2112743 (Refugee)

[2024] AATA 3669

2112743 (Refugee) [2024] AATA 3669 (23 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2112743

COUNTRY OF REFERENCE:                   China

MEMBER:L Symons

DATE:23 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 23 September 2024 at 5:37pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – period of unlawful residence – detention – physical assault – family violence – breaching the one child policy – household registration – passport renewal – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 September 2021 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of China, arrived in Australia [in] March 2013 as the holder of a [Student] visa. This visa ceased on 23 June 2013. She thereafter remained in Australia as an unlawful non-citizen for 2,880 days.

3. On 6 May 2021, the applicant applied to the Department of Immigration (the Department) for a Protection (Class XA) (Subclass 866) visa. On 12 May 2021, she was granted an associated Bridging visa. On 14 September 2021, the Department refused to grant her the Protection visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 21 September 2021, she applied to the Tribunal for review of that decision.

4. On 14 March 2024, the Tribunal wrote to the applicant and informed her that the Tribunal had considered the material before it and was unable to make a favourable decision on this information alone. The Tribunal invited her to appear before it on 5 April 2024 to give evidence and present arguments relating to the issues arising in her case.

5. On 4 April 2024, the Tribunal received an email from the applicant requesting a postponement of the hearing for medical reasons. She provided the Tribunal with some medical documents. On 4 April 2024, the Tribunal wrote to her and informed her that her request to postpone the hearing had been granted. On 17 April 2024, she was invited to appear before the Tribunal for a postponed hearing on 24 May 2024.

6. The applicant appeared before the Tribunal on 24 May 2023 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was not represented in relation to the review.

8. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criteria or under the complementary protection criteria.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.

13. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

15. The applicant’s claims in her application for a Protection visa are summarised as follows:

    ·She was born on [date] in Hebei Province in China. She is a citizen of China.

    ·She is a Protestant and has been the victim of a malicious campaign orchestrated by the Chinese Communist Party (CCP). There is widespread persecution of Protestants. They employed construction workers to remove the cross from the Protestant Church. She and the other parishioners protested against this. She and her friends were beaten and humiliated by security guards and detained for 2 weeks at the Police Station.

    ·At the Police Station, she was beaten for 2 weeks and humiliated by the Police. They disgraced her and treated her like a traitor. She realised how much disrespect and dishonour the CCP has for Protestants. For this reason, she left China.

    ·She did not seek help in China because it was risky and unsafe for her to do so. She feared that she would be punished again. She did not relocate as she did not think it would help her feel safer or would have stopped the government from persecuting her.

    ·If she returns to China, she will live a life of religious deprivation away from any meaningful religious faith. She will be harmed by being beaten by the Police and locked up in gaol.

    ·The Chinese government is not willing to protect her.

16. The applicant provided the Department with the bio data page of her Chinese passport issued [in] 2021 and valid until [2031].

17. The applicant was not invited to attend an interview with the Department. However, on 15 July 2021, the Department wrote to her, pursuant to s 56 of the Act, requesting that she provide further information in relation to her claims for protection within 28 days. She did not provide any further information. Her application for a Protection visa was refused on 14 September 2021.

18. The applicant has filed with the Tribunal copies of the Department’s Decision Record dated 14 September 2021, the bio data page of her Chinese passport issued [in] 2021 and valid until [2031], a tax invoice issued to the applicant by [a named] Medical Centre, [dated] 4 April 2024, a prescription and pathology results.

19. On 23 May 2024, the applicant filed with the Tribunal an undated and unsigned statement in which she stated that she instructed a migration agent in March 2013 to file an application for a Protection visa on her behalf. She subsequently lost contact with him and found out that he was not a registered migration agent. With the help of a friend, she accessed her Immi account at the Department and found out that he had claimed that she was a Christian and had been persecuted for that reason. She is not a Christian and those claims are not true.

20. The applicant made the following new claims in her undated and unsigned statement:

    ·She left her hometown and came to Australia to seek asylum because China is a one-party dictatorship.

    ·The CCP does not create an environment to believe in Christianity. 

    ·She pursues democracy and freedom. Human rights are suppressed by local government officials and speech is not free. It is not possible to express opinions in public media.

    ·There are many problems in China. The elections for the village chief are manipulated behind closed doors. They cannot elect their preferred candidates.

    ·She has been in Australia for 11 years and loves Australia as it provides a harmonious and comfortable living environment, comprehensive healthcare system provided by the government and a democratic society. She would like to continue living here.  

    Receiving Country

21. The applicant claims to be a citizen of China and has provided copies of the bio data page of her Chinese passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of China. The Tribunal finds that China is the receiving country for the purpose of assessing her claims for protection under the refugee criterion and the complementary protection criterion.

    Third Country Protection

22. The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to indicate that she has the right to enter and reside in any country than her country of nationality.

    Assessment of Claims

23. The applicant gave evidence that a friend introduced her to a lawyer to help her prepare her application for a Protection visa. She saw the lawyer about a month after her arrival in Australia ([in] March 2013). When the Tribunal noted that her application for a Protection visa was not filed until 6 May 2021, she responded that she did not when the lawyer lodged the visa application. She also did not know that he was unlicensed or what reason he gave for lodging her visa application.

