2312621 (Refugee)

[2023] AATA 4375

2312621 (Refugee) [2023] AATA 4375 (26 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Manoj Kumar Nanda (MARN: 1568823)

CASE NUMBER:  2312621

COUNTRY OF REFERENCE:                   India

MEMBER:Luke Hardy

DATE:26 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 26 September 2023 at 4:04pm

CATCHWORDS

REFUGEE – Protection visa – India – religion – apostasy – fear of being persecuted by parents, uncles, other family members and friends – family associated with violent Sikh extremists – imputed to have abandoned Sikhism – invented, improvised and embellished claims about fear of punishment for apostasy –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 91, 499

Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, [Mr A], is a citizen of India. He first entered Australia on [date] June 2008 on a student visa valid to 15 March 2010. That visa expired and [Mr A] became an unlawful non-citizen. He carried a succession of bridging visas from 25 March 2013 until his departure for India on [date] October 2014.

3. [Mr A] re-entered Australia on a subclass 309 Partner (Provisional) visa on[date] March 2016 valid to [date] April 2023. In the meantime, [Mr A] was convicted in a matter attracting a 12-month jail sentence and his Partner (Provisional) visa was cancelled. He has explained to me that he missed the 28-day time limit to apply for review/revocation of the cancellation as he was not only in jail at the time but had been moved from one facility to another.

4. [Mr A] says he was transferred into immigration detention on 29 July 2023. He says he lodged a PV application on 1 August 2023 on the advice of his representative in this matter. The delegate refused to grant the visa on 14 August 2023. [Mr A] then sought review of that decision in this Tribunal and the matter was constituted to me. I find the review application valid.

5. [Mr A] appeared before the Tribunal by MS teams link on 26 September 2023 to give evidence and present arguments. He did not require an interpreter. His representative did not attend the hearing.

6. I am satisfied that the communication between [Mr A] and myself was in no way impeded by audio-visual medium on which the hearing relied. His English was generally adequate and I am satisfied he was able to put his case clearly. He was not prevented from giving meaningful evidence by any factor beyond his control.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

8. 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.

9. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

10. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

11. 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

12. 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

    The issues

13. The key issue in this case is whether, on accepted evidence, [Mr A] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims

15. [Mr A] claims fear of being persecuted by his parents, uncles and other family members and friends because he has abandoned traditional Sikh beliefs and observances, and become “open minded”. He claimed in his original PV application that he changed his perspective after coming to Australia, “giving life threat” from the people just mentioned. He claimed he will not be able to subsist because he will be denied access to basic services and suffer significant economic hardship, threatening his capacity to survive. He claimed he would be tortured and/or murdered. Oddly he said the authorities in India could and would protect him if he returned there; this may have been a drafting error. [Mr A] claimed that he would not be able to relocate within India as his family would not accept his doing so. He said, “Because of all these threats to my life if I go back, could you please apply for bridging visa for me, so I can stay.”

16. As such, [Mr A]’s claims were unsupported and factually threadbare. The delegate did not interview [Mr A] but asked for more detail. The adviser provided a schematic summary of claims that are accurately presented in the primary decision, which [Mr A] has submitted for the purpose of this review:

    On 10 August 2023, the applicant’s representative, Manoj Nanda, provided a response to the s56 invitation. The information of relevance to the applicant’s claims for protection in this submission are summarised below:

    ·     He is a member of the Saini caste.

    ·     His family are strict Sikhs, particularly his mother and uncles. His family often pray at the temple twice a week. His father would attend the temple every day in the morning.

    ·     He attended the temple once a week in India.

    ·     As part of his religion he was required to be a vegetarian. Within a year after arriving in Australia in 2008 he started eating beef, chicken and other meat.

    ·     He stopped practising as a Sikh in 2012. When he returned to India in 2014 he had to start praying in front of his family.

    ·     In 2015 he met his wife in India. She was a Christian so as per the requirements of the Rehat Maryada, she converted to Sikhism. His family still did not accept his wife.

    ·     He returned to Australia in March 2016 in order to obtain permanent residency.

    ·     In 2018 he travelled back to India by himself due to the way his family treated his wife. His visit was short.

    ·     He has been branded as a patit [sinner, apparently]. His family think he has shamed them because he failed in his religious belief.

    ·     He received threats over the phone from India. He was told not to return to India because he was not following the Sikh religion and was a patit. This was because: he was not engaging in religious worship; he was not eating a vegetarian diet and was eating meat; he was taking drugs, smoking, and drinking alcohol, and; he was not wearing a turban. His family threatened to kill him.

    ·     His family found out about his conduct in Australia via social media, and through social connections.

    ·     He has not reported the threats to the police in India as he is in Australia and is protected.

    ·     He no longer is in contact with his family and friends in India, aside from one sister. His sister has been telling him what his family are going to do to him.

