1932638 (REFUGEE)
[2024] ARTA 172
•30 October 2024
1932638 (REFUGEE) [2024] ARTA 172 (30 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1932638
Tribunal:General Member D Hughes
Date:30 October 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 30 October 2024 at 1:33pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – conversion to Islam – marriage to a Malay woman – race – ethnic Chinese – property dispute with wife – economic conditions – credibility issues – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 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, applied for the visa on 3 August 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criteria for grant of a protection visa.
The applicant appeared before the Tribunal on 26 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (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.
BACKGROUND
The applicant is a national of Malaysia. He arrived in Australia [in] May 2019 as a visitor.
Evidence before the Department
The applicant applied for a protection visa in August 2019. A copy of the biodata page from his Malaysian passport was provided. It was issued in February 2019. The applicant’s protection claims related to economic hardship.
The applicant was not interviewed by the Department.
In their decision to refuse to grant the applicant a protection visa, the delegate had regard to the economic situation in Malaysia. They were not satisfied the harm the applicant feared related to any of the reasons in s 5J(1)(a) of the Act. The delegate was also not satisfied the applicant would face harm amounting to significant harm under complementary protection.
Evidence before the Tribunal
The applicant lodged his review application on 16 November 2019. He provided a copy of the delegate’s decision dated 23 October 2019.
Hearings
The applicant was initially invited to a hearing on 6 June 2024. The applicant did not appear at the hearing. On 7 June 2024, I dismissed the application under the former s 426A(1)(b) of the Act.
On 13 June 2024, the applicant wrote to the Tribunal requesting he be given another chance stating he was suffering from ‘either flu or covid’ for two weeks. On 15 June 2024, he again wrote to the Tribunal requesting the Tribunal consider his circumstances and reiterating he would be in danger if he returned to Malaysia.
On 17 June 2024, I reinstated the review application under the former s 426A(1C)(a) of the Migration Act. I accepted he could not attend the hearing due to illness.
A further hearing was scheduled for 25 June 2024, however the Tribunal was unable to conduct the hearing due to circumstances beyond our control.
The applicant appeared before the Tribunal at a hearing on 26 July 2024. The hearing was assisted by an interpreter in the Mandarin languages.
Following the hearing, the applicant provided further identity documents in support of his claims. The first is a form of marriage card. It indicates the date of Islamic marriage ([in] July 2013) and refers to the applicant and his wife. The second appears to be a ‘conversion to Islamic certification card,’ which indicates the applicant changed his name and converted to Islam [in] November 2012. The third document is a separate marriage certificate for the applicants indicating they were married [in] March 2002. It indicates that his wife ([Wife A]) held a passport of Indonesia and her religion at the time was Christianity.
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 before the Tribunal is whether the applicant meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided the Department with a copy of the biodata page from his Malaysian passport. There are no apparent concerns with the applicant’s nationality. The Tribunal is satisfied that the applicant is a national of Malaysia.
The applicant claims he married an Indonesian citizen, however there is nothing before the Tribunal to suggest he has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before me, I am satisfied s 36(3) of the Act does not apply. I am satisfied Malaysia is his receiving country and have assessed his claims against that country
In his protection visa application form, the applicant relevantly indicated his ethnicity as Malaysian Chinese, his religion as Islam, and he claimed to have never married.
Claims related to economic position
In the visa application, the applicant indicated he left Malaysia because of financial hardship and economic/political instability in the country. He claimed not to have experienced harm in Malaysia, nor did he indicate he would be harmed or mistreated on return to the country. The applicant contended that he worked odd jobs, mostly in construction and hard labour.
At the hearing, the applicant indicated he had worked in construction in his youth, but he had then run a [specified business]. His evidence was that the business went okay, but he claims he left the industry after his wife reported him to the police in 2012. He then opened a [business 1] which he ran for around four years. He claims he did not work in the year before he left Malaysia.
The applicant later discussed his conflict with his wife over his property in Malaysia. He claimed he gave his wife his property – which she lives in with his family. He said they were near divorce, and he gave her the property, his shop and his car. He indicated he still has two properties (although he later indicated these were under his children’s names). He wants a divorce, but his wife wants the other properties.
When I put to him that his claims in the visa application related to financial hardship, he indicated the claims on this basis were not correct. He later claimed he is afraid he cannot survive, but that related to his religious claims.
The applicant’s evidence is not suggestive of any economic hardship. While he contended he did not work in the year before he left Malaysia, it appears the applicant has owned multiple businesses, a shop, and several properties.
