2203580 (Refugee)
[2024] ARTA 582
•25 October 2024
2203580 (REFUGEE) [2024] ARTA 582 (25 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2203580
Tribunal:Michael Simmons
Date:25 October 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 25 October 2024 at 4:21pm
CATCHWORDS
REFUGEE – protection visa – Mauritius – religion – conversion from Islam to Christianity in Australia – threatened by husband in home country – vague and inconsistent claims and evidence – no formal conversion or regular attendance or activities, and vague descriptions of churches attended – regular contact with husband – delay in applying for protection – applied after student visa cancelled – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASE
MIAC v SZQRB (2013) 210 FCR 505Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a national of Mauritius, applied for the visa on 27 May 2016.
The applicant appeared before the Tribunal on 15 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mauritian Creole and English languages, though the applicant mostly elected to communicate in English.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant arrived in Australia in August 2008 on a student visa which was cancelled in May 2010.
Evidence before the Department
·Protection visa application lodged 30 May 2016.
·Signed statement dated 4 March 2022, provided with a copy of the applicant’s passport biodata page and a ‘Certified Extract of a Marriage Entry’ for the applicant.
Evidence before the Tribunal
·The hearing
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection claims
The applicant’s reasons for fearing return to Mauritius, as detailed in the visa application, can be summarised as follows.
·Since she has been in Australia she has experienced a lot of racism because of her religion.
·She is not happy with what is going on around the world with Muslims so she decided to change her religion to Christianity.
·When she spoke to her husband he threatened to kill her if she changed her religion and returned to Mauritius. If she returns to Mauritius she will be killed by her in-laws.
·She has not experienced any harm in Mauritius but if she returns she fears she will be prosecuted for trying to change her religion.
·The authorities of Mauritius will not protect her.
·She will not be able to move to a different area of Mauritius because it is a small country and her family will find her everywhere she goes.
The following details were provided in the March 2022 statement.
·She was born to the Islamic faith but has never been a committed Muslim.
·Since coming to Australia she felt a certain amount of resentment and discrimination because of her religion, which she now thinks is more of a perception rather than reality and had more to do with her own lack of commitment towards Islam.
·She lived amongst Christians and had an already existing amount of respect for Christianity. She learned a lot about the Christian faith from friends. It seemed a natural progression for her bypass her perceived racism and convert to Christianity.
·She was not happy with what was going on around the world with Muslims, however this was only one of the reasons to change her religion. On communicating her intention to change her religion to her husband, she was surprised and shocked by his reaction. He threatened to kill her if she converted to Christianity and returned to Mauritius.
·Her in-laws were furious at her decision to change religions and threatened to kill her if she returned to Mauritius.
·After she received death threats from her husband and in-laws she decided to seek protection in Australia in 2016.
·If returned to Mauritius, she fears she would be prosecuted by the authorities not only for changing her religion but even for simply trying to change her religion.
·Moreover, the authorities in Mauritius will not protect her and have no intention to protect her from her husband and in-laws.
·Mauritius is a small island and there is no place on the island she be safe from her husband and in-laws, they will find her no matter where she goes.
The applicant and I discussed her past experiences and future fears in Mauritius during the hearing. At the outset of the hearing the applicant confirmed the information provided in her visa application was complete and accurate, and that she did not wish to update or change anything.
At the conclusion of the hearing she confirmed that she had told me everything she wanted me to know in relation to her application, and everything she wanted to tell me in respect of her fears on returning to Mauritius.
REASONS AND FINDINGS
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm were she to return to Mauritius. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and background
The applicant provided a copy of her Mauritian passport. The detail in that document corroborates her claimed identity and nationality. I accept that the applicant is who she claims to be and that she is a national of Mauritius. Mauritius is the receiving country for the purpose of this assessment.
Religion
When asked about her religion, the applicant stated that she does not have one. She added that “I went to change my religion but they said that it will take more time”.
When asked if she has ever been Christian, the applicant replied “not yet, but I will”. I asked when this will occur, and she replied “I keep going to church but I will become when I am ready”.
I put to the applicant that she wrote in 2022 she had converted to Christianity. She suggested that she said at that time she will convert. I read to her from the 2022 statement the following extracts:
“Had I not had doubts about Islam and respect for Christianity, I would never have converted” and;
“It seemed a natural progression to bypass my perceived racism and convert to Christianity”.
