1930585 (Refugee) - [2024] ARTA 743

1930585 (REFUGEE) [2024] ARTA 743 (9 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1930585
Tribunal:General Member M. Moustafine
Date: 9December 2024

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

Statement made on 09 December 2024 at 2:20pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – agent for investment scheme – company unable to pay dividend or refund investments – reported, investigated and convicted, and threatened by investors – consent to decision without hearing – husband’s separate protection application with identical claims – both applications completed by agent with applicant and husband unaware of claims – inconsistent and different claims and evidence by husband in his hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 1958 (Cth), s 106(1), (3)
CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 Immigration and Multicultural Affairs on 2 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Malaysia, arrived in Australia [in] July 2019 as the holder of a Visitor visa and applied for a Protection visa on 13 July 2019. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either refugee or complementary protection criterion.
On 28 October 2019 the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of that decision.
On 9 April 2024, the applicant was invited to complete a Pre-hearing information form, updating her contact details, and providing any more information about her claims for protection and reasons why she was afraid to return to her home country, as well as information about any family members with a case before the AAT. In her response on 10 April 2024, the applicant indicated that her spouse, [Mr A], had a protection visa application before the AAT. She stated that there were ‘no additional reasons or claims for protection’.
On 9 September 2024 the applicant was invited to appear before the AAT on 22 October 2024 to give evidence and present arguments relating to the issues arising in her case. The hearing invitation letter noted that the AAT had considered the material before it but was unable to make a favourable decision on that information alone. The applicant was requested to provide all documents she intended to rely on to support her case ahead of the hearing.
The applicant responded on 16 September 2024 requesting a postponement of the hearing for one month after the birth of her baby. She stated that, although her due date was [Date], her doctor had advised that she may have to undergo a C-section in [Month]. The AAT requested the applicant to provide a medical certificate from her doctor to this effect.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the AAT), here forward ‘the Tribunal’. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
After receiving the relevant medical certificate from the applicant on 14 October 2024, the Tribunal agreed to postpone the hearing and on 29 October 2024, invited the applicant to attend a rescheduled hearing on 12 December 2024.
On 4 November 2024, the applicant emailed to the Tribunal a completed response to hearing notice form in which she indicated that she would not participate in the hearing and requested the Tribunal to make a decision on the papers without holding a hearing. The applicant did not provide any further evidence in support of her claims for protection.
On 13 November 2024, the Tribunal emailed the applicant an Invitation to Comment on Information which the Tribunal considered would, subject to her comments, be the reason, or a part of the reason, for affirming the decision under review. The applicant was asked to respond in writing by 27 November 2024 (paragraphs 23-24 below refer).
On 13 November 2024, the applicant submitted to the Tribunal another copy of her response to hearing notice form provided on 4 November 2024 indicating that she would not participate in the hearing and requesting the Tribunal to make a decision on the papers without holding a hearing.
On 14 November 2024 the Tribunal emailed the applicant asking her to advise if she intended to make any comment on the information sent to her on 13 November 2024, providing another copy of the Invitation to Comment on Information.
The applicant responded with an email on the same day stating:
I am writing to confirm that I do not want to participate in the hearing scheduled for 12 December 2024. As I mentioned in my previous emails on 4 November and 13 November, I kindly ask the Tribunal to make a decision based on the documents without holding a hearing.
No response to the Invitation to Comment on Information has been received.
The Tribunal considers that the applicant has been given every opportunity to participate in a hearing, to provide further information and evidence in support of her claims for protection and to comment on information which the Tribunal considered would, subject to her comment, be the reason, or a part of the reason, for affirming the decision under review. As the applicant has confirmed three times that she does not wish to participate in a hearing and requested that a decision be made on the papers, chosen not to provide any further information or evidence in support of her case or to provide comment on the adverse information put to her, the Tribunal has concluded that the applicant has provided information and evidence on everything she wanted to provide in support of her case. Under these circumstances, the Tribunal has assessed that it is reasonable to proceed to make a decision without holding a hearing and is satisfied that that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding, as required by ss 106(1) and (3) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
BACKGROUND
Evidence before the Department
According to her Protection visa application form, the applicant was born on [Date] in Perak, Malaysia, where she lived until she left for Australia. The applicant identified her ethnicity as Malaysian Chinese and her religion as Christian. She speaks, reads, and writes in Mandarin, English and Malay. She completed five years of high school in [Year] and derived her income from her own business. She stated that she had never married and did not identify any family members in Australia or overseas. The applicant stated that she left Malaysia [in] July 2019 legally on her Malaysian passport, a copy of which was submitted with her application.
The applicant’s protection claims as set out in her application form were as follows:
At early of Year 2017, I have managed my own business retail shop with selling [products]. One of the days, my friend [Mr B] come to visited me and selling high return investment plan with monthly return 8% margin. This investment product hold by one company name [Company]. At that time, I have made an investment almost RM 70,000 and continuously 6 month I have received the profit return from my friend. So, my friend asking to be the sales agent for promote the investment plan to my other friends. I have start to promote the investment plan to my relative and other friends. There are many closed deals, and all my customers received their profit return on time.
