2203807 (Refugee)

[2024] AATA 4078

2203807 (Refugee) [2024] AATA 4078 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Andrew Wun Nam Au

CASE NUMBER:  2203807

COUNTRY OF REFERENCE:                   Brazil

MEMBER:Amanda Goodier

DATE:10 October 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 10 October 2024 at 4:14pm

CATCHWORDS

REFUGEE – protection visa – Brazil – particular social group – bisexual woman – lesbian – physical assault – employment – mental health issues – anti-LGBTI+ violence – state protection – MERCOSUR agreement – decision under review remitted

LEGISLATION

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

CASES

Chan Yee Kin v MIEA [1989] HCA 62
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
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 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 Home Affairs on 11 March 2022 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 Brazil, applied for the visa on 6 April 2020. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant faced a real chance of serious harm for one or more of the reasons referred to in subsection 5J(1)(a) of the Act. The delegate also did not accept that there was a real risk the applicant would face significant harm for any reason on their return to Brazil.  A copy of the delegate’s decision was provided to the Tribunal by the applicants.

3. The applicant appeared before the Tribunal on 19 September 2024 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

    Country of nationality

11. The applicant travelled to Australia on a genuine passport issued by the Brazil Government. She has at all times stated that she is a citizen of Brazil and has been assessed on that basis by the Department. The Tribunal finds she is a citizen of Brazil and assessed her claims against Brazil as the country of nationality and the receiving country.

    Background

12. The applicant’s claims for protection in their protection visa application are provided below:

    ·The applicant left her home country to learn English and find a better quality of life. The applicant has depressive episodes and needs somewhere else to start.

    ·The applicant experienced harm in Brazil.

    ·She experienced harm as her sexual orientation was not accepted in Brazil. She lost jobs because she was bisexual. On one occasion she was in a relationship with a girl when the manager found out and she was fired the same week.

    ·The applicant has received countless threats and as a result suffers from depression and panic disorder. She has been to many doctors and therapists to treat these conditions.

    ·The applicant sought help from the authorities, including the police but was told that “threats” do not merit police assistance because nothing in fact had happened. The fact she suffered from depressions and required medication was disregarded entirely.

    ·She tried to relocate to Sao Paulo and smaller cities such as Nova Alianca.

    ·She will not be able to restart her life if returns to Brazil.

    ·She believes she will be harmed if she returns.

    ·If she returns to Brazil, she will not be able to get a job easily. The government has no program to help people like her and she will not be able to live in peace due to the threats due to her sexual orientation. She will have to resume taking medication to help with her depression and will have to hide herself. She is afraid the situation will escalate into violence.

    ·She does not think the authorities can help as they are corrupt.

    ·She does not feel safe in Brazil and does not trust the government or police.

13. The applicant indicates in her protection visa application that she was born in [specified year] in Goiania, Goias, Brazil. She has never married. She currently holds a valid passport with an expiry date [in] 2026, issued by the Brazilian authorities and she departed Brazil legally. The applicant indicates her parents and [sibling] continue to reside in Brazil. She is in contact with them almost every day. The applicant indicates she resided at an address in Goiania, Goias from [year] to October 2016. She has lived at several addresses in Perth, Western Australia. She speaks, reads, and writes Portuguese and English. Her religion is Catholic.

14. The applicant arrived in Australia [in] October 2016 as the holder of a valid student visa.

15. In Australia the applicant has been employed since December 20019 as [an occupation 1] in [a business 1]. Prior to that she was employed as a supervisor in a [business 2]. She has also been employed as a cleaner.

16. In Brazil the applicant was employed from February 2011 to May 2012 as [an occupation 2] in [a location in] Soa Paulo; from October 2012 to July 2013 as a receptionist in a [business 3] and from October 2013 to August 2016 as a receptionist in a [business 4], both in Goiania, Goias.

17. In Australia the applicant has completed a [Qualification 1] as well as completed an English language course.

18. The applicant was not offered an interview by the delegate who accepted she was a lesbian but that effective protection measures were available in Brazil such that she would not have a well-founded fear of persecution.