    ·     In addition to moving away from his religious practises, he is open minded as he does not judge anyone of colour or religion.

    ·     He has accepted Australian culture due to living in Australia. He does not want to have to wear a turban or be told what he can and cannot do if he returns to India.

    ·     If he returns to India, his family and uncles will torture and murder him. The government and police cannot stop them. He has witnessed people being killed because they have stopped following traditions/religion.

    ·     If he relocated in India, people would talk about him and this would mentally harm him. His uncles and cousins will locate him anywhere in India, and they are connected to government officials and the police. Delhi and Bombay are not safe for him.

    ·     He delayed […] applying for a Protection visa because:

    ·No one in the Indian community knew him and his family;

    ·He did not need to apply because he had a Christian wife and a Partner visa application;

    ·His issues arose when he was charged an went to jail; and

    ·The Indian community subsequently told his family he was not a good person, and that he used drugs and alcohol.

    Material submitted in evidence

17. [Mr A] submitted six items to the delegate and, again, directly to the Tribunal in support of his claims:

    ·     A copy of an online article regarding Sikh practices and literature from Encyclopaedia Britannica;

    ·     Two photos depicting him wearing a turban;

    ·     One depicting him without a turban;

    ·     A copy of an online article from the website resetera, dated 24 March 2023, titled, ‘Khalistan: The outlawed Sikh separatist movement that has Indian authorities on edge’ discussing a “colossal police hunt for an extremist Sikh nationalist in March 2023;

    ·     A copy of a US Department of Justice report, dated June 2018, titled, ‘India: Feasibility of Relocation of Sikhs and Members of the Shiromani Akali Dal (Mann) Party’;

18. [Mr A] further submitted to the Tribunal an extract from an online chat site

    Evidence given to the Tribunal

19. Some of the dates that [Mr A] provided in his oral evidence clash with those in evidence submitted through his adviser. Giving the benefit of the doubt I have adopted Mr Sigh’s dates to the extent possible.

20. [Mr A] said he married in Australia at a Hindu temple in [NSW], in 2012. However, he claimed to me that she never converted to Sikhism and remains a Catholic. I put to him that general reding suggests that Sikhs are very tolerant of other religions and their temples and even allow mixed marriages. He said this is true and that his family is a very conservative exception.

21. [Mr A] said he and his wife tried to apply for a partner visa during his first sojourn in Australia, the application being refused because he had overstayed his student visa. He said they lodged a Partner (Provisional) visa application in October 2014 and that this application was successful; the visa was issued on 13 January 2016, two months before he re-entered Australia. [Mr A] became confused as to whether the visa was a permanent partner visa or a provisional one, but logically it would only have been a provisional visa enabling him to apply for a permanent partner visa onshore later on. He was never issued with a permanent partner visa application.

22. [Mr A] said that when he was back in India between 2014 and 2016 he just went along with his parents’ Sikh observances because he just wanted then to be happy. He said he did not mention having “strayed”, as it were, from Sikhism. He said he did not even tell his parents his wife was a Christian. It was here I asked him of his wife had not converted, as previously claimed and he said she had not. I referred to an earlier claim about his wife having signed a document attesting to conversion and he said that had only been a document in which she adhered to being a Christian. Given the detail in earlier evidence about the wife’s conversion according to the requirements of the Rehat Maryada, this discrepancy appeared to me to be unresolved.

23. I asked [Mr A] if just going along with Sikh practices back in India bothered him much and he said again that he just tried to keep his family happy. He then said he was not happy abut being unable to cut his hair and having to wear a turban.

24. I asked [Mr A] to describe the occupations of family and relatives. He said his father was a [occupation], his mother a housewife and his uncles [farmers].

25. I sked [Mr A] if he could provide any evidence to support the suggestion that his family settles matters of disaffection and grievance through murder and he said they always threatened him over the telephone. I asked him how long this went on, and he said it happened for some time before he went to jail  this year. I asked him who used to ring whom and he said the calls were instigated from both sides. He did not suggest that he ever tried to prevent his family from calling him. Ultimately, aside from this bald assertion about having been threatened, [Mr A] provided no evidence to support his claims about his family threatening to kill him. He said he has since lost all contact with his family members.

26. I asked [Mr A] if he could safely and reasonably relocate, say, to a large city like New Delhi or Mumbai. I drew his attention to one of the documents he had submitted regarding Sikhs and relocation in India:

    There appear to be no legal obstacles for members of the Sikh faith to relocate to other areas of India. However, depending on the circumstances and financial position of the person, it may be practically difficult to relocate. According to some reports, if a person seeks to escape the attention of local police and is not of interest to central authorities, then internal relocation is feasible. Only hard-core militants appear to be of interest to central Indian authorities. According to a US government report, holding pro-Khalistani [separatist] views would not make someone a high-profile militant ...

