2308774 (Refugee)

[2024] AATA 1170

2308774 (Refugee) [2024] AATA 1170 (6 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2308774

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Sydelle Muling

DATE:6 March 2024

PLACE OF DECISION:  Melbourne

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 06 March 2024 at 11:27am

CATCHWORDS

REFUGEE – protection visa – Fiji – particular social group – LGBTI individual – terminating employment obligations in Australia – workplace harassment – physical assault – fear of detention – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 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 Home Affairs on 16 June 2023 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 Fiji applied for the visa on 17 March 2023.

3. The applicant appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s aunt.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

10. The applicant is [an age] year old ethnic Fijian Christian male who was born in [Town 1], Fiji. According to his protection visa application, the applicant resided in [Village 1], [Town 1], in the Western Province of Fiji from [specified year] to [March] 2022. He completed [number] years education ([between specified years]) and is fluent in Fijian and English. The applicant was employed [in a business] in [Town 1] from [date] to [March] 2022. He departed Fiji legally [in] March 2022, arriving in Australia on the same day.

11. The applicant presented his claims in his protection visa application, summarised as follows:

    ·He left Fiji to come to Australia to work in a [business 2].

    ·He had not experienced harm in Fiji and had not moved to another part of the country as it was safe at the time.

    ·He was terminated from his employment in Australia because he was sickly and due to workplace bullying and harassment that he suffered.

    ·He was bullied by his own group who accused him of being lazy because they did not understand his health condition.

    ·When he made a complaint to the authorities in Fiji, he was harassed and accused of being lazy. He was told if he retuned to Fiji without fulfilling his duties he would be imprisoned and not given an opportunity to return to Australia.

    ·He became sicker and was bedridden for days and was terminated by his employer [in] September 2022.

    ·He fears if he returns to Fiji he will be bullied, harassed and imprisoned for being terminated by his employer. He will also be bullied and harassed because he is weak and as an LGBTI individual.

    ·He will be victimised because he became sickly when he started working in the [business 2], which he assumed he would be able to do but unfortunately his body was not strong enough to work there.

    ·The authorities will not protect him if he returns because he was terminated from work they sent him to Australia for.

    ·Fiji is too small to relocate. The country is small enough for him to be caught if he relocated.

12. The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 16 June 2023.

13. On 6 February 2024, the applicant submitted several documents including:

    ·Letter of termination of employment from [Employer 1] dated [in] September 2022.

    ·Several medical receipts, medical certificates and medical results dated between May 2022 and July 2022.

    ·Letter of support from [named], [Official 1] of the [Community Organisation 1] dated 1 February 2024.

    ·Letter of support dated 29 January 2023 from [Mr A], a Fijian citizen.

    ·Letter of support (undated) from [Ms A], General Secretary of the [Agency 1].

    ·Letter of support (undated) from [Person A] of [Agency 2].

    ·Letter of support from [Person B] dated 16 June 2023. 

14. The applicant appeared before the Tribunal on 14 February 2024 and gave oral evidence about their circumstances in Fiji, the reasons they left the country and why they do not want to return there now. The evidence will be discussed below, in the analysis and findings.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issues in this review are whether there is a real chance that, if the applicant returns to Fiji, they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Fiji, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

16. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

17. The applicant claims to be a citizen of Fiji. They travelled to Australia on a valid Fijian passport and state that they are a national of Fiji. In addition to providing a copy of their Fijian passport, which was issued [in] 2018, the applicant also provided a copy of their birth certificate. The Tribunal accepts on the evidence before it that Fiji is the applicant’s country of nationality and receiving country for the purposes of complementary protection.

18. In the hearing, the applicant explained that they came to Australia in March 2022 because they were going through a lot in Fiji, especially with their father and uncles. They were looking for a way to leave the country and the opportunity to work in [Australia] arose. The applicant stated that they cannot return to Fiji because they will be beaten, harassed and bullied by their family because of who they are. They claimed to be gay and transgender and that their family will harm them because they do not want them to be like this.