19. The applicant provided an undated, unsworn statement to the Tribunal in which she indicates she stays in Australia as she does not feel safe in Brazil. She lost jobs, moved cities, was threatened and did not feel safe. She cannot count how many things happened to her because of her sexual orientation. People are racist and prejudiced in Brazil. It usually happens behind one’s back for example she was never told why she did not get a job or was losing a job. It was always another excuse, but she could tell by the way people looked at her. She changed her telephone number frequently because of the threats. The police did not help as it was only threats. She struggles with depression and anxiety because of what she went through. Since she was 16 years, she has seen doctors. Psychologists, taken medicine and tried to keep a healthy mindset. She feels safe in Australia as she does not have to hide, and people are open minded as well as respect life.

20. The applicant told the Tribunal that she was aware of the contents of her protection visa application and the contents are true and accurate. She arrived in Australia as the holder of a valid student visa. She started studying English then completed a [qualification]. She now works in [this field] but previously worked in [other occupations] in Australia. She worked in various jobs in Brazil as outlined in her protection visa application. She studied at tertiary level in Brazil but did not finish the course.

21. The applicant confirmed her personal details at hearing. She resided with her parents until her departure for Australia. Her parents are separated, with her mother remaining in the family home and her father in Soa Paulo. Her [sibling], who is [an occupations 3], lives with [their] mother who works as a receptionist for her [sibling’s business].

22. The applicant told the Tribunal she has been living with a woman for the last two and half years. They have known each other since her arrival in Australia.

23. The applicant told the Tribunal she fears returning to Brazil as she is a lesbian. She lost jobs frequently because she was a lesbian. She would be fired without reason but usually after they found out she was in a relationship with a woman. She was in a relationship with a man for a period, but they broke up when he found out she preferred females. She claimed many things happened to her because she was a lesbian that she cannot remember. She was bullied often, especially as she dressed differently from others. If she returns to Brazil, it will be hard for her to get a job or deal with her mental health. She does not want to go back as she wants to be herself.

24. The applicant told the Tribunal she had been seeing a counsellor at [Agency 1] for the past two years for her mental health. She was struggling with anxiety and depression and spoke to the people at work who have been very supportive. In Brazil, for almost all her life, she was seeing someone in relation to her mental health. She had difficulties at school, her parents separated, and she moved schools often. She was in the public system and was prescribed medication. She is not on any medication at the moment.

25. The applicant told the Tribunal that she will not get a job if she returns to Brazil and if she does get a job, as soon as they find out she is a lesbian, she will lose the job. When asked how she knows it was due to her sexuality that she lost her job, the applicant responded that she does not know why as she was never given a reason. She just assumes it was because of her sexuality. In the past she was never given a warning, just dismissed.

26. The applicant told the Tribunal that she is in regular contact with her family who have been to Australia on two occasions to visit her. Her student visa expired about 2020 and she applied for protection. She arrived in Australia in 2016.

27. The Tribunal put country information to the applicant that Brazil has a new President who is more supportive of LGBT rights.[1] The applicant responded that she does not trust him as he was in jail. The Supreme Court in Brazil in June 2019 criminalized homophobia, setting out punishments for the crime.[2] As a result, LGBT+ persons will be protected under a criminal law that already prohibits discrimination on the basis of race, colour, ethnicity, religion and national origin.[3]

    [1] Human Rights Watch, World Report 2024, Brazil-Events of 2023

    [2] Country Reports on Human Rights Practices for 2019 - Brazil’, United States Department of State Bureau of Democracy, Human Rights and Labor, 11 March 2020, p.26 ‘Section 6. Discrimination, Societal Abuses, and Trafficking in Persons. Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity’, 20200312104521; 'Country Policy and Information Note. Brazil: Actors of protection', [United Kingdom] Home Office, [17] November 2020, p.8 paragraphs 2.3.9 & 2.3.10, 20201118093013.

    [3] Freedom in the World 2020 – Brazil’, Freedom House, 4 March 2020, section F4 at p.[16], 20200305093159.

28. The Tribunal put to the applicant that the country information indicates a significant improvement in LGBT rights since she left Brazil.[4] The applicant responded this is not reflected in the violence against women. The laws do not work in Brazil.

