2013434 (Refugee) - [2024] AATA 3857

2013434 (Refugee) [2024] AATA 3857 (18 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013434
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Christine Cody
DATE:18 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 August 2024 at 11:36am
CATCHWORDS
REFUGEE – protection visa – Indonesia – non-appearance before the Tribunal – application dismissed – application for reinstatement – religion – Hindu – target of forced conversion – insufficient information before the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 425, 426A, 441A
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 August 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Indonesia. He departed legally from Indonesia [in] December 2017, arrived in Australia [in] December 2017[1] holding a Visitor visa. He applied for the protection visa on 12 January 2018.
[1] In the application form the date of arrival was referred to as [date] December 2018; this appears to be an error because in all other places in his application form he states that he was in Indonesia until December 2017 and since that time he has been in Australia. The Tribunal accepts that he meant to state the date of arrival as [date] December 2017.
Relevant law is set out in Annexure A.
Claims made to the Department
The applicant provided his protection visa application form, and some of the pages of his passport issued [in] 2015 (valid [until] 2020), and the bio page of his passport issued [in] 2020, valid [until] 2025.
According to the protection visa application form, the applicant was born in Indonesia and he is [age] years of age. His ethnicity is Indonesian, and his religion is Hindu. He speaks, reads and writes in Indonesian. He was educated, completing high school, in Bali. He married in 2009.
He lived at a single address all of his life in Bali, until he left Indonesia in December 2017. His wife and [children] still live at the same address.
He has not travelled to any other country.
He sets out his employment history as follows:
·     July 2002-July 2007: [Occupation 1] in a [business] in Bali
·     August 2007-June 2014: self employed as a [Occupation 2] in Bali
·     July 2014 – December 2017: [Occupation 3] for a named company in Bali
He is not in contact with his relatives outside of Australia.
His claims are summarised below:
·     He left Indonesia to avoid a risk of being harmed because of his religion. Muslims want to control Indonesia. He was harmed by Muslims when they knew his religion.
·     One day in mid-June 2017 he was stopped by several Muslims in front of his home and they started to beat him after he refused to change his religion to Muslim. They even threatened to kill him and he was very scared and he believes that he will be harmed if he returns to Indonesia.
·     He did not seek help because he did not know who can help him.
·     He did not try to relocate because there is no safe place for him in Indonesia.
·     He cannot seek help because no one helped him previously when he was harmed by Muslims.
·     He would not be able to relocate within Indonesia because Muslims are the largest religious group in Indonesia.
Consideration by the Department
The delegate noted that the applicant had had numerous opportunities to provide details of his case but he did not do so:
The applicant has been given the opportunity to specify the particulars of their claims for protection. The application form they completed advised them that they should provide all of their claims for protection and documentation or other evidence to support their claims with their application and that a decision could be made without giving them an opportunity to provide further information.
On 8 February 2018, the applicant was sent an acknowledgement of valid application letter which advised that they could provide any additional information that they would like to be considered. This letter advised the applicant that the decision on their application could be made without another opportunity to present any further information at an interview.
On 2 July 2020, the applicant was sent a Request for Further Information letter. This letter informed the applicant that a decision on their application could be made without the Department taking any further action to obtain that information.
On 14 July 2020 the applicant submitted a Form 1022 – Notification of changes in circumstances, along with a digital scan of a newly issued Indonesian passport. The applicant provided no responses to the request made to him on 2 July 2020[2].
[2] Source: delegate’s decision record provided to the Tribunal by the applicant
The delegate’s decision record contained reasons for the refusal of the application:
In a letter dated 2 July 2020 the applicant was asked to provide additional detail and evidence about the harm he claimed occurred to him in Indonesia, including any evidence that he approached the police.
As of the time of decision the applicant has not responded to this request.
The lack of a response to this letter to address these issues suggests that the applicant’s situation is not as described in their application. This raises concerns that these claims are not credible.
The applicant has provided no further detail or documentary evidence of the harm or threats made against him. The lack of supporting evidence and detailed information about the applicant’s claims raises concerns that the claims have been fabricated or embellished in order to enhance his claims for protection.
Despite thorough searches of country information I have found no information indicating that Hindus living in Bali, a province with a Hindu majority of over 80%, have been the target of forced conversion from Muslims. The applicant has provided no country information indicating that forced conversions occur in Bali. Given the prevalence of country information relating to inter-religious conflict in Indonesia, I would expect that if forced conversions of Hindus to Islam did occur, that this would be reported upon…..
The delegate did not accept that the applicant was threatened or harmed in any way by Muslims wanting him to convert to Islam. The delegate did not accept that the applicant was a refugee or entitled to complementary protection[3].
[3] Source: delegate’s decision record provided to the Tribunal by the applicant
The Tribunal
On 31 August 2020, the applicant lodged an application for review with the Tribunal, providing a copy of the delegate’s decision record and notification letter.