The applicant’s evidence also does not suggest any claimed conversion to Islam or name change – if those things did occur – had any impact on his economic situation in the country. I note that he claimed to have converted to Islam in or about 2012, yet he also owned and ran a [business 1] after that time.
I find the applicant has had a strong economic situation in Malaysia. While he has been out of the country for around five years, I have no reason to consider he would not again be in a financially stable position if he returned to the country and able to find work or run a business.
In all the circumstances, I find there is no real chance of the applicant facing harm, let alone serious harm, for reasons related to his economic situation, if he returned to Malaysia now or in the reasonably foreseeable future. I also find there is no real risk of the applicant facing harm, or significant harm, for these reasons, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia.
Claims related to religion and marriage
In his submission in response to the initial dismissal, the applicant said he had been married for 7 or 8 years. He claimed to have adapted to the culture in Australia and he could not imagine living in Malaysia. He said Chinese people (including his family) do not like him because he changed his name to an Islamic name and married a Malay girl. He is sad and has nowhere to go. In the hearing, the applicant claimed to fear harm in relation to his religious profile – specifically the changing of his name to a Muslim name following pressure from his wife, and a later claim that he converted to Islam.
For the reasons that follow, the Tribunal does not accept the applicant’s claims to fear harm in Malaysia for these reasons are reliable or credible.
Firstly, the Tribunal does not consider the applicant has been consistent about his religious background or related claims for protection.
In his 2019 protection visa application, the applicant indicated he was a Muslim. As noted above, he advanced claims relating to economic hardship, with reference to the economic and political instability in Malaysia. He indicated he had not experienced harm and he did not consider he would face harm or mistreatment on return to Malaysia. He makes no reference to fearing harm related to his religious profile or in connection with his marriage.
In his 13 June 2024 submission to the Tribunal, he referred to his extended period living in Australia, where he had adapted to the culture and he could not imagine living in Malaysia again. He said Chinese people, including his family, did not like him because he married a Malay girl and changed his name to an Islamic name, which made him sad.
In the Tribunal hearing, the applicant claimed that after his wife became a Malaysian citizen, she wanted him to convert to Islam. He said his wife had changed his name (to an Islamic name). However, he had not converted to Islam. He claimed she threatened to report him to the police for arrest if he did not follow her religion. When asked why she would report him to the police, he said because he did not want to be a Muslim. He wanted to divorce her.
In the early stages of the hearing, I took care to clarify whether the applicant had in fact converted to Islam. He said he had not converted and was not a Muslim. I asked him if he was a Muslim and whether he had ever been a Muslim, he confirmed he was not. When I asked why he would change his name, he said it was a compromise and his wife had changed it. I noted his visa application indicated he was a Muslim, he said this was incorrect. He said he was a Buddhist.
At multiple different points in the hearing, the applicant gave evidence that he was not a Muslim and had not converted. He discussed his concerns because of his name, and disapproval or discrimination he faced or would face from Malays (Muslims) and Buddhists (ethnic Chinese) because of his name. Later in the hearing, he referred to the fact that he could not attend Chinese restaurants, because they served pork and alcohol and he feared arrest. When I put to him that he was not a Muslim, he said his identity documentation indicates he is a Muslim. Later in the hearing, when discussing this issue he claimed for the first time that he had in fact converted to Islam.
Following the hearing, the applicant provided documentation that would appear to suggest that the applicant had converted to in 2012 (or at least has been recorded as doing so), including a conversion card. He also provided the initial marriage certificate from 2002 that includes his previous non-Islamic name ([specified]) and his wife ([Wife A]) who is listed as Christian. He also included an Islamic marriage card and marriage card, indicating a further Islamic marriage between the applicant (using his Islamic name) and his wife ([Wife A]) in 2013.
I have considerable concerns with the applicant’s inconsistent evidence about his religious profile. He gave clear and unequivocal evidence that he had changed his name, and also that he had not converted to Islam and was not and had never been a Muslim. I was left in little doubt about his evidence, however he later varied his evidence and claimed that he was a Muslim.
His documentary evidence would appear to indicate he is a Muslim. When I asked why he did not provide the documentation earlier, he indicated he was unable to use email and a friend assisted him. However, the applicant had previously provided email submissions to the Tribunal, including his response to the initial dismissal. I do not accept that explanation.