She then stated “I converted I am only Christian I am doing all these things. I don’t know if I have to go somewhere to convert”. I asked if she became Christian in 2022 or not, and she indicated that she did. When I asked if she is a Christian now, she replied “I am”. When I noted that she told me before she was not a Christian, she replied that she is a Christian now because she goes to Church and is still reading her bible and is not ready to do it officially. I asked, again, if she has converted her religion or not because she wrote in 2022 that she had. She replied that she is Christian.
I invited her to explain the steps she went through to change her faith. She said “I stopped Muslim I started doing all the Christian things, bible, pray and church, accept Jesus Christ”. I asked if she was ever baptised, for example, and she said no.
I queried which church she attends, and she indicated “I go everywhere I go to [Suburb 1], close to my house, or close to the city”. She also indicated she attends a church in [Suburb] with a cross.
I asked the applicant what kind of Christianity she follows. She stated she is a “pure Christian Catholic”, then confirmed she is Catholic.
In addition to being invited by the Department and the Tribunal a number of times to provide any supporting material she wishes to rely on, I note that the applicant was also specifically asked by the delegate to evidence her claimed involvement with Christianity. A request to her on 8 February 2022 noted:
There is no information before me that you are currently a Christian. Your lack of detail or evidence raises concerns about the genuineness of your protection claims… I am inviting you to provide further information about your claims, including documentary evidence about your religious practises in Australia, the names and locations of any church/es or groups you attend, when you attend them, your role/s or other activities you take part in, if you are baptised, how you became interested in Christianity, what you believe in as a Christian and how you express your religious beliefs in your daily life.
In reply to this request, the applicant submitted the March 2022 statement outlined above, but gave no supporting material nor any of the specific particulars requested.
I asked if there was a reason she had provided no supporting material to evidence she has had any involvement with either Christianity or Catholicism at any time. She responded “who will give me”. I suggested any church group or community she is part of could provide letters of support, for example. She indicated that every week there are different people and no one knows her.
The applicant told me she goes to church every week, and that she goes when she thinks she has to go. She last went to a church in [Suburb 2] but she does not know what kind of church it was and does not know the name of the pastor. I asked what was discussed at the last service she attended, she replied “Jesus Christ, to help, a lot of things, I go I pray myself”.
Her evidence was that she has a bible at home which she reads. She told me that the last thing she read in the bible that was important to her was ‘how to change people’. I asked her to explain this to me. she stated “if people are bad you have to change them in a good way with good words”. I asked which part of the bible that was from, such as which book. She stated it was “a normal bible”. I asked if she knew what the Holy Trinity was, and she indicated that she did not.
I noted that on the 2016 visa application form she recorded that her religion was Muslim. However, the same form she wrote that she had changed her religion to Christianity and her husband had sent her a death threat as a result.
I put to her that I had serious doubts in respect of her claimed religious conversion. I noted that there was no evidence before me, other than her assertions, to establish she has ever attended a church or been part of any Christian groups. She could not name any of the churches she attends. There are no letters of support from members of her congregations or any pastors, nor any photos or her taking part in any church activities or any other supporting material, despite being specifically asked to substantiate these claims. I put to her that she has provided shifting evidence as to whether or not she is now a Christian and whether she had changed her faith. She has also provided superficial and vague responses when questioned about her involvement in Christianity during her time in Australia. I expressed that I may not accept that she is in fact adherent to Christianity. She simply replied “no”.
I asked why she has given very different, conflicting evidence about whether or not she has become Christian. She replied “maybe I am confused I don’t know”. She asserted: “everything I have said is true, but maybe it has been too long so I forgot”. I noted that changing her religion would seem to be a significant event which I may not accept she would forget. I expressed that in light of the various concerns I had put to her, I may not accept that any of her evidence is credible or reliable.
The applicant requested more time to provide evidence in support of her claims. I noted that the Department of Home Affairs and the Tribunal had written to her a number of times inviting her to submit any evidence she had in support of her claims. Notwithstanding, I gave her until 22 August 2024 to provide any further evidence she wanted to rely on. I indicated if she needed more time to provide evidence, she can make this request in writing. To date no further material has been submitted and she has not requested additional time to make further submissions.