At March of Year 2019, the company name [Company]suddenly declare that temporary unable to payout monthly divide and unable refund the investment fund because their currency investment system hacked by someone and running lost USD 200 million within a night. All of my investors come to my business place and ask for refund their investment and harm me. Some of the investors have make a report to police department and the authority department have call me up for investigation. They lodge a report to the authorities and I'm the only one who was convicted. The investors come to my house to harm me and family member. One of the investors having "DATO SERI" title [Mr C] with very powerful network in government department, his bodyguard harmed me very badly and warning will kill me if I not to settle by refund all the money. The company [Company] personal in charge had called to warning that do not make any report to police department about this issue otherwise they will send gangster member to harm me. My family member advises me to leave a country for security purpose because some of the investor they come to my house with pistol and mention that if I cannot make a fully refund then they will kill me. I have report to police department, but there are no action or news reply from the police department.
For the security purpose, my family member advises me leaving home country so I entry Australia with visitor visa. Recently, I have online searching for Australia visa type and I found that the protection visa can help me. I believe that Australia is the safe place for me to start my new life.
The applicant claimed that she experienced harm in Malaysia as the investors came to her home and harmed her. She made a report to the police department, but the police were still not able to catch them. She did not try to move to another part of the country as her movement was very limited because the authorities could easily track her. The investors mentioned they would kill her with ‘showed pistol’, so she did not want to take a risk. The applicant claimed that if she returned to Malaysia, she may be harmed again, captured by the investors, or killed by them. The authorities would not provide her ‘any kind of protection as 24 hours protection’ and she was ‘unable to relocate to any other part of Malaysia because the investors had wide network in whole Malaysia state’ and she would certainly be caught by them if she returned there.
The applicant did not provide any supporting documents to the Department and was not invited to attend an interview.
On 2 October 2019, the delegate refused to grant the applicant a Protection visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either refugee or complementary protection criterion.
The delegate found that the applicant’s claimed fear of harm in Malaysia was not for reasons of her race, religion, nationality, political opinion, or membership of a particular social group, as set out in (5J(1)(a). He was therefore not satisfied that the applicant was owed protection under the refugee criteria as outlined in s36(2)(a) of the Act. Having considered country information regarding law enforcement, corruption and legal protection in Malaysia, as well as the personal circumstances of the applicant, the delegate was not satisfied that there were substantial grounds for believing that there was a real risk the applicant would suffer significant harm or was owed protection under the complementary protection criterion as outlined in s36(2)(aa) of the Act.
Evidence before the Tribunal
On 28 October 2019, the applicant applied to the AAT for a review of the Department’s decision, a copy of which she provided for the purpose of the review. No other written material or evidence was provided to the Tribunal in support of the applicant’s claims for protection.
When invited to provide any more information about her claims for protection and reasons why she was afraid to return to her home country the applicant responded on 10 April 2024 that there were ‘no additional reasons or claims for protection’.
The applicant declined the opportunity to appear at a hearing before the Tribunal to give evidence and present arguments requesting that the Tribunal make a decision on the papers without holding a hearing.
On 13 November 2024, the Tribunal wrote to the applicant as follows:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on certain information which we consider would, subject to your comments, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
1.The particulars of the information are: On 10 April 2024, you advised us that your spouse, [Mr A] ([DOB]) had a separate case before the Tribunal.
In his evidence before the Tribunal on 29 October 2024, [Mr A] stated that both of you came to Australia in July 2019 on tourist visas because you wanted to live and work here. An agent who you sought assistance to get Bridging visas suggested that you apply for Protection visas and filled in your application forms. Your spouse told the Tribunal that he was not aware of what the agent wrote in the form. The claims written in your application form are identical to those in the application form of your spouse.
2.Your spouse told the Tribunal at his hearing that you grew up in a ‘terrible environment’, where your drunken father beat you every day since you were a child and that he came to the house where you moved to live with your spouse to cause trouble until your spouse stopped him.
On the last occasion, two weeks before you left for Australia, your father allegedly slapped you on the face and verbally abused you. However, you never reported your father’s treatment of you to the police, nor received medical treatment for any injuries. Your spouse told the Tribunal that you do not want to return to Malaysia as you do not want to live in that environment and you are worried that your father will come after you and cause trouble, although you have not had contact with him for five years. He also told the Tribunal that you had previously not moved away from your village to another region in Malaysia because it would be unfamiliar to you, and you did not have money. He agreed, however, that now that you have been living and working in another country for five years and saved some money, a move to another region in Malaysia should not be so difficult.
The applicant was advised that:
This information is relevant to the review because the inconsistencies between the evidence submitted in your original application and the account of your spouse would be the reason or part of the reason for affirming the Department’s decision. In particular, the information at point 1. is relevant as it indicates that your application was made in the same way as your husband's, the claims were made by the agent and do not reflect your genuine claims. The information at point 2. about your circumstances in Malaysia is relevant because they do not support a conclusion that you face a real chance of serious harm or significant harm if you return to Malaysia in the reasonably foreseeable future.