19. The Tribunal notes in the applicant’s protection visa application, they only briefly mentioned they feared being bullied and harassed as an LGBTI individual. The applicant did not elaborate any further as to their sexual orientation or gender identity, including whether they had experienced any harm in the past in Fiji for this reason. When the Tribunal queried why they had not mentioned that they feared harm in Fiji because they are gay and dress in female clothing and had also claimed that they had not experienced harm in Fiji and had not moved to another party of the country because it was safe at the time, the applicant was unable to provide an explanation. However, they did assert that they were assisted by a friend with completing the application and had not reviewed what was written. The Tribunal also noted that in the delegate’s decision, a copy of which was provided to the Tribunal, reference was made to the fact that they had not responded to the delegate’s request for further information about the bullying and harassment they had experienced in Fiji and details of their LGBTQI claim. The applicant suggested that they had not seen the email requesting this additional information.

20. In the hearing, the applicant stated they do not identify as either male or female but uses the pronoun they. They explained that growing up in Fiji they had close friendships with girls and a desire to wear girls’ attire. While they were open about wearing female clothing with their close female friends, they did not go out in public in female clothing in Fiji except for one occasion when they went to a nightclub dressed in a mini skirt and make up. The applicant claimed on this occasion, whilst lining up to enter the nightclub, their father appeared from nowhere. The applicant explained that at the time their father was still working for the military and was out on patrol. Their father slapped them in front of everyone and dragged them away and made them go home. Later, when their father came home, their father punched them and told them he no longer considered them his son and threw them out of the house. The applicant claimed that this was when they went and stayed with their maternal aunt in [Village 1]. The applicant confirmed in the hearing that they had been living with their family in [Village 2] up until then. When the Tribunal noted that their father seeing them on the only occasion they had gone out in public in female clothing appeared to be a big coincidence, the applicant suggested that their father may have been advised by someone who had seen them and had told their father. The Tribunal accepts as plausible that the applicant’s father may have been informed of the applicant’s attire by someone who had seen the applicant waiting to enter the nightclub.    

21. The applicant claimed before this incident with their father, in 2019 their uncle physically assaulted them. They explained that at the time of this incident they were staying at their uncle’s home and were asleep in bed when their uncle returned home drunk and woke them up saying he wanted to talk to them. Their uncle told them that he had heard rumours that they were hanging around with girls and dressing like a girl and that they were gay. The applicant claimed that they denied these things, but their uncle beat them with a piece of timber that had a nail protruding from it. The applicant claimed that following this incident they went to the police and reported their uncle, with the support of their mother. However, their father did not want them to do anything as he said they deserved what happened and that they should stop being “like that”. The applicant claimed that the police did not take any action.        

22. In terms of his sexual orientation, the applicant claimed that they are gay. They came to the realisation that they were attracted to men when they were in high school. They had their first sexual experience after completing high school, when they were undertaking further studies. The applicant spoke about their fear of being bullied by the community when they became aware that they were gay. The applicant claimed that in high school they were harassed by other male students who would call them derogatory names based on assumptions regarding their sexual orientation. The applicant’s evidence was that they had not been in a long-term relationship in Fiji but had engaged in casual relationships with men they would meet at parties or through social media. In Australia, they have had several casual relationships and is currently communicating with someone they met via [a dating application]. They claimed that they disclosed their sexual orientation to their mother and while she was supportive, she had told them to stop because if their father found out they would be in trouble. The applicant confirmed that their father and uncles were not aware that they are gay.

23. The applicant’s aunt in Australia, with whom he has resided with, provided oral evidence to the Tribunal via phone, at its request. She confirmed that the applicant dresses in female clothing and that they are gay. The applicant’s aunt also confirmed that while the applicant’s mother and father are aware that the applicant dresses in female clothing, only their mother knows that they are gay. The applicant’s aunt provided consistent evidence regarding the abuse the applicant was subjected to by their father and uncle because they associated mostly with girls and wore female clothing. She stated that if the applicant returns to Fiji the same things will happen as previously because Fiji is different from Australia and especially men “do not like these things”.