    [4] Country Reports on Human Rights Practices for 2023 - Brazil’, United States Department of State Bureau of Democracy, Human Rights and Labor, Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation; Gender Identity or Expression or Sex Characteristics’.

29. The applicant told the Tribunal that her anxiety is managed because she is in Australia. She is respected in Australia and would have to hide in Brazil. If she returned to Brazil she would have to restart her whole life.

30. The Tribunal referred to the UK reports that indicate Brazil has an effective police force and justice system. She would be able to obtain protection should she be threatened with harm. The applicant told the Tribunal that nothing happened to her in Australia.

    Findings and reasons

31. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

32. The mere fact that a person claims fear of persecution for a 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 of 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 enough 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.[5] Nor is the Tribunal  required to accept uncritically any and all allegations made by an applicant.[6]

    [5]  Section 5AAA of the Act.

    [6]  MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70].

33. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[7] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.

    [7]  Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at [482].

34. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[8] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

    [8] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

35. On assessing claims of sexual identity, the UNHCR Guidelines on International Protection No.9 notes that:[9]

    Ascertaining the applicant’s LGBTI background is essentially an issue of credibility. The assessment of credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements around the applicant’s personal perceptions, feelings and experiences of difference, stigma and shame are usually more likely to help the decision maker ascertain the applicant’s sexual orientation or gender identity, rather than a focus on sexual practices.

    [9] UNHCR, “Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees”, 23 October 2012; see: <>

    The UNHCR Guidelines on sexual orientation and gender identity indicate that LGBTQI individuals frequently keep aspects and sometimes large parts of their lives secret, and many suppress their sexual orientation and/or gender identity to avoid the severe consequences of discovery, including the risk of incurring harsh criminal penalties, arbitrary house raids, discrimination, societal disapproval, or family exclusion. That an applicant may be able to avoid persecution by concealing or by being ‘discreet’ about his or her sexual orientation or gender identity, or has done so previously, was not a valid reason to deny refugee status. Being compelled to conceal one’s sexual orientation and/or gender identity may also result in significant psychological and other harms.

36. The Tribunal found the applicant generally credible, particularly in describing her past circumstances in Brazil as a lesbian. The Tribunal accepts she has a supportive family in Brazil. The Tribunal accepts the applicant’s evidence supported by country information that there is discrimination against lesbian and the LGBTI+ community, including in the workplace.  After considering the applicant’s evidence, the Tribunal accepts the applicant is a lesbian.

1. Although there are no laws criminalising consensual same-sex sexual conduct between adults, Brazil has one of the world’s highest levels of anti-LGBTI+ violence. Violent homophobic rhetoric contributes to a sense of fear that open discussion of LGBTI+ rights and issues could be met with harassment or attack.[10]

   [10] Freedom House, Freedom in the World 2024: Brazil

2. According to a 2023 report, there is at least one sexual and gender minorities (SGM) person murdered every day and SGM persons frequently experience hate crimes, violence, forcible attempts to change their sexual orientation and/or gender identity, and discrimination in education and employment settings, healthcare facilities and public spaces. SGM people also face high profiling rates, discrimination, and harassment by law enforcement officers, which influences their willingness to report crimes.[11]

   [11] Malta, M., da Silva, A.B., da Silva, C.M.F. et al, Addressing discrimination and violence against Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) persons from Brazil: a mobile health intervention, BMC Public Health 23, 2069 (2023)

3. According to a 2023 US Department of State report, significant human rights issues in Brazil included crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons. A survey by a local NGO indicates that between January and June 2022, 139 LGBTQI+ persons were victims of violent deaths. The survey recorded 256 deaths in all of 2022, with gay men and women being the main victims (48 per cent). Discrimination based on sexual orientation and gender identity is also prevalent in the workplace. According to sources cited in a US State Department report, 33 per cent of companies avoided hiring LGBTQI+ employees.[12]

   [12] US Department of State, 2023 Country Reports on Human Rights Practices: Brazil