While those documents do appear on their face to be credible, his evidence across time raises significant doubts for the Tribunal as to whether he is a Muslim, whether he converted to Islam or changed his name, whether he was forced to convert or change his name, and/or whether he has experienced or fears any harm or mistreatment for these reasons.
Secondly, the applicant has not been consistent in his evidence about his wife. In his visa application, he indicated he was not married. In his 13 June 2024 submission to the Tribunal, he indicated he had married a Malay woman. At the hearing, he claimed his wife was Indonesian. He indicated she was a Muslim, but when they were married, she believed in Buddhism and prayed to the Buddhist gods with him. He claimed she went back to Islam and pressured him to convert. Following the hearing, the applicant’s initial marriage certificate (from 2002) confirms she was Indonesian. It also indicates his wife was not a Muslim at the time they married in 2002 but she was in fact a Christian.
The applicant’s claims as they related to his wife were also not consistent. He made no reference to his wife in his visa application or that he had any concerns in relation to her. In his response to the dismissal, he does refer to people disapproving of his wife because she was Malay, but he does not indicate any fears or concerns in relation to her specifically. In the hearing, he discussed that he wishes to divorce her and that they disputed over his properties, some of which he had given her and others which she wanted. He also indicated she threatened to report him to the police if he did not convert and follow Islam in 2012. Towards the end of the hearing, he said that if he tries to divorce her she will report to the police that he had hit her. He also raised for the first time that she previously done this and that he was imprisoned for 10 days. When I put to him that his visa application does not refer to any such issues, he said he applied through an agent, and he just followed their advice on the application.
I found the applicant’s evidence about his concerns with his wife to be inconsistent and unreliable. I have considered his contentions about the visa application. I consider the omission of his marriage and concerns related to his wife from that form is a serious concern, even if he was assisted by another person in making his application. There are multiple components within that form relating to family, past claims and police interactions, however his answers in that form to not match these later claims. In any event, I do not consider the initial omission of these matters from his visa application resolves the question of his varying and conflicting evidence about his wife over time, including in his written submissions and oral evidence at the hearing. His evidence on these matters raises serious concerns for the Tribunal about the reliability of these claims.
Thirdly, the applicant was also not consistent about his claims to fear discrimination or disapproval or harm from ethnic Chinese Malaysians, including his family.
While he does indicate he is a Muslim, the applicant made no such claims in his protection visa application. As noted above, his claims at that time related to economic hardship. In this regard, I have again weighed his contentions about the preparation of his visa application.
In his written response to the Tribunal’s dismissal on 13 June 2024, the applicant said that Chinese people do not like him anymore, because he married a Malay girl and changed his name to an Islamic name. He did not indicate he had converted to Islam. He said that his family are all Chinese and do not like him much, and that he is sad and has nowhere to go.
At the hearing, the applicant indicated he was in daily contact with his parents. He confirmed they were all well and had come to Australia in July of last year. He had borrowed money from his family to fund his travels to Australia. He initially indicated he had no family in Australia, before confirming his younger brother lived near him in Melbourne and that he had supported his brother.
Towards the end of the hearing, when asked if he had any fears on return to Malaysia, he said he fears the Buddhist side of his family in Malaysia will not accept him. The only specific family he claimed to have issues with was his wife. He also contended that Malaysian people do not like people who convert to Islam.
The applicant’s oral evidence appears to indicate that his immediate family do not have any serious concerns about his claims to have changed his name or religion. Far from his claim that his family do not like him and he has nowhere to go, it appears he has family in both Malaysia and Australia that he is in close contact with. He did not identify any specific family members he has concerns with.
I do not consider the applicant has been consistent in his evidence about the disapproval of his ethnic Chinese/Buddhist family members in Malaysia or elsewhere. This raises concerns for me whether he had any such fears, and raises further concerns for me about the reliability of these claims and his protection claims more generally.
More broadly, it is not clear to me that the applicant has any credible fears in returning to Malaysia. He refers broadly to discrimination and disapproval (or non-acceptance) he may face from Malays and Chinese/Buddhist family members, and his concerns about being caught in a Chinese restaurant by the police. However, if his evidence is accepted, I find it significant that he converted to Islam in 2012 and left Malaysia seven years later in 2019. He provided no specific examples of harm he faced over this period. In fact, when I asked whether he faced harm in the past, he said no particular harm.
The applicant was able to start multiple businesses in Malaysia, and owned multiple properties. If he did face issues because he changed his name or converted to Islam, it did not prevent him from starting a [business 1] or owning property, having a family or making a living. In terms of his own family, his evidence was that he was still in contact with his family and lived near his brother in Melbourne and he had supported him, and his family supported him in his initial travels to Australia. I do not consider his past experiences are consistent with his current claims.