27. [Mr A] did not argue that he would be suspected of being a militant. Still, he said he could not relocate. I asked why not and he said that people from his region (Punjab) live in such cities. He said it would be impossible for him to live in such places. I asked him why it would be impossible for him to do what other Sikhs from his region do, which is to live in those cities; in reply, he said it would be impossible for him to get a job. He then said his family would be able to “catch” him anywhere he were to go. I put to [Mr A] that from the sound of his description of his family, these people do not have strong or comprehensive networks outside of the locality in which they reside. He rebutted this, however, saying that his uncles belong to a national farming association, but did not give any suggestion as to how or why such a group would assist in the matter of a family vendetta.

28. [Mr A] then also said that his family and uncles are members of a Sikh extremist organisation and would use that network to hunt him down. I then put to him that this was a new claim. Meanwhile, previous claims about the family being friendly with the Indian government appear to contradict such a claim. I sked [Mr A] why he had not claimed prior to the hearing that his family was associated with violent Sikh extremists, and he said he had mentioned it to his lawyer who must have omitted it.

    I asked [Mr A] if he could sum up what harm he faces from his family and he said, “They hate me.”

    Findings in relation to s.36(2)(a) of the Act

29. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]

    [1] MIMA v Rajalingam (1999) 93 FCR 220 .

    [2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

30. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]

    [3] 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

    [4]  Sun v MIBP [2016] FCAFC 52 at [69].

31. Having viewed a filed photocopy of [Mr A]’s passport, as issued in Sydney in 2014 just prior to his return to India, I accept that he is an Indian national. I also accept from the photograph in the same passport that he was raised a Sikh. The photograph in the passport does not help support the claim about having broken with Sikh tradition and appearance back in 2012, but it could be argued that [Mr A] donned a turban to maintain appearances.

1. As [Mr A] has unambiguously cropped his hair and has trimmed his beard I accept that he may have, and would be imputed by other Sikhs to have abandoned Sikhism or at least more strict Sikhism. [Mr A] has put no evidence before me, however, to suggest that abandoning Sikhism is forbidden, let alone, say, as apostasy is in some Islamic cultures. He himself agreed that Sikhs generally are accepting of free choice in such things. He said his family, though, is different from other Sikhs in its conservatism as demonstrated by its association with an extremist Sikh group.

2. I find I am unable to rely on the claim about any such affiliation in this case. Hence I consider the claim about [Mr A]’s family being opposed to abandoning Sikhism to the point of committing or condoning murder quite unreliable. My overall impression is that [Mr A] has invented, improvised and embellished claims about fear of punishment for apostasy because he missed an opportunity to seek review of the cancellation of his partner visa, the PV stream now possibly his last recourse. This impression is reinforced by [Mr A]’s own words at the Tribunal hearing when he asked if the Tribunal could aske the Minister to revoke the cancellation of his partner visa.

3. Furthermore, I am not satisfied on the evidence before me that [Mr A] faces a real chance of being persecuted in India by other Sikhs or other non-state agents for having abandoned traditional practice and observance.

4. It may be that [Mr A] has brought shame to his family over his conviction in Australia. I am not satisfied, however, that this would give rise to a real chance of harm amounting to serious harm. Meanwhile, [Mr A] did not articulate a fear of being re-prosecuted in India in the matter of his offences in Australia, but I have considered the question in any event and I am not satisfied on the evidence before me that [Mr A] faces any such treatment in India in the reasonably foreseeable future.

5. I accept that [Mr A] may suffer emotional and psychological detriment being removed form his wife and other attachments in Australia but I am not satisfied on the evidence before me that this amounts to serious harm.

6. Having considered the evidence in this matter in its entirety, I am not satisfied that [Mr A] faces a real chance of being persecuted in India in the reasonably foreseeable future for any reason identified in s.5J(1)(a) of the Act, either separately or cumulatively. His claimed fear of being persecuted is not well founded. He is not a refugee.

7. For this reason, I have not needed to make any findings about relocation. However, on the evidence before me, I find that if [Mr A] prefers not to return to reside in Punjab, he could reasonably and safely locate himself in cities like Mumbai or New Delhi, not least given his assertions about other Punjabis residing apparently viably in such places. I am not satisfied on [Mr A]’s bald claim that it would be “impossible” for him to find sustainable work and subsistence in either location.

   Findings in relation to s.36(2)(aa) of the Act

8. Having concluded that [Mr A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

9. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

10. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.

11. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

12. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

13. Accepting that [Mr A] is a national of India, I find that India is the receiving country in this matter.

14. [Mr A]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have failed due to lack of credibility and for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [Mr A]’s protection claims can no more succeed as complementary protection claims than they have as refugee claims.

15. On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to India, there is a real risk that [Mr A] will suffer significant harm as exhaustively defined under s.5(1) of the Act.

16. Accordingly, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

17. There is no suggestion that [Mr A] satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s 36(2).

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Luke Hardy
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (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.

    …