24. The Tribunal has had regard to UNHCR’s Guideline on International Protection No.9 relating to claims to refugee status based on sexual orientation and/or gender identity which notes that sexual orientation and gender identity are broad concepts and that gender identity and its expression may take many forms, with some individuals identifying neither as male nor female, or as both.[1] Considering all the evidence before it, the Tribunal accepts that the applicant identifies as both male and female, which may arguably be described as gender fluid, although the Tribunal does not intend to define the applicant’s sexuality using a particular word or phrase. Whilst the applicant did not openly dress as a female in the past in Fiji, the Tribunal accepts the applicant demonstrated a desire to do so particularly to their female friendship circle and on one occasion had gone out in public dressed in female clothing. It accepts that the applicant limited their dressing as a female because they feared the consequences if they did so. The Tribunal accepts that the applicant was physically assaulted by his uncle due to rumours he had heard and suspicions he may have had regarding the applicant’s gender identity. Similarly, the Tribunal accepts that the applicant was also physically assaulted by their father when they were seen in a skirt and makeup in public. The Tribunal also accepts that the applicant was subjected to bullying and harassment in high school based on their perceived sexual orientation.

    [1] United Nations High Commissioner for Refugees, Guidelines on International Protection No.9: 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.

25. The Tribunal accepts the applicant’s evidence that since coming to Australia they have become more open about their sexual orientation and particularly their gender identity, and that the applicant dresses as a female more often. The applicant discussed with the Tribunal their participation in a Fijian cultural dancing group in which they perform dressed as a female, as evidenced in video footage the applicant showed the Tribunal during the hearing. The applicant noted that they did not engage in such activity in Fiji. The Tribunal has also had regard to photographs of the applicant in make up at an event hosted by the [named] community, with their friends, and at a family gathering in Australia. It accepts the applicant’s assertions that they can express their true self and live more freely in Australia and that they are doing so.

26. The Tribunal has taken into consideration information from the DFAT Country Information Report on Fiji dated May 2022 which provides that Fiji is one of the few countries to have constitutional protections against LGBTQI+ discrimination. Gay sex was decriminalised in 2010 and whilst same sex marriage is not legal in Fiji, same sex couples can and do live in Fiji[2].  The constitution bans discrimination based on sexual orientation and gender identity or expression and employment relation laws prohibits discrimination based on sexual orientation.[3] Nevertheless, LGBTQI+ people experience discrimination in employment and other areas, including accessing healthcare and housing.[4] Further, the DFAT report notes that there is overall low visibility of LGBTQI+ people and issues in Fiji and it is difficult to observe or analyse patterns of discrimination and violence against LGBTQI+ people. Due to homophobic and transphobic attitudes amongst Fijian society, many LGBTQI+ Fijians hide their identity. It is not common for LGBTQI+ people to come out to their families, and when they do, they are often not accepted.[5] The DFAT report provides that LGBTQI+ people face a moderate risk of official and societal discrimination and moderate risk of violence. [6] While official statistics on violent crimes against LGBTQI+ people are not available, during 2022 NGOs reported such violence was common and that transgender women in particular face extremely high levels of sexual and gender-based violence.[7]

    [2] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, at 3.58.

    [3] US Department of State, Country Reports on Human Rights Practices for 2022, 20 March 2023, p 21.

    [4] Freedom House, Freedom in the World 2023 – Fiji, 31 August 2023; US Department of State, Country Reports on Human Rights Practices for 2022, 20 March 2023, p 21.

    [5] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, at 3.60.

    [6]  Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, at 3.65.

    [7] US Department of State, Country Reports on Human Rights Practices for 2022, 20 March 2023, p 20.

1. Based on the independent information before it, the Tribunal finds that persons of non-normative gender identity and/or sexual orientation constitute a particular social group for the purposes of s 5L and that the applicant is a member of this group. The identifiable characteristic shared by members of this group is their sexual orientation and gender identity and not a shared fear of persecution. The Tribunal finds that it is clear from the independent information that this shared characteristic distinguishes the group from Fijian society at large, as evidenced by the homophobic and transphobic attitudes amongst Fijian society and familial prejudice against LGBTQI+ persons. While the Tribunal accepts that Fiji has decriminalised gay sex and there are legal protections against discrimination against LGBTQI+ people, there continues to be prejudice and discrimination against LGBTQI+ people including gay males and transgenders, and violence against the LGBTI+ community is common.

