2007379 (Refugee) - [2024] AATA 4390

2007379 (Refugee) [2024] AATA 4390 (10 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Malintha De Mel (MARN: 1460611)
CASE NUMBER: 2007379

COUNTRY OF REFERENCE: Mauritius
MEMBER:Nicole Burns
DATE:10 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 September 2024 at 9:31am

CATCHWORDS
REFUGEE – protection visa – Mauritius – particular social group – divorce – threats from family members – employment – fear of killing – separation from family – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2
CASES
AWC21 v MHA [2022] FCA 1568
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FCA 751
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man from Mauritius. He last came to Australia [in] August 2011 holding a student visa. He applied for the protection visa on 30 March 2015.
The applicant appeared before the Tribunal on 18 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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–5LA, 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.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection as a refugee or under the complementary protection provisions as set out above. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In summary the applicant claims to fear persecution on return to Mauritius at the hands of his family members, in particular his brother, because of his marriage breakdown, and the fact he failed to complete his studies in Australia. He claims his family want him to repay money they gave him and his former wife to live in Australia and fears serious harm if he does not. He also claims he will struggle to get a job on return to Mauritius due to his limited work skills and having no family support there.
The applicant set out his background and protection claims initially in his protection visa application form and a statutory declaration dated 27 March 2015 provided to the Department. He describes the inception and ultimately breakdown of his marriage with his ex-wife, [Wife A], whom he married in May 2008 in Mauritius and separated from in October 2011 (in Australia). She left him and re-partnered. [Wife A] had a daughter ([Child A]) with her new partner, who was born in [specified year]. The applicant states he did not tell his family in Mauritius of his marriage breakdown until his student visa (attached to [Wife A’s] student visa) was cancelled in February 2015. His brother ([Brother A]) told him he needed to repay the money their family had sent the applicant in Australia and threatened if not, he would arrange for his ex-wife to become a prostitute and to sell her daughter. The applicant states he has brought shame upon his family and fears serious harm from his brother in particular on return. He also does not have money or skills to financially support himself if he has to return to Mauritius.
At hearing the applicant told the Tribunal he and [Wife A] divorced sometime in 2019 or 2020 and [Wife A] lived with her then partner and daughter in [Australia]. However they have since recommenced their relationship and resumed living together again in mid-2022, along with her now [age]-year-old daughter ([Child A]), who is an Australian citizen. [Child A’s] father had been deported to [Country 1] allegedly because of family violence (the applicant did not elaborate). He said they plan to marry (again) and arrange for the applicant to become [Child A’s] legal guardian. The applicant said [Wife A] is an Australian citizen but was unsure how that came about, except to speculate her previous partner may have sponsored her. Presently she works part time in [a specified induatry]. The applicant does not work due to having no work rights. He helps care for [Child A].
The applicant said he applied for protection in 2015 because of death threats he received from his brother ([Brother A]) and father after he told them (sometime in 2013 or 2014) about the circumstances of his marriage breakdown. They blamed him for bringing shame to their family and for wasting money his father had sent him (around AUD[amount] in total) to study in Australia, which [Brother A] considered part of his inheritance. [Brother A] threatened the applicant several times over the telephone that he would arrange to have the applicant, [Wife A] and [Child A] killed if they returned to Mauritius. After receiving threats for about a year the applicant changed his phone number and has not heard from [Brother A] since. He understands presently [Brother A] lives in [Town 1] in Mauritius and works for the Militant Socialist Movement (MSM) political party currently in government, helping out with their campaigns. The applicant said he remains fearful of [Brother A] if he has to return to Mauritius, because their relationship has not mended. He added that [Brother A] has more political power than before, knows more people, and might still want the money his father loaned the applicant to be returned.
The applicant said he spoke to [another] brother, [Brother B], around three years ago, who prefers to stay out of the matter. He re-established phone contact with his father around a year ago and told him he was back together with [Wife A]. His father forgave him and said now that they were happy to forget about what had happened.
The applicant said his father expects him to repay the money he gave him to come to Australia at some stage, but only when he is able to.
The applicant said he reported [Brother A’s] threats to the police in their home area over the telephone when he first received them and explained their situation. The police said they would look into the matter and call him back, but never did. He heard subsequently from a neighbour (or ‘someone’) that police had visited his parents’ house one time, when his father was home.
FINDINGS ABOUT THE APPLICANT’S PAST EXPERIENCES AND FUTURE FEARS
Having regard to the evidence before it, including the applicant’s oral and written evidence, the Tribunal makes the following findings with respect to his protection claims and whether his fears of persecution on return to Mauritius are well‑founded.
Fear of persecution due to his marriage breakdown
The Tribunal has considered if the applicant faces a well-founded fear of persecution from his family, relatives, or anyone else on return to Mauritius due to his marriage breakdown.
The Tribunal accepts the applicant married [Wife A] at a civil status office in [Village 1], Mauritius [in] May 2008, as indicated in a copy of their marriage certificate provided. It accepts based on the applicant’s oral evidence at hearing that they separated in October 2011, and divorced in around 2019 or 2020. It accepts [Wife A] had a daughter with another man, who was born in [year]. The Tribunal also accepts the applicant and [Wife A] have since re-established their relationship, and presently live together with [Wife A’s] [age]-year-old daughter, [Child A]. It accepts they plan to marry (again) shortly.