The applicant has provided conflicting, shifting and unsupported claims in respect of her asserted adoption of Christianity. I do not regard her oral evidence to be persuasive or credible. On the material before me, I do not accept that she has converted to Christianity or Catholicism, or that she has a sincere interest in either faith. I do not accept she had been attending churches or otherwise engaging in either Christian or Catholic activities while in Australia. Nor do I accept that she has left Islam. I reject these claims in their entirety.
Fear from husband
In the material before the delegate the applicant suggested that she fears harm from her husband due to her interest in and adoption of a new faith, which I have not accepted in fact occurred for the reasons set out above.
Her evidence to the Tribunal in respect of her husband contained different information to that before the delegate. She stated that her husband repeatedly harmed her when she lived in Mauritius. I asked why she did not mention this in her visa application or her earlier statements, noting that she declared in the visa application she was not harmed in Mauritius. She replied: “really I am scared”.
I noted that in the application she had already raised other claimed problems with her husband such as death threats, and given that, I queried why she would not mention that he had actually harmed her before. She did not answer my question, so I redirected her back to it. After a long pause, I moved on as she did not provide any response.
I noted that the applicant told me she came to Australia to escape her husband in 2008. However, in the March 2022 statement she asserts it was only after her husband made death threats against her in 2016 due to her changing her faith that she decided to apply for protection. I put to her that this was different to her oral evidence to the Tribunal that she left Mauritius to escape her husband in 2008. I asked her to explain this variation, she replied “don’t know”.
Evidence to the Tribunal was that the applicant is in contact with her husband every day and has been so since moving to Australia since 2008. I asked her why, if she has had such serious problems with her husband including previous harm and death threats, would she maintain this communication. She said her husband wants her to stay in touch. I put to her that she could change her phone number. She suggested she maintains contact with him to ‘avoid problems’. I put to her that I may not accept the relationship with her husband is as bad as she claims given she has lived overseas for sixteen years but remains in daily contact with him. She said she has to do this. I expressed to her that it was not apparent to me why she would have remained in contact with him, noting her extended time abroad.
The applicant then suggested that she maintained contact with her husband because of their daughter. She told me that “Every time I have a problem with my husband it is due to my daughter”, which is not something she has raised previously.
Towards the beginning of the hearing the applicant told me that her daughter had moved to Australia but she has nothing to do with her and has only met her once. She does not know when she arrived but thinks she came to Australia sometime in 2024. She only spoke to her daughter 1-2 times between 2008 and 2024, while the applicant was in Australia. She indicated that her daughter had married a man from a different faith which caused problems with the applicant’s husband. I noted that there was no mention in the 2016 application or 2022 statement that there was any problem with her daughter.
The applicant maintains she has had no on-going contact with her daughter since 2008. She indicated her daughter was [Age] years old when the applicant moved to Australia. She stated she did not have a smart phone when she came to Australia so could not stay in touch with her daughter. However, she also told the Tribunal details about her daughter’s marriage, and details about her visa status, her purpose of moving to Australia, who she moved with, and how she funded this move, which is all suggestive of her maintaining contact with her daughter.
The applicant asserted a number of times that she does not want to involve her daughter in her matter. I asked if her daughter would be happy for the applicant to secure a protection visa and her safety in Australia, and the applicant replied “she would because she knows my history”. Given her daughter would seemingly an awareness of the applicant’s claimed difficulties with her husband, and possibly also her religion, I asked if there was a reason why her daughter had not provided any evidence in support of her application. She said that she would need to talk to her but she does not want to put her daughter in any documents in her application. No supporting evidence from the daughter has been provided to the Tribunal to date.
I put to the applicant that it seems she only has daily contact with her husband because she chooses to, and that it was open to her to change her phone number. She then stated “I did change my phone number”, then later changed that position by stating “I don’t want to change my number because my friends have it”. I queried why she cannot change her phone number and tell her friends the new number. The applicant replied, “I know you cannot accept this because I am not giving good evidence, but inside me I know”.
The applicant has submitted no evidence to support that she is in on going contact with her husband, or anything to evidence that their relationship is acrimonious or abusive. She has lived apart from her husband for over sixteen years and could not provide a credible explanation for why she had maintained contact with him given the claims she has made against him. I do not accept that relationship was maintained due to their daughter. she had variously told me that she has had essentially no contact with her daughter since 2008, but also that her daughter has moved to Australia and as such would seemingly now not be at any risk from the husband. No evidence from the daughter has been submitted in support of the applicant.