2. The Tribunal accepts that due to homophobia and transphobia, many LBTQI+ people may hide their identity, as the applicant did, and that when discovered, this may lead to the individual being rejected by their family. The Tribunal finds the applicant’s father’s action of physically abusing the applicant when he saw them dressed in women’s clothing and their uncle physically attacking them because of rumours relating to their non-conforming behaviour, consistent with the information discussed above. The Tribunal accepts that the applicant has been able to be their true self since coming to Australia and that they have been open and conspicuous, particularly in relation to their gender identity. This is particularly reflected in their participation in Fijian cultural dance, [details deleted] in the Fijian community in Victoria, as confirmed in the supporting letter provided by the [Official 1] of the [Community Organisation 1]. Based on the independent information, as well as the applicant’s past experiences, the Tribunal finds that if the applicant returns to Fiji, they face a real chance of serious harm from their family members, particularly their father and uncles, and others in society, in the form of physical violence and discrimination amounting to serious harm, for the essential and significant reason of their membership of the particular social group comprising the LGBTQI+ community in Fiji, and particularly due to their non-normative gender identity. The Tribunal finds that the harm feared is systematic and discriminatory in nature.

3. The Tribunal does not accept that the applicant can take reasonable steps to modify their behaviour so as to avoid a real chance of persecution. The Tribunal finds that any modification of the applicant’s behaviour to avoid a real chance of persecution in Fiji on the basis of their gender identity and sexual orientation would conflict with a characteristic that is fundamental to their identity. The applicant is not required to take steps to alter their sexual orientation or gender identity or conceal their true sexual orientation or gender identity (s 5J(3)(c)(vi)).  

4. The Tribunal does not accept on the evidence before it that the applicant will be afforded effective protection by the authorities, including the police, from any harm they may face from their family members and other non-state actors. As noted above, the DFAT report provides that violence against LGBTQI+ people in Fiji is underreported and police protection is not always available. LGBTQI+ people are often discouraged from reporting crimes to the authorities for fear of further violence and harassment[8] and have been subject to discrimination and punitive treatment by Fijian police. [9] Transgender women in particular face routine harassment and targeting by police.[10] In research conducted by local NGO Diverse Voices and Action for Equality (DIVA) in 2018, 76 per cent of LGBTQI+ people surveyed responded that they did not feel safe going to the police and numerous respondents stated that they had been beaten by police due to their sexual orientation or gender identity.[11] The Tribunal finds the applicant’s experiences in Fiji, when they went to police to report the physical attack against them by their uncle, consistent with the independent information discussed above.

   [8] US Department of State, Country Reports on Human Rights Practices for 2022, 20 March 2023, p 21.

   [9] Rowe, J, Sullivan, C and Vaughan C, Sexual and reproductive health and gender based violence in Fiji: A review of policy and legislation, Untied Nations Population Fund (UNFPA) and the University of Melbourne, 26 October 2022, p.61

   [10] US Department of State, Country Reports on Human Rights Practices for 2022, 20 March 2023, p 20; Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, at 3.64.

   [11] ‘DIVA for Equality concerned about the treatment of LGBTQI people by some police officers’, Fiji Village, 13 September 2020.

5. The Tribunal does not accept that the applicant can avoid the harm they fear from their family members or the community by relocating to another part of the country. The Tribunal notes the DFAT report provides that whilst there are no legal limits on internal relocation, on a practical level internal relocation is limited by the fact Fiji is geographically small and land is held tightly in kin groups[12]. The Tribunal has also had regard to the information discussed above regarding the discrimination LGBTQI+ people face in employment, housing and in accessing healthcare. While the applicant was able to move from their family home to their aunt’s home in [Village 1] after the incident with their father, the Tribunal notes that this was in circumstances where the applicant was not living openly as a person of non-conforming gender identity and sexual orientation. Taking into consideration the independent information regarding the widespread societal disapproval of the LGBTQI+ community in Fiji, the moderate risk of violence LGBTQI+ people face and lack of protection from the authorities, the Tribunal finds that the real chance of persecution relates to all areas of Fiji.     

   [12] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, at 5.25.

6. For these reasons, the Tribunal accepts the applicant has a well-founded fear of persecution for reasons of their membership of the particular social group comprising the LGBTQI+ community, if they return to Fiji, now or in the reasonably foreseeable future. The Tribunal is therefore satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

7. The Tribunal notes that s 36(3) provides that if a person can take steps to avail themselves 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, Australia is taken not to have protection obligations in respect of that person. Nothing in the material before the Tribunal indicates that the applicant has a right to enter and reside in any third country apart from Australia. It therefore follows that s 36(3) does not apply.

   CONCLUSION

8. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a)

   DECISION

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

   Sydelle Muling
   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.

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