Assessment
I have a number of concerns with the applicant’s protection claims and evidence across time. Looking at all the evidence before me, and in view of my concerns as discussed above, I am not satisfied the applicant’s oral and written protection claims are credible or reliable.
While I have serious concerns with his evidence, his documentary evidence relating to his identity, conversion and Islamic marriage appears to be credible. There is nothing before me to suggest his Malaysian passport is not genuine. I find it significant that it reflects his claimed Islamic name. Based on the other documents, I accept and find that the applicant changed his name and converted to Islam. I find that his wife also converted to Islam and that they re-married under Islamic law in 2013.
Beyond that, I do not accept his claims as they relate to his wife, his religion or his marriage. I do not accept there has been any breakdown in his relationship, that his wife forced him to convert to Islam, that she has threatened to report him to the police, or that she made a false allegation against him and he was detained. I do not accept he intends to divorce her or that he has given her some of his property. It is not clear to me why he and his wife converted to Islam and remarried, but it is clear to me that his evidence and claims relating to his wife are not reliable.
I am not satisfied there is a real chance of the applicant facing harm or serious harm from his wife or anyone else, for any of these reasons, if he returned to Malaysia now or in the reasonably foreseeable future.
I have considered the applicant’s claims relating to his conversion. The country advice before me does indicate some issues between ethnic Chinese and Malays in Malaysia, principally manifesting in low level discrimination in favour of Malays in terms of business, education and work in the civil service.[1]
[1] DFAT, Country Information Report – Malaysia, 24 June 2024
There is also some indication of tensions between the Islamic majority and authorities and other religious minorities in Malaysia, but DFAT assesses Buddhists are generally not at risk of discrimination. While the report suggests there are risks for converts away from Islam, the advice does not suggest that converts to Islam face issues in Malaysia, in fact conversion to Islam is often incentivised in the country. In terms of Islam more broadly, advice from DFAT indicates that many Muslims in Malaysia are non-observant and that Muslims can be secular, eating during Ramadhan, drinking alcohol and not attending mosque. The advice does not suggest he would face discrimination or harm for being a Muslim.[2]
[2] DFAT, Country Information Report – Malaysia, 24 June 2024
Given the concerns discussed above, and having regard to the country advice before me, I do not accept the applicant has faced disapproval, discrimination or any harm for reasons of his change of name, Islamic marriage or conversion to Islam, whether from his family, Buddhists/Chinese, or Malay Muslims. The applicant has been able to work, open businesses and acquire properties in Malaysia. It is clear from the applicant’s evidence that he maintains the support of his family.
I am not satisfied and do not accept any family members or Buddhists/Chinese have rejected the applicant because of his conversion, marriage or name change, or that this would occur in the future. I also am not satisfied and do not accept the applicant faced harm or discrimination or disapproval from Malay Muslims for any of these reasons.
In terms of his practice of Islam, as I do not accept that he was forced to convert to Islam, and given my concerns with the reliability of his evidence, I am not satisfied and do not accept that he intends to visit Chinese restaurants and eat pork or drink alcohol or that he otherwise fears discrimination or harm or arrest or penalty for these reasons, or his practice of Islam more generally. I do not consider he would seek to change his name or religion, or have any other profile that might put him at risk of harm. I do not consider his claims in this regard are credible or reliable.
The applicant has not put information or evidence before me to suggest he would face discrimination or harm from Buddhists, ethnic Chinese, Malays, or Muslims for reasons related to his name change and conversion to Islam. I am not satisfied there is a real chance or risk he would face harm or discrimination for any of these reasons, or that he would be unable to survive or make a living for any of these reasons if he returned to Malaysia now or in the reasonably foreseeable future.
I accept the applicant has adapted to living in Australia and it may be difficult for him to imagine living in Malaysia again. However, when having regard to his claims and evidence, and the advice before me, I find there is no real chance of the applicant facing harm or serious harm for any of these reasons, if he returned to Malaysia, now or in the reasonably foreseeable future. Having regard to the same considerations, I also find there is no real risk of the applicant facing harm or significant harm for any of these reasons, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia.
Conclusion
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). The Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The applicant claimed he has a brother in Australia, however there is no contention or evidence before the Tribunal that suggests that he satisfies s 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date of hearing: 26 July 2024
Representative for the Applicant: n/a
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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