2313786 (Refugee)

[2024] AATA 1354

2313786 (Refugee) [2024] AATA 1354 (25 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2313786

COUNTRY OF REFERENCE:                   Timor-Leste

MEMBER:Nicole Burns

DATE:25 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 25 March 2024 at 10:57am

CATCHWORDS

REFUGEE – Protection Visa – Timor-Leste – father’s role was a village chief – father (and family members) being considered to be pro Indonesian/militia – applicant has failed to provide any documentary evidence – applicant does not face a real chance of serious harm from family members of these five men – general economic conditions do not amount to persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 56, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

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 5 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a [age]-year-old man from Timor-Leste (East Timor) who came to Australia on 8 February 2023 holding an International Relations (Subclass 403) visa. He applied for the visa on 8 April 2023.

3. The applicant appeared before the Tribunal on 23 November 2023 to give evidence and present arguments.

4. The hearing was conducted with the assistance of an interpreter in the Tetum and English languages.

5. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1), and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Timor-Leste, there is a real risk that he will suffer significant harm.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

12. In his protection visa application the applicant states he left Timor-Leste because he wanted to live in a safer country with a good economy. He states in Timor-Leste nowadays there are many criminal cases, a bad economy and his life is affected by the rising cost of living. He adds that ‘thefts and snatch cases’ are rampant and common and he has to financially support his parents and his siblings’ education.

13. The delegate was not satisfied economic hardship constituted persecution in the applicant’s case, and, in respect of the applicant’s fears related to crime, found there was effective state protection in Timor-Leste. The delegate refused the visa application on 5 September 2023.

14. In his oral evidence to the Tribunal the applicant described his background, work and education history, family circumstances, reasons for leaving Timor-Leste and concerns if he has to return. He raised new claims about problems he and his family members have purportedly experienced because his father was a village chief before independence and they were viewed as militia, aligned with the Indonesian military. His oral evidence in this respect is summarised as follows:

    a.The applicant was born and grew up in [a] village, [District 1] district, around [number] hours’ drive from Dili. His father was the chief of the village when Timor-Leste was under Indonesia’s control, from around 1989.

    b.In 1999 the applicant and his family (that is, his parents, sister and brother) moved from Timor-Leste to Kupang (West Timor), given they were accused of being (pro‑Indonesian) militia and against independence.

    c.The applicant completed primary school and high school in Kupang before returning to Timor-Leste (along with his family) in 2008 after Xanana Gusmao[1] visited West Timor and encouraged them (and others) to return, saying it was safe in Timor-Leste.

    d.The applicant and his family returned to their village in [District 1] district and farmed land around their house, surviving as subsistence farmers. They had limited land as locals had appropriated much of their land when they fled to West Timor in 1999.

    e.On return villagers would sometimes steal his father’s animals, saying he did not deserve them.

    f.On one occasion in around May 2022 the applicant’s father reported some villagers to the police for stealing his animals and they then arrested five men from a village, near their area. These men were released after spending 70 hours in a cell and returned to their village. Three days later they went to the applicant’s village, told everyone what his father had done (calling him militia) and along with a large crowd burnt down the applicant’s family’s house and killed his father and brother. The applicant, who was working in the fields at the time, came back before being chased away by the crowd. He ran into the forest and hid for around a week.

    g.The applicant’s mother and sister (who is disabled, from birth) ran away and took shelter in a house around two kilometres away from their village. The applicant went to Dili, applied for the seasonal program to get work in Australia, then returned to stay where his sister and mother were staying (in September 2022), until he went back to Dili in January 2023, and left for Australia in February 2023.

    h.During that time the applicant was very careful and was mainly in hiding.

    i.The five men who killed his father and brother were arrested immediately, detained, and then appeared at court in [City 1] in October 2022. One was charged with murder and received a 10-year sentence whilst the others received a 5‑year prison sentence. The applicant was too afraid to attend the trial, but noted people in authority from his village gave testimonies, according to his neighbours, many of whom were also witnesses.

    j.For around a week after the police arrested the offenders they provided police protection for the applicant and his mother and sister.

    k.The applicat said his life remains in danger from relatives of those who were imprisoned for killing his father and brother.

    [1] Then (and now) Prime Minister of Timor-Leste

15. The Tribunal has considered the applicant’s claims that his father and brother were murdered in May 2022 and their house was burnt down by villagers upset that his father had reported five of them to the police for stealing his animals. This allegedly took place in the context of his father (and family members) being considered to be pro‑Indonesian/militia given his father’s role as village chief prior to independence.

16. The Tribunal has several concerns with the applicant’s claims in this respect, for the following reasons.

17. First, the applicant’s claims about this incident and related matters are entirely new. At hearing the applicant said because he does not understand English well, he received help from [an] individual to complete the protection visa application form. He said he told everything to that person and was unsure why these particular claims were not included. Given the serious nature of these claims – including the purported murder of the applicant’s father and brother only a little over a year prior to claiming protection – the Tribunal finds it odd that the person assisting the applicant complete the application form for a protection visa completely omitted these claims, even though the applicant allegedly told them about these matters.