I put to the applicant that I had serious doubts in respect of her claimed fear from her husband, noting she has provided shifting, conflicting and persuasive details in respect of this. I put to her that her waiting until six years after arriving in Australia to apply for a protection visa did not suggest to me that she sincerely feared returning to Mauritius at that time for any reason. The fact she is in daily contact with her husband for the last sixteen years does not support a conclusion that she fears harm from him.
The applicant indicated she had a video of her husband being angry which she wanted to provide. I gave the applicant until 22 August 2024 to provide any further evidence she wanted to rely on. I indicated if she needed more time to provide evidence, she can make this request in writing. To date no further material has been submitted and she has not requested additional time.
The applicant’s evidence in respect of the past harm and future fears connected to her husband is not persuasive or reliable. At various points in time she has provided markedly different details in respect of the claimed acrimonious nature of their relationship, which cumulatively leads me to doubt her narrative. In the material before the delegate she only asserted that the problems from her husband stemmed from her 2016 religious conversion, which as set out above I do not accept in fact occurred. To the Tribunal she suggested that she was subject to sustained harm from her husband for many years while resident in Mauritius, despite clearly asserting in the visa application she was never harmed in that country. She could not provide any meaningful explanation for why she continues to be in daily contact with her husband given the serious claims she has made against him. She has also provided shifting and unpersuasive assertions as to their daughter being the source of conflict between her and her husband. I do not accept that the applicant’s relationship with her husband is violent or acrimonious, and I am not satisfied that he has ever threatened or harmed her to date. I reject the applicant’s claims in respect of her husband in their entirety.
Does the applicant satisfy the refugee criterion for protection?
As set out above, I do not accept the applicant has been attending churches or otherwise engaging with either Christianity or Catholicism while in Australia. I have not accepted that the applicant has left Islam. I do not accept she has converted to Christianity or Catholicism or that she has a sincere interest in either faith. Nor do I accept that she may develop a sincere interest in these faiths, or genuinely seek to convert to either, or to leave Islam, in the reasonably foreseeable future were she to return to Mauritius. It follows that I do not accept that her husband or her in-laws have ever threatened or harmed her, or may seek to harm her in the foreseeable future, due to her religious conversion, interest is another faith, or departure from Islam.
Nor do I accept that she faces any risk of prosecution or any other official punishment in Mauritius for changing her faith, as I do not accept that this has occurred or may occur. Moreover, the applicant has not provided any corroborative material in support of this claim, and there is no indication before me that such conduct may result in official punishment in Mauritius.
I have not accepted that the applicant’s husband as previously harmed or threatened her, or that the pair currently have an acrimonious or violent relationship. I am not satisfied that her husband may seek to harm or threatened the applicant for any reason in the reasonably foreseeable future, were the applicant to return to Mauritius.
I am not satisfied the applicant faces a real chance of serious harm in the reasonably foreseeable future for any reason were she to return to Mauritius.
The applicant does not have a well-founded fear of persecution for any s.5J(1)(a) reason. The applicant is not a refugee per s.5H.
The applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion and does not meet s 36(2)(a), the I have considered the alternative criterion in s 36(2)(aa).
A ‘real risk’ and ‘real chance’ involve the same standard.[1] I have found above that I am not satisfied the applicant faces a real chance of serious harm in the reasonably foreseeable future for any reason were she to return to Mauritius. For the reasons set out above the applicant also does not face a real risk of any harm including treatment amounting to significant harm in the foreseeable future were she to return to Mauritius for any reason. This includes for any reason related to her claimed departure from Islam, or interest in or adoption of either Christianity or Catholicism; including prosecution or any official punishment, or any harm from her husband or in laws, for the reasons outlined above.
[1] MIAC v SZQRB (2013) 210 FCR 505.
I am not 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, there is a real risk she will suffer significant harm.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
For the above reasons I am not satisfied the applicant is a person in respect of whom Australia has protection obligations. The applicant does not meet either s 36(2)(a) or (aa).
There is no suggestion the applicant is a member of the same family unit as a non-citizen who holds a protection visa pursuant to s 36(2)(a) or (aa). It follows that the applicant is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 15 August 2024
Representative: n/a
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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