4. A 2020 report by Open Democracy refers to high rates of violence and discrimination toward the LGBTQI+ community in Brazil. Reasons include a ‘deep strain of social conservatism in Brazilian society’ and that Brazil is extremely violent, with the highest absolute number of homicides in the world, including many that are a result of hate crimes. A recent study, drawing on reports to ‘Disque 100’ (a state-sponsored hotline that collects, analyses, and reports human rights violations) and victimization data from Brazil's universal healthcare system, documented more than 24,600 incidents of violence perpetrated against Brazil's LGBQT+ population between 2015 and 2017, equating to 22 incidents a day.[13]  

   [13] Open Democracy, Brazil’s LGBT community faces surging violence, but they’re fighting back, 9 December 2020

5. The same report refers to low levels of official reporting by LGBTQ+ people, often because of the prejudices they face in the policing and criminal justice system. A survey released by the Brazilian Public Security Forum on the online behaviour of police found that 24 per cent of officers publish anti-LGBTQ content on their personal and professional social networks. There is considerable anecdotal evidence that many police, prosecutors and judicial authorities are biased against the LGBTQ+ community.[14]

   [14] Open Democracy, Brazil’s LGBT community faces surging violence, but they’re fighting back, 9 December 2020

6. Considering the above country information, the Tribunal finds there is a real chance, that is not remote or far-fetched,[15] that the applicant would face serious harm from members of society in the reasonably foreseeable future if she were to return to her home in Goias and live openly as a lesbian. The Tribunal accepts that she cannot be expected to conceal or modify her sexuality in order to avoid persecutory harm. As outlined above, the number of reported murders, hate crimes, incidents of violence and threats of violence, and discrimination toward members of the LGBTI+ community is significant and very likely to be higher due to underreporting.

   [15] Chan Yee Kin v MIEA [1989] HCA 62

7. The Tribunal finds that the applicant fears persecution for reasons of her membership of the particular social groups, lesbians. The Tribunal finds this group satisfies the definition in s 5L as the characteristics of gender and sexual orientation and are shared by each member of the group, including the applicant and are not a fear of persecution. The Tribunal is satisfied that these characteristics satisfy the requirements in s 5L(c) of being innate or immutable, fundamental to the applicant’s identity and/or distinguishing the group from society.

8. The Tribunal finds the applicant’s membership of this group to be the essential and significant reason for the persecution as required by s 5J(4)(a) and is satisfied that the persecution involves systematic and discriminatory conduct as it is targeted toward members of these groups and is non-random. Further, the Tribunal finds the persecution to involve serious harm, as required by s 5J(4)(b), as the harm includes a threat to the applicant’s liberty and significant physical harassment or ill-treatment.

9. The Tribunal has considered whether the real chance of harm relates to all areas of Brazil, as required by s 5J(1)(c). The Tribunal finds on the basis of the country information that supports significant levels of violence and threats of violence against the LGBTI+ community occur throughout the country, including in areas such as Rio de Janeiro which are often perceived as ‘gay-friendly’. The Tribunal finds that the applicant would face a real chance of serious harm in all areas of Brazil if she were to live openly as a lesbian.

10. The Tribunal finds on the basis of the country information that effective protection measures as defined in s 5LA would not be available to the applicant. Considering the significant levels of violence and other forms of harm toward LGBTI+ persons and the country information discussed above regarding prejudice amongst law enforcement officials toward these communities, the Tribunal is not satisfied that the applicant could access protection against such harm from the Brazilian authorities.

11. The Tribunal finds that the applicant could not take reasonable steps to modify her behaviour to avoid a real chance of persecution. Such modifications would fall within the various exceptions in s 5J(3), including conflicting with a characteristic that is fundamental to a person’s identity or conscience and concealing an innate or immutable characteristic.

12. For the above reasons, the Tribunal finds the applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1) of the Act.

13. Under s 36(3) of the Act, Australia is taken not to have protection herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

14. The MERCOSUR agreement may provide entry and residence rights to the applicant in another Member State. The Tribunal acknowledges that there may be practical and procedural limitations in the implementation of this agreement. The Tribunal also finds that the applicant is likely to experience particular difficulties due to her sexuality, such that the exceptions in s 36(4) would apply . Based on the available evidence, the Tribunal finds that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.

15. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

16. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

    Amanda Goodier
    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.

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    36     Protection visas – criteria provided for by this Act

    …

    (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.

    …