18. Second, there are other inconsistencies between information contained in the protection visa application form and the applicant’s oral evidence at hearing which cast doubts on his claims in these respects. For example, in his protection visa application the applicant states he lived in Dili, the capital of Timor-Leste (located in the administrative district of Dili), from [date] to 1 February 2023. However, the applicant’s oral evidence to the Tribunal was that he was living in Kupang, West Timor, from 1999 to 2008 and thereafter in the [District 1] district ([City 1] municipality) in Timor-Leste until he came to Australia in February 2023, which is where the violent incidents against his father and brother allegedly occurred in May 2022. Even if someone else helped him complete the application form as claimed, such an inconsistency combined with other concerns casts doubt on the applicant’s claims in these and related respects.

19. Third, the applicant’s oral evidence about who purportedly killed his father and brother and the surrounding circumstances grew during the course of the hearing. That is, initially the applicant told the Tribunal it was the family members of the five villagers who had earlier stole some of his father’s animals who had attacked them and burnt down their house. Later he said the group included martial arts groups (MAG) members and that two of the five men were MAG members. When asked how he knew that the applicant replied because they wore their MAG uniforms and he saw them just before the situation escalated: however, he had not indicated as such initially at hearing, instead saying he was out in the fields when the attack purportedly occurred.

20. Fourth, there are internal inconsistencies with aspects of the applicant’s evidence. For example, he claims the relatives of the five men who were arrested and sentenced to prison for the murder of his father and brother seek to harm him out of revenge, yet he returned to an area close to their village (two kilometres away) in September 2022 until he left for Australia (in February 2023), without any harm or incident, or even threats of harm. Only when asked about this did the applicant say he had to do everything in secret. He made general statements that his life is in danger and noted that the people his mother and sister have been living with have been contacted by the relatives of the imprisoned men but was vague when asked about specific threats and details.

21. The Tribunal also notes that despite claiming the police arrested and charged the men responsible for killing his father and brother, who then received prison sentences after a court case, the applicant has failed to provide any documentary evidence, such as police reports or court reports. At hearing the Tribunal asked the applicant if there were any media reports about the May 2022 incident or documents, for example, related to the court case, police reports, and/or his father’s and brother’s death certificates. The applicant said the incident was not reported in the media, and he was unsure whether there were death certificates issued, for example because it was during the COVID-19 period.  He said he knows the police took photographs of his father’s and brother’s bodies on the side of the road and of their burnt house, which was used as evidence in court.

22. When the Tribunal asked the applicant if his mother – who remains in the same place in Timor‑Leste along with his sister – has any such documents, the applicant said he does not think so. He noted that her mental condition is not good after the attack, and that she is unable to sign anything, only giving her thumbprint if required.

23. Whilst the Tribunal notes the applicant is not necessarily required to provide documentary evidence to support his claims, given the nature of his claims (involving the police and other legal institutions in Timor-Leste), the Tribunal would expect him to be able to provide something showing the arrest and charges and court matters related to his father’s and brother’s alleged murder. The Tribunal is not persuaded by his explanation that this occurred during COVID-19, particularly as court matters still progressed during this time, on his own evidence.

24. Given these concerns, the Tribunal does not accept the applicant’s claims that his father and brother were murdered, and their house was burnt down, in May 2022 by a group of men, some of whom were angered because they had been arrested for stealing some of his father’s animals prior. It does not accept these five men were subsequently arrested, charged and imprisoned. It does not accept the applicant and his mother and sister had to flee and hide for some time following the purported incident, or that his father had animals stolen (as the precursor for the alleged murders) as claimed.

25. It does not accept relatives and/or associates of these five men have threatened the applicant’s mother or sister who remain in Timor-Leste.

26. It follows that the Tribunal finds the applicant does not face a real chance of serious harm from family members of these five men (or other associates, including members of MAG) on return to Timor-Leste in the form of revenge for their imprisonment or for any other reason. His fears of persecution on this basis are not well-founded.

27. Given these concerns with the applicant’s evidence in this respect, the Tribunal also does not accept the applicant’s claims that his father was a village chief for around 10 years and that he and his family moved to West Timor in 1999, possibly due to his father being suspected militia/pro‑Indonesian, before returning to Timor-Leste in 2008. It does not accept their land had been appropriated by others whilst away.

28. Therefore, the Tribunal finds the applicant does not face a real chance of serious harm from the authorities and/or community members on return to Timor-Leste in the reasonably foreseeable future because his father was a village chief during the time of Indonesian occupation, and due to possible ongoing imputed pro-Indonesian/militia links.

29. The Tribunal notes at hearing the applicant said there is often fighting between MAG members in their village and surrounds. He said on one occasion in 2021 when he was out in the field a MAG member accused him of being the son of a militia and chased him: the applicant ran away and threatened to report him to the police. However, his evidence was vague and general, and the Tribunal does not accept this incident occurred as claimed.