If the Tribunal relies on this information in making its decision, it may conclude that your claims for protection, as made in your protection visa application, are not genuine and that you are not owed Australia’s protection obligations, under either the Refugee criterion or the Complementary Protection criterion, leading the Tribunal to affirm the decision under review.
The applicant was invited to comment on the information in writing by 27 November 2024.
As noted in paragraphs 12-14 above, the applicant did not respond to the invitation to comment on the information, including when asked specifically to advise if she intended to make any comment on this information. She repeatedly submitted her response to hearing notice indicating that she would not participate in the hearing and requesting the Tribunal to make a decision on the papers without holding a hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
On the basis of her Malaysian passport provided to the Department, and, in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and considers Malaysia as the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria, respectively.
Assessment of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
The applicant has claimed that she left Malaysia in 2019 for security purpose because some investors who had lost money in a failed high yield investment scheme run by the [Company], for which she was a sales agent, threatened to kill her if she did not refund all the money; and the [Company] chief warned that they would send gangsters to harm her if she reported to police.
As noted in paragraph 5 above, in inviting the applicant to participate in a hearing, the Tribunal noted that it was unable to make a favourable decision on the material before it alone. The applicant was also requested to provide all documents she intended to rely on to support her case. However, the applicant chose not to do so. In requesting the Tribunal to make a decision on the papers without holding a hearing, the applicant declined the opportunity to present further evidence and arguments relating to the issues arising in her case.
The applicant’s claims as set out in her protection visa application form were vague, lacking in detail and unsupported by evidence to substantiate key aspects of her claims for protection. This includes evidence of the existence of the [Company], the applicant’s engagement as its agent, the investment scheme she was promoting, particulars of the people she persuaded to invest in the scheme and of the high yield profits she and others made until the company allegedly collapsed in March 2019. Nor has the applicant provided evidence of a report made by some of the investors to police and her consequent investigation and conviction by the authorities; details of the incident when investors came to her home to harm her and her family, including when it took place, who was involved and the threats made; details of the harm caused by [Mr C]’s bodyguards; and details of her alleged report to police and their response. Further, the applicant has not provided any update on these matters, including the current status of her investments; and information about her current fears about returning to Malaysia.
On the limited material available to it, the Tribunal cannot be satisfied that the applicant invested money in [Company], was engaged as an agent to encourage other investors; nor that she and her ‘investors’ lost large amounts of money when [Company] stopped paying dividends in March 2019. Nor can the Tribunal be satisfied that some investors pursued the applicant, threatened to harm, or kill her or family members; or that [Mr C]’s bodyguards harmed her. The Tribunal is not satisfied that investors reported her to police, who subsequently investigated or convicted her of any offences; or that she made a report to police. Nor can the Tribunal be satisfied that investors have threatened to kill her unless she refunds all the money or that the [Company] chief threatened to send gangsters to harm her if she reported to police. The Tribunal is not satisfied on the available material that the applicant left Malaysia for the security purposes, as claimed. It follows that the Tribunal is not satisfied that the applicant genuinely fears for her safety if she returns to Malaysia now or in the reasonably foreseeable future, including that she may be harmed again, captured by disgruntled investors, or killed by them.
Importantly, the veracity and general credibility of the applicant’s evidence is put into question by inconsistencies between her evidence and that of her husband at his Tribunal hearing on 29 October 2024. According to her husband’s account, both he and the applicant came to Australia in July 2019 because they wanted to live and work here. They sought assistance from an agent who suggested that they apply for Protection visas and filled in their application forms. The applicant’s husband said he was not aware of the claims written in his form by the agent. These claims were identical to those in the applicant’s application form.
As noted in paragraphs 25 and 26 above, the Tribunal drew this information to the applicant’s attention in its letter on 13 November 2024, noting that it was relevant to the review because it indicated that her application was made in the same way as her husband's, the claims were made by the agent and did not reflect her genuine claims.
The Tribunal further put to the applicant that, by her husband’s account, the reason she did not want to return to Malaysia was that she was worried that her drunken father, who had beaten and verbally abused her in the past, would come after her and cause trouble, although she had not had contact with him for five years. Her husband also indicated that, now that the applicant had been living and working in another country for five years and saved some money, a move to another region in Malaysia should not be so difficult. This information about the applicant’s circumstances in Malaysia was relevant because it did not support a conclusion that she faced a real chance of serious or significant harm if she returned to Malaysia in the reasonably foreseeable future.
The Tribunal invited the applicant’s comment on the above information in writing by 27 November 2024, noting that if the Tribunal relied on this information in making its decision, it may conclude that her claims for protection, as made in her protection visa application, were not genuine and that she was not owed Australia’s protection obligations, under either the Refugee criterion or the Complementary Protection criterion, leading the Tribunal to affirm the decision under review.
The applicant has not responded to the invitation to comment on the adverse information.
Having considered all the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to Malaysia for any other reason in s5J(1)(a) of the Act, now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution in Malaysia.
For the same reasons, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the reasons claimed or any other reason.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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
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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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