On 1 September 2020, the Tribunal sent the applicant an acknowledgement letter, confirming that it is important that he keep the Tribunal informed of any change in his contact details, because if he fails to do so, he might not receive an invitation to a hearing or other important information and his case may be decided without further notice. He was also informed that if he wanted to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. The Tribunal did not receive a response.
On 21 May 2024, the Tribunal wrote to the applicant informing him that his file was being prepared to be given to a Tribunal Member. The applicant was requested to provide any additional information/ evidence about his claims for protection and any other reasons as to why he is afraid to return to his home country. The applicant was asked to complete the pre-hearing information form and return it to the Tribunal within 7 days of receiving that email. The applicant was advised that if he wants to submit any further evidence to the Tribunal, he should provide it in writing as soon as he can. The Tribunal did not receive a response.
On 2 July 2024 the applicant was invited under s 425 of the Act to appear before the Tribunal on 23 July 2024, at 10:30am. The hearing invitation included the date, time, and location of the hearing. The applicant was advised that: having considered the available material, the Tribunal was not able to make a favourable decision on this information alone; he should read and complete the enclosed ‘Response to hearing invitation’ form and return it to the Tribunal within 7 days of receipt of the letter; he may attach additional information or any new information which he wishes the Tribunal to consider; he should provide all documents upon which he intended to rely by 16 July 2024; and if he is unable to appear at the hearing as scheduled, he should inform the Tribunal as soon as possible. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
The Tribunal did not receive a completed ‘Response to hearing invitation’ form.
On 9 July 2024 the Tribunal requested that he complete and return a form to include details of his mobile phone number. The Tribunal did not receive any documents or other contact.
On the day of the hearing, namely 23 July 2024, the applicant did not appear before the Tribunal at the scheduled time and place.
The Tribunal was satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) and the invitation has not been returned to sender. No satisfactory reason for the non-appearance was given.
The Tribunal thus made a decision to dismiss the application under s 426A(1A)(b) of the Act on 24 July 2024. The applicant was notified of that decision and he was informed that he could apply for a reinstatement of the application by 7 August 2024.
The day before the deadline for reinstatement, the applicant wrote to the Tribunal with an explanation that the Tribunal did not consider to be particular persuasive (he had not checked his email so he claimed to have missed the hearing invitation, although he found the email when he looked). He asked for more time to prepare his documents, although he did not specify what documents he was referring to, nor how much time was required.
The Tribunal was willing to give him the benefit of the doubt and accept that he unintentionally missed the hearing. The Tribunal noted that he was seeking to proceed with his application for review and it reinstated the application on 8 August 2024. In its decision, the Tribunal specifically noted that, although not presuming to make a decision for the future, it would be extremely unlikely that such reason (not checking his emails) would be accepted for a second time.
The applicant was notified of this reinstatement decision on 8 August 2024. Although he did not specifically ask to attend a hearing in his reinstatement request, the Tribunal decided to invite the applicant to a further hearing.
The Tribunal notes that there are no statutory notification requirements for the rescheduling of a hearing. The Tribunal had already invited the applicant to a hearing on 2 July 2024 to attend a hearing on 23 July 2024 in accordance with the notification requirements. The Tribunal considered that there should be reasonable notice given for a rescheduled hearing. On the same day that the application was reinstated, the applicant was invited to a hearing one week later, namely on 15 August 2024. The Tribunal considered that this was a reasonable notice period for the rescheduled hearing, given that he had had significant time to prepare and present his case since 2018:
·     The applicant had lodged his protection visa application in 2018 providing minimal detail. He had been given the opportunity on three separate occasions to provide further information/ documents to the Department but he had not done so. His application had been refused by the delegate who referred to these missed opportunities and considered that the lack of further information and documentation indicated that his claims were not credible. The applicant was aware of this as he provided the delegate’s decision record to the Tribunal. Thus, having received the delegate’s decision record, this was the fourth occasion that he was made aware that it appeared there was a lack of information/ documents to support his case. Even so, when he provided the delegate’s decision record to the Tribunal, he did not take the opportunity to provide any further information, supporting evidence or documents to the Tribunal.
·     The applicant had been informed ever since he lodged his application for review with the Tribunal in September 2020 that he could provide documents or information in support of his review, and in May 2024 he was informed that his file was being prepared to be given to a Tribunal Member and he was asked to provide information and evidence to the Tribunal as soon as possible. He did not do so.
·     Although in his application for reinstatement he sought further time to produce documents, he did not say what documents they were, why he had not produced them since 2018, and how long he needed to produce the documents. He has, since that time, still not provided any documents (or information about the documents) to the Tribunal. The Tribunal is not satisfied that the applicant intended to provide documents to the Tribunal.
The hearing invitation for the rescheduled hearing provided similar information to the first hearing invitation, noting that if the applicant was not able to participate in this hearing, he needs to advise the Tribunal as soon as possible. He was also advised that if he does not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it. He was advised that he should provide all documents upon which he intends to rely on to support his case by 13 August 2024, and that a decision could be made at the end of his hearing (thus on 15 August 2024). He was also requested to return the Response to Hearing Invitation form.