24. The applicant stated that she recently found out that her previous lawyer claimed that she was a Christian. She is not a Christian and was not arrested in China. When asked what reason she gave him for lodging the application for a Protection visa, she responded that she told him that she believes in democracy and China has one party rule.

25. The Tribunal asked the applicant who prepared the written statement she filed with the Tribunal. She responded that her (current) lawyer prepared her written statement as she is not highly educated. She told the lawyer about her idea and the lawyer helped her to prepare the statement. The information she provided the lawyer is true and correct. When asked if she was aware of the contents of the written statement filed with the Tribunal the previous day, she responded that she did as her lawyer gave her a translation in Chinese. When asked that she was satisfied that her written statement is accurate and complete, she responded yes. It is what she thinks. (The Tribunal notes that there is no record of her being represented by a lawyer in the proceedings before the Tribunal).

26. During the hearing, the Tribunal discussed with the applicant her background, family, education, employment, where she lived in China, her marriage, why she left China and why she fears returning to China. She gave evidence that her parents have passed away. She has [specified family members] in China. She was married in 1988 and divorced a long time ago. She has two adult sons. They are married and have their own children.

27. The applicant gave evidence that after she left school she obtained employment as [an occupation] at a [business 1]. She stopped working there after her second child was born in [specified year]. At that time, China had a one child policy and it was strict. Her ex-husband and his family took her to the Family Planning Office and asked them to arrest her. In order to protect her child, she voluntarily resigned from her job. She and her ex-husband bought a vehicle and she then worked for 10 years [in a business 2].

28. The applicant stated that her ex-husband was unfaithful in their marriage and was violent towards her. They subsequently divorced. She lived with her ex-husband and his family until the divorce and thereafter lived with her mother. After coming to Australia, she obtained employment one month later and has been working as a [occupation] since then.

29. The Tribunal discussed the applicant’s claims with her. When asked about her claims in relation to democracy, she responded that what she meant about democratic freedom is that people can made their own choices. In China, the village leader is selected internally and there is no involvement by common people. When asked whether she ever voted to elect the village leader, she responded no, voting is not allowed in China. When asked why this was important to her, she responded that when she had her second child and got divorced, they did not ask her about her situation or the reasons. She lost her job and her hukou. This meant that she became a “black person” in China. She does not like the laws in China. When asked whether she had ever been involved in any political activities in China, she responded no. When asked whether she had ever been involved in any political activities in Australia, she responded no.

30. The Tribunal asked the applicant whether she was aware that the one child policy no longer applies in China and the Chinese government is now encouraging people to have (three) children. She responded that she has not been in China for many years and is not aware of the current law. For people her age, they experienced the one child policy. In view of her age now, it is no longer important to her.

31. The Tribunal asked the applicant whether she had any other political views or opinions besides not liking the law in China. She responded that socially the living environment, health care and food security is not safe. They use pesticides in the vegetables. It is not as good as Australia where vegetables are naturally grown rather than using pesticides.  

32. The Tribunal asked the applicant whether, besides being unhappy about with what happened when she became pregnant with her second son and wanted to have the baby, there was any other reason why she did not want to live in China. She responded that her family and the environment gave her a lot of pain. In Australia, she has a job that is suitable for her. People here recognize her and so she likes it here. Her home here has nothing that makes her want to leave.

33. The Tribunal asked the applicant what she thought would happen if she returned to China. She responded that she thinks she will no longer be used to life in China. She feels comfortable in Australia and has a job she loves. She would like to serve the Australian community. She wants to make a contribution. People can make their own contribution in their own way. When asked whether she had told the Tribunal everything she wished to say, she responded that she had. Her written statement contained what she wanted to say.

34. In her written statement to the Tribunal, the applicant stated that her claims in her application for a Protection visa are incorrect, she is not a Christian and was not arrested by the Police. She has not made any other claims in relation to religion. Her claims in relation to her political opinions are vague and unconvincing. Her evidence that she does not like the laws in China appears to be primarily in relation to the impact of the law on her life when she breached the one child policy in [year]. That policy is no longer in effect. In any event, her evidence is that it is no longer an issue for her because of her age.

35. The applicant’s evidence that the village leader was appointed and not elected by the people and China has one party rule appears to be observations rather than political opposition to this form of government. She was unable to explain why this mattered and, when pressed about her political views, reverted to the consequences of breaching the one child policy and its impact on her life. She repeatedly stated that she lost her job and her hukou.

36. The Tribunal raised a number of issues with the applicant. The Tribunal noted that the one child policy, in force at the time she had her second son, was a law of general application that she breached. The Tribunal noted that the circumstances in which she gave up her job, the circumstances that led to the breakdown of her marriage and her unhappy personal life explain why she wanted to leave China and the Tribunal understood that she wants to live in Australia because she has a job she likes, somewhere nice to live, an environment she likes and a lifestyle she enjoys. The Tribunal noted that this did not make her a refugee.

37. The applicant responded that, at the time she got pregnant with her second child, it was not planned. Her ex-husband’s family wanted him to divorce her and take away her first child. That is what made her decide to have the second child. This response does not address the issue raised with her or alleviate the Tribunal’s concerns.

