to inhabit.  He said that they want to live somewhere else, but it is beyond their control.

2. In closing he said that he would like to return to India to visit his family but that if he did so he would go somewhere other than home.

   Does the applicant have a well-founded fear of persecution due to cross border shelling?

3. The applicant claims that if he is returned to India he will be in danger because the Pakistani army sometimes undertakes shelling of the area near the border where he and his family live.

4. The Tribunal accepts that there are occasions of cross border shelling in the area near Jammu and that the applicant’s family have evacuated on multiple occasions to avoid the danger.

5. The meaning of “well-founded fear of persecution” is set out at s 5J of the act, which is attached to this decision.

6. S 5J(1)(a) specifies that, to be relevant, the persecution that an applicant fears must be persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

7. The cross-border shelling does not comfortably fit within these definitions although it could be for reasons of nationality as the shelling by the Pakistani army is directed at Indian nationals.

8. However, s 5J(1)(c) provides that the real chance of persecution must relate to all areas of the receiving country (in this case, India).

100.   The Tribunal is satisfied that the cross-border shelling does not relate to all parts of India. The applicant’s evidence was that he and his family would like to relocate to an area of India away from the shelling, where they would not have to evacuate and where livestock are not at risk.  In other words, the applicant’s evidence is that there are parts of India that are safe and to which safe access is lawfully possible.

101.   The Tribunal has had regard to the majority decision in FCS17 V MHA (2020) 276 FCR 644 at [80] and [81] and to the applicant’s evidence. Although the applicant insisted that he would have difficulty finding work and being able to afford to buy a house, he gave evidence that his family own land capable of yielding crops or rental income, that he is in receipt of a military pension, and that he would be capable of engaging in work such as dairy farming.

102.   The Tribunal is satisfied that the cross-border shelling does not give rise to a real risk of relevant harm in all areas of India.

103.   Further, the Tribunal is not satisfied that the cross-border shelling is sufficient to render the applicant’s home uninhabitable noting that the applicant lived there for several years and that his family have lived there for at least 20 years.    

104.   Therefore, fear of the cross-border shelling does not satisfy the definition of a “well-founded fear of persecution”.

Does the applicant have a well-founded fear of persecution because of his past as a member of the Indian army?

105.   If the applicant will be liable to be attacked by terrorists or insurgents because of his past as a member of the Indian army, he may have a well-founded fear of persecution because of membership of a particular social group, being former army members.

106.   The applicant claimed that he fought in operations in J&K and that people know he killed militants and terrorists.

107.   He said that it is easy to get information about officers and would be easy for insurgents to identify him.

108.   He agreed that he did not have any evidence of that happening although he gave oral evidence that one man was moved to protected quarters because of the terrorists he had killed.

109.   The applicant agreed that he had lived in his home village in India for at least 2 years without being threatened.

110.   There is nothing to corroborate the applicant’s testimony that being a former member of the army gives rise to a real chance of harm.

111.   The Tribunal is not satisfied that there is any relevant risk and therefore any fear that the applicant holds of being persecuted because he was in the army is not a relevantly “well-founded fear” for the purposes of s 5J.

112.   Therefore the Tribunal is satisfied that the applicant is not a refugee because of a well-founded fear of persecution because of his past in the Indian army.

Does the applicant have a well founded fear of persecution because he is a Sikh?

113.   The applicant claims that Sikhs are relevantly persecuted in India.

114.   He supported this with an affidavit from his father.  That affidavit related poor treatment of Sikh youths in the Jammu area.

115.   The Tribunal is satisfied that the applicant is not a youth.

116.   The Tribunal discussed country information with the applicant that suggested there are 20 million Sikhs living in India who face a low level of discrimination in parts of India.  The applicant insisted that there is no part of India that is safe for Sikhs.

117.   The Tribunal is not satisfied that that is true.

118.   The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution in India because of being a Sikh.

Does the applicant have a well-founded fear of persecution because of the risk of the police being bribed by the wealthy?

119.   The applicant did not offer any corroborative evidence of this possibility.  The Tribunal is not satisfied that he has demonstrated a well-founded fear of persecution for this reason.

Conclusion regarding the applicant’s claims to be a refugee

120.   The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as contemplated by the Act and is not, therefore, a refugee.

Complementary Protection

121.   The applicant submits that he is a person in respect of whom Australia has protection obligations because there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm.  This is criterion contemplated at s 36(2)(aa) and is referred to as the “complementary protection criterion”.

122.   Significant harm is defined at ss (2A) which is attached to this decision.  It is modified by ss (2B) which is also attached.

123.   Harm that would otherwise be relevant is excluded under (2B) (a) if 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 applicant will suffer significant harm.

124.   The applicant does not make claims in relation to the complementary protection criterion that have not been considered under the refugee criterion.

125.   The “real risk” contemplated for the complementary protection criterion is the same as the “real chance” contemplated under the refugee criterion which the Tribunal has already considered.

126.   The Tribunal notes that the applicant has lived in his home village for some years and his family have lived there for at least 20 years including during the five years that the applicant has been in Australia.

127.   He and his family have avoided significant harm from cross-border shelling by evacuating from time to time.  There is no reason to expect that they will not continue to avoid such harm in the future.

128.   The evidence does not satisfy the Tribunal that there is a real risk of significant harm by reason of him being a former member of the army or a member of the Sikh religion.

129.   There is no evidence that the applicant will suffer relevant harm by reason of bribery of officials by wealthy locals.

130.   In any event, even the applicant does not dispute that there are areas of India in which he would be safe and the Tribunal, having regard to the applicant’s evidence about his income, his capacity to earn an income and his ownership of farming land is satisfied that it would be reasonable for him to relocate to such an area as contemplated by s 36 (2B) (a).

131.   The Tribunal is satisfied that Australia does not have protection obligations to the applicant under the complementary protection criterion.

132.   For the reasons given above, the Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

Mark O'Loughlin
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.

…