The Tribunal accepts the applicant helps care for [Child A] whilst [Wife A] works.
The Tribunal also accepts the applicant’s oral evidence that his father is aware of the resumption of his relationship with [Wife A] and is supportive.
The Tribunal has considered the applicant’s claims that he received threats – including death threats – from his father and brother [Brother A] in the past who were unhappy with his marriage breakdown. [Brother A] also allegedly threatened to arrange to have [Wife A] and [Child A] killed if they returned to Mauritius, along with the applicant, and/or sold into prostitution.
As discussed at hearing, the Tribunal has several concerns with the applicant’s evidence in this regard, including due to inconsistencies in his evidence about key matters provided to the Department and Tribunal. For example:
1. With respect to when he told his family about his marriage breakdown and the context in which this purportedly occurred. At the Department stage he indicated he told his family when his student visa was cancelled (and he faced the possibility of having to return to Mauritius) in February 2015. However at hearing he said he told his family in around 2013/2014 but was not able to explain why he decided to tell them then, apart from asserting in general terms that he had to tell them at some stage. He did not mention anything about his student visa cancellation.
2. At hearing the applicant said he told his parents about his marriage breakdown and that his father then told his brother, who then threatened him. However in his statutory declaration provided to the Department the applicant states he told his brother initially.
3. At hearing the applicant said he reported the threats from his brother to the police in Mauritius from Australia in 2014; the police said they would look into it and call him back; and a neighbour said they saw police visit his parents’ home. However at his interview with the delegate (on 20 March 2020) – as indicated in the delegate’s decision record[1] – he said the police told him to ignore the threats.
4. At the Tribunal hearing the applicant did not indicate his [Brother B] had threatened him and said [Brother B] had wanted to keep out of it. However at his interview with the delegate (as recorded in the delegate’s decision record) the applicant said [both these] brothers and his father had threatened him in relation to his marriage breakdown.
The Tribunal also notes an internal inconsistency with the applicant’s claims that on the one hand his brother wants to seriously harm him – possibly kill him – but on the other hand also wants him to return the money he owes their father.
The Tribunal accepts the applicant’s parents and [Brother A] may have been unhappy when they found out his marriage had broken down and may have expressed their disappointment verbally to him. However given these concerns, the Tribunal does not accept the applicant’s father or brother ever threatened the applicant, [Wife A] or [Child A], including with death, selling [Wife A] into prostitution, or selling [Child A] if they returned to Mauritius in the past as claimed.
It follows that the Tribunal does not accept the applicant reported these threats to the police in Mauritius from Australia as claimed.
Given the Tribunal does not accept the applicant was threatened by any of his immediate family members in the past in the context of his marriage breakdown, and he has resumed his relationship with [Wife A] and plans to remarry her shortly, and his oral evidence that his father has forgiven him, it finds he does not face a real chance of serious harm from his father, or any other relatives on return to Mauritius in the foreseeable future due to his marriage breakdown.
At hearing the applicant said he remains fearful of his brother [Brother A], who is upset that he squandered some of their inheritance and they are yet to mend their relationship. He claims they are estranged, having not spoken for about 10 years. He also claims [Brother A] is politically powerful, working for the political party currently in government.
For the reasons above the Tribunal does not accept the applicant’s claims to have received death threats from [Brother A], or that [Brother A] threatened to force [Wife A] into prostitution or sell her daughter if they returned to Mauritius. It accepts he may not have had any contact with his brother for around 10 years, but it remains unclear why. The Tribunal does not find the applicant faces a real chance of serious harm from [Brother A] on return to Mauritius, even if he works for MSM in Mauritius helping out with campaigns as claimed.
The Tribunal accepts the applicant’s father gave him money to study and live in Australia, of around AUD[amount], which he has not yet repaid. It accepts his father may have asked him to repay some of the money when he found out about his marriage breakdown. Nonetheless based on the applicant’s oral evidence at hearing that he can repay the money whenever he is able to and that he has re-established contact with his father, who is happy he is back together with [Wife A], the Tribunal does not accept the applicant faces a real chance of serious harm from his father (or brother, or anyone else) due to outstanding debts to his father. It accepts his father may want him to repay him at some stage, when able to, but does not accept he will seriously harm the applicant if he does not or takes a while to do so.
For these reasons the Tribunal finds the applicant does not face a real chance of serious harm from any family members on return to Mauritius because of his marriage broke down, because his wife had a child with someone else, or due to receiving money from his father to study and live in Australia, which he has not yet repaid. His fears of persecution on these bases are not well-founded.
Although not an express claim, the Tribunal has also considered if the applicant faces a real chance of serious harm from any of [Wife A’s] relatives who live in Mauritius. He has not claimed to have been threatened or harmed by any of her relatives in Mauritius in the past in the context of their marriage breakdown (or for any other reason). Further the Tribunal notes his evidence at hearing was that they have resumed their relationship and [Wife A’s] parents are aware and supportive. For these reasons the Tribunal does not accept the applicant faces a real chance of serious harm from any of [Wife A’s] relatives on return to Mauritius for any reason.