38. The Tribunal has doubts that the applicant lost her hukou and became a “black person”. Her evidence is that she lived with her ex-husband at his house whilst married to him. She would therefore have continued to live at the same address after the birth of her second son until she subsequently divorced her husband. She was able to work in a [business 2] after she gave up her job as [an occupation] at the [business 1]. She would not have been able to do this if she had no hukou. After she and her husband divorced, she lived with her mother in a rural area until she came to Australia.

39. The applicant was able to obtain a passport [in] 2010 which she used to travel to Australia. She would not have been able to do so if she did not have a hukou at the time and was a “black person”.[1] She was also able to leave China lawfully. The Tribunal raised this as an issue with her. She responded that there were differences between farmers and city folks. Her ex-husband’s father was a farmer and he was the head of the household. She had a hukou in her parents’ household (prior to marriage). She was subsequently issued with a new hukou (upon marriage) in her husband’s household and her hukou in her parents’ household was cancelled. After her divorce, her hukou in her husband’s household was cancelled. She then applied for a new hukou in her parents’ household.

    [1] China: Services and Rights Linked to the Hukou, RRT. 12 April 2013.

40. The applicant provided the Tribunal with a copy of the bio data page of her Chinese passport which indicates that it was renewed [in] 2021 and is valid until [2031]. This tends to indicate that she does not have a problem dealing with the Chinese authorities and they have no problem issuing her with a passport. It also tends to indicate that she is not of adverse interest to them. When the Tribunal raised this as an issue with her, she responded that her hukou is at her ex-husband’s village so she can get a passport. This is not consistent with her earlier evidence that she applied for new hukou in her parents’ household after her divorce. It also does not address the issues raised with her.

1. The Tribunal raised as an issue with the applicant the fact that a Protection visa is not a work visa and is granted for a specific purpose. The Tribunal explained to her the circumstances in which a Protection visa is granted. The Tribunal noted that it may find that she does not satisfy the requirements for a Protection visa. She responded that she found a job in Australia so she could survive. In China, there is one party rule and people are not allowed to spread religion. If people believe in God, the CCP will not be happy as they will believe in God and not the CCP. Her response does not address the issue raised with her.

   Other considerations

2. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on China and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Findings

3. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that she is not a reliable witness.

4. The Tribunal accepts that the applicant was born on [date] in Hebei Province in China. The Tribunal accepts that her parents have passed away. The Tribunal accepts that she has [specified family members] in China. The Tribunal accepts that she was married in 1988 and has two children of her marriage. The Tribunal accepts that her two sons are now adults and have children of their own. The Tribunal accepts that she was subject to domestic violence at the hands of her ex-husband during the course of her marriage. The Tribunal accepts that he was unfaithful to her during the marriage.

5. The Tribunal accepts that the applicant’s second son was born outside the one child policy. The Tribunal accepts that she wanted to keep the child and, as a result, lost her long term job as [an occupation] at a [business 1]. The Tribunal accepts that her ex-husband bought a vehicle and she then worked [in a business 2]. The Tribunal accepts that she subsequently divorced her ex-husband and thereafter lived with her mother until she came to Australia [in] March 2013. The Tribunal accepts that she obtained employment as a [occupation] one month after her arrival in Australia and has worked as a [occupation] since then.  

6. The Tribunal accepts that the applicant’s claims in her application for a Protection visa were fabricated and that she is not a Christian and was not arrested by the Chinese Police. The Tribunal accepts that she did not agree with China’s one child policy. The Tribunal notes that she appears to have been penalized for breaching the one child policy in [year]. She has not claimed that she is now at risk of harm for this reason if she returns to China. The Tribunal notes that in 2016 the law was changed to allow all families to have two children and in 2021 the law was changed again to allow all families to have three children.[2]

   [2] DFAT County Information Report on China, 22 December 2021.

7. Despite her claims that she pursues democracy and freedom and there is no free speech in China, the applicant has not engaged in any political activities in China. She has also not engaged in any political activities in Australia despite the freedom of speech and other freedoms she enjoys here. The Tribunal is not satisfied that she holds political views that she is committed to and that she will seek to act on those views if she returns to China now or in the foreseeable future. The evidence before the Tribunal indicates that she has approached the Chinese authorities in Australia to renew her passport and that the Chinese authorities have renewed her passport. The Tribunal is not satisfied that she is of adverse interest to the Chinese authorities or is likely to be in the foreseeable future.    

8. The Tribunal accepts that the applicant likes her job, environment and lifestyle in Australia and would prefer to live here. The Tribunal accepts that she does not want to return to China for these reasons. She has not claimed, nor is there any indication that, she would not be able to apply for a new hukou in China, if she currently does not hold a hukou.

9. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if she returns to China now or in the reasonably foreseeable future. 

   Does Australia have protection obligations to the applicant under the refugee criterion?

10. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of her actual or implied political opinion or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that she would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of China. Therefore, she does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

11. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

12. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

    CONCLUSION

13. 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) or s.36(2)(aa) of the Act.

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

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         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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