The applicant did not seek a postponement of the rescheduled hearing, he did not specify what documents he sought to produce nor did he say why he had not produced them to date. The applicant did not respond to the hearing invitation and did not appear before the Tribunal on the day and at the scheduled time and place of the hearing. There is also no record of the applicant contacting the Tribunal by any other means at the scheduled time, or before or after, to explain why he did not attend the hearing. The applicant had been asked to provide his telephone number to the Tribunal but had not responded to this request. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing on 15 August 2024 and the invitation has not been returned to sender. He has not provided any reason for his non-attendance. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant produced his passport to the Department, and the Department accepted that he was a citizen and national of Indonesia and assessed his claims against Indonesia. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Indonesia, and that the appropriate country of reference for the assessment of the refugee claims, and the receiving country for the purposes of the complementary protection claims, is Indonesia.
Satisfaction 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if he returns to Indonesia.
The applicant has only provided limited details of his claims in an application form 6 years ago. He has not taken the opportunity to provide more details about his claims to the Department[4], nor has he provided any additional documents or information to the Tribunal after his application was refused by the Department. He did not take the opportunity to provide any additional detail either in writing or orally at a hearing to the Tribunal.
[4] As set out in the delegate’s decision record and referred to above.
The Tribunal had a number of concerns with the applicant’s claims and considered that there was a lack of detail and information, including as follows:
·     In his protection visa application form the applicant claimed that he had lived at a single address all of his life before coming to Australia in December 2017. However, elsewhere in that form he claimed that he was beaten up in mid-June 2017, they threatened to kill him and he was very scared. This was stated to be the reason why he left Indonesia. His account indicates that the attackers knew where he lived, however he continued to live at the same home for the next 6 months. This undermines his claim that he was so scared that he had to leave the country, because he remained living in the same place for a further 6 months. This also undermines that anyone has had an adverse interest in him, because there is no suggestion in his application form that anything else happened in the following 6 months. Given this, it is difficult to understand why he had to leave Indonesia because if the attackers had an intention to cause him further harm, they had plenty of time to do so. It is also difficult to understand why then he would fear harm upon return.
·     The applicant claims that the beating and threats occurred in mid-June 2017; however in mid-June 2017 his passport shows he was in another country. He had obtained a visa for India on [date] May 2017 valid until [date] July 2017, and he had travelled to India on [date] June 2017, returning to Indonesia on [date] June 2017. The applicant has offered no explanation for this. Even if the beating and threat occurred after he had returned from India, he has not explained why, if he needed to escape, he did not then use his existing visa to return to India.
·     The Tribunal notes that the applicant claimed in his protection visa application form that no one helped him last him when he was hurt by Muslims so he does not believe that Indonesian authorities would help him if he went back. This is inconsistent with his claim that he did not actually seek help when he was hurt by Muslims. The Tribunal considered that the applicant could have explained in more detail whether or not he sought help, from whom, what happened, and why he believes he could not obtain help. Further, he claims that he is from Bali where the majority religion is Hindu[5], and he has not explained why in the circumstances he considers that he is not able to seek protection from the authorities.
·     According to his application form he left behind his wife and [children] at the same address. If his claims are true, this indicates that he left to escape danger but that his wife and children were left to face people who wanted him to change his religion and who were prepared to be violent and make death threats to achieve their goals, and from whom the danger is ongoing. He has not explained why he did this.
[5] Country information in the delegate’s decision record provided to the Tribunal by the applicant. The DFAT report confirms there is a high percentage of Hindus in Bali.

As set out above, the Tribunal must reach a state of satisfaction that the applicant is a person to whom protection obligations are owed. The Tribunal considers that the applicant has not provided sufficient detail to make out his claims and it is not satisfied on the evidence before it that the applicant was beaten by Muslims who threatened him because they wanted him to change his religion. The Tribunal does not accept any claims flowing from this including it does not accept that the applicant considered he had to leave Indonesia due to a fear of harm nor that he believes that he could not relocate nor seek protection from the authorities if he needed to do so for any reason. The applicant has not provided any independent evidence to support his assertion that Muslims seek to take control of his home area, Bali, and the Tribunal does not accept this claim. The Tribunal is not satisfied that there is credible evidence to support that the applicant faces a real chance of serious harm for reasons of race, religion, nationality, political opinion, or membership of a particular social group, or a real risk of significant harm in Indonesia, for any reason.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are made out, other than those claims accepted above, the Tribunal rejects all the various claims made and it is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion in the reasonably foreseeable future in Indonesia, nor that there is a real chance he would be persecuted for one or more of those reasons anywhere in Indonesia. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Indonesia, there is a real risk that the applicant will suffer significant harm.
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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - 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) (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.
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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