The Tribunal also does not accept the applicant faces a real chance of serious harm from the community or the authorities on return to Mauritius based on his divorce. As noted by the delegate in their decision record, country information indicates that divorce is legal in Mauritius and occurs[2]. Whilst there may be some level of community disapproval and shame associated with divorce, there is nothing before the Tribunal to indicate that such disapproval or discrimination would amount to persecution. Further the Tribunal notes the applicant plans to remarry shortly and is therefore likely to return to Mauritius as a married man, not a divorcee. Even if his earlier divorce in Australia became known, the Tribunal is not satisfied this would result in a real chance of serious harm from anyone.
[2] World Population Review, ‘Divorce rates by country 2024’.
Separation from partner and her daughter
The Tribunal has also considered if the applicant had to return to Mauritius without [Wife A] and her daughter whether the separation itself would amount to serious harm. At hearing the applicant said he is not clear if his partner and [Child A] would return with him if his review was unsuccessful but said ‘probably not’. The Tribunal accepts if they had to separate it would be emotionally difficult for the applicant, whom it accepts helps care for [Child A] and with whom he has a bond. However being separated from a partner and/or child (including a stepchild) does not give rise to a well-founded fear of persecution as defined in s 5J of the Act, as the fear of persecution is not for one or more reasons set out in s 5J(a) and does not involve systematic and discriminatory conduct as required by s 5J(4)(c).
Financial concerns
The Tribunal has also considered the applicant’s claims to fear being unable to financially support himself if he has to return to Mauritius. In his application form he states that he does not have money or skills to do so and at hearing he said he is worried because he has not completed his studies and does not have specific skills. He thinks he could work as a labourer there but not much else.
The Tribunal accepts the applicant holds concerns about being able to obtain employment and financially support himself on return to Mauritius, particularly given the significant period of time he has been away from his country. It therefore might be difficult for him to get work on return, at least initially. Nonetheless the applicant’s evidence is that he completed high school in Mauritius, worked on his father’s small plantation[farm] for around a year, and has completed certificates in [subjects] there (copies of his certificates were provided to the Department). In Australia he started [a qualification] at [College 1] but withdrew from the course after completing two to three years and became dependent on his wife’s visa. He has undertaken several cleaning jobs here until the cancellation of his student visa in 2015 and since then has been supported by friends, his partner, and financial remittances from home. As noted, the applicant has reconciled with his parents and therefore the Tribunal is satisfied they would be able to provide some support to him at least initially on return, such as a place to stay. At hearing the applicant told the Tribunal his parents live in a house they own in [Town 2], and receive a pension linked to his father’s past work [specified].

Further, the applicant has not claimed and there is no indication that he would be denied employment on return to Mauritius for any reason.
Given these considerations, including the applicant’s work history and family support as discussed above, the Tribunal is satisfied he would be able to subsist on return to Mauritius, even taking into account the significant length of time he has been away.
The Tribunal finds there is no real chance the applicant would suffer significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s 5J(5)(d)–(f) of the Act), for one or more of the reasons mentioned at s 5J(1)(a) of the Act, should he return to Mauritius.
For these reasons the Tribunal finds that the applicant does not face a real chance of serious harm on return to Mauritius for any refugee reason in the reasonably foreseeable future and that his fears of persecution are not well-founded.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J of the Act. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).
COMPLEMENTARY PROTECTION
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Mauritius and therefore finds that Mauritius is the ‘receiving country’ for the purposes of s 5(1).
For the reasons set out earlier, the Tribunal does not accept there to be a real chance that the applicant will suffer serious harm if he returns to Mauritius now or in the foreseeable future from his father, brother or anyone else as a result of his marriage breakdown; as a divorcee; or based on economic hardship. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone for these reasons as a necessary and foreseeable consequence of him being removed from Australia to Mauritius.
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal accepts the applicant is concerned about the possibility of being separated from his partner and her daughter if he has to return to Mauritius. The Tribunal accepts that he would find this emotionally difficult. Nonetheless court authorities – specifically judgments in SZRSN v MIAC and GLD18 v MHA – confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A).[4]
[4] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]; AWC21 v MHA [2022] FCA 1568 at [29].
For these reasons 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 Mauritius there is a real risk he will suffer significant harm.
Other matters
At hearing the representative requested the Tribunal adjourn the review for two or three months in which to provide a post-hearing submission. He indicated they were awaiting a response from the Department in respect of an FOI request pertaining to the applicant’s file. The representative also requested that the Tribunal refer the matter to the Minister if finding he was not owed protection obligations. The Tribunal agreed to adjourn the matter until 29 August 2024 for the representative to provide any further submissions. However he did not provide any submissions by this date, or as at the date of this decision, and did not contact the Tribunal to request a further extension of time in which to provide a submission.
The Tribunal notes whilst it does not have sufficient information before it to refer the matter to the Minister, this is an option open to the applicant pursuant to s 417 of the Act.
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).
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nicole Burns
Senior 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
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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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