30. Country information indicates that ongoing security challenges in Timor-Leste include community violence involving Martial and Ritual Arts Groups (MRAGs), primarily between rival groups.[2] At hearing the applicant said he is not a MAG member and gave no indication he would be on return. For these reasons and given the Tribunal does not accept his father and brother (and property) were attacked by a group of people including MAG members in the past, or that he was chased by MAG members whilst working in the fields in 2021, the Tribunal considers remote the chance the applicant would face serious harm from members of MAG on return to Timor-Leste in the foreseeable future.

    [2] ‘Timor-Leste Country Security Report’, OSAC [Overseas Security Advisory Council], Bureau of Diplomatic Security, United States Department of State, 8 October 2021, pp.1-2 ‘Crime Environment’ at 1,

31. The Tribunal accepts there remains a risk the applicant may be caught up in violence between MAG members on return. However, the Tribunal does not accept the applicant would be targeted or that any such incidences, if they occurred, would involve systematic and discriminatory conduct as required to meet the definition of well-founded fear of persecution in s 5J(4)(c) of the Act. Accordingly, the Tribunal finds the applicant’s fear of serious harm at the hands of MAG members – either directly or indirectly as a result of being caught up in violent flare ups between groups – is not well-founded.

32. As noted, the applicant stated in his application form that he left Timor-Leste due to the bad economy there, and because his life was affected by the rising cost of living. At hearing the applicant said he told the person who helped him complete his application form that it is difficult to get work in Timor-Leste; that because of his background people hated him; and he needed to help his mother and sister (which he does by sending them money from Australia). He said he has been working in Australia but not since around April (2023) because he is waiting for his tax file number. In Timor-Leste he worked as a farmer. He said he completed high school.

33. The Tribunal accepts the applicant was motivated to come to Australia to work in order to send money back to his family members there. It accepts he is concerned about getting work on return and is more generally concerned about the economic situation there including the rising cost of living. However, as discussed at hearing, concerns about the applicant’s financial situation on return to Timor-Leste do not necessarily amount to him facing a real chance of persecution for a refugee reason. The Tribunal notes the applicant’s oral evidence was that he completed high school and has work experience in Timor-Leste and in Australia, over several years. The Tribunal accepts the applicant wishes to remain in Australia because he can earn more than he can in Timor-Leste and it accepts he would like to be able to continue to assist his family members there. However, as the Tribunal does not accept the applicant’s claims that his father was a chief or considered militia, it does not accept the applicant had difficulties obtaining work or being able to work in Timor-Leste for these or any refugee related reason, or otherwise have his livelihood threatened. Additionally, the Tribunal has not accepted the applicant’s brother and father were murdered and their house was burnt in 2022, given concerns with his evidence in this regard as discussed.

1. Given these considerations, the Tribunal finds there is no real chance the applicant would suffer significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per the non-exclusive examples of serious harm mentioned at ss 5J(5)(d)–(f) of the Act), for one or more of the reasons mentioned at s 5J(1)(a) of the Act, should he return to Timor-Leste. His fears of persecution on these bases are not well‑founded.

2. As noted in his protection visa application form the applicant states in Timor-Leste nowadays there are many criminal cases, and that ‘thefts and snatch cases’ are rampant and common. At hearing the applicant did not indicate any specific fears related to crime or indicate that he had been a victim of crime in Timor-Leste in the past, except for in relation to having his house burnt down in 2022 (and allegedly being threatened by a MAG member in a separate occasion in 2021) which for the reasons above the Tribunal does not accept. The Tribunal also does not accept the applicant’s claims that his brother and father were murdered, and their house burnt down.

3. For these reasons, the Tribunal is not satisfied the applicant faces a well-founded fear of persecution on return to Timor-Leste due to there being many criminal cases, and ‘thefts and snatch cases’ being rampant and common. His fears of persecution on this basis are not well‑founded.

   Complementary protection

4. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal finds that the applicant is a national of Timor-Leste and that Timor‑Leste is the ‘receiving country’ for the purposes of s 5(1).

5. For the reasons set out above, the Tribunal has found there is not a real chance the applicant will experience serious harm from anyone on imputed pro-militia/Indonesian political opinion grounds (based on his father being a village chief during Indonesian rule) or from MAG members, or on the basis of being unable to subsist, or for any economic‑related reasons, if he returns to Timor-Leste, now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that 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. [3] The Tribunal notes that this applies equally to the assessment of ‘well‑founded fear’ for the purposes of s 5J. It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Timor‑Leste for these reasons.

   [3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

6. The Tribunal accepts the applicant has concerns about being able to find work if he returns to Timor-Leste to support some family members and due to the general economic situation there. However, for the reasons above, the Tribunal does not accept that any person or group will seek to harm him for any reason relating to his economic situation, and/or prevent him from obtaining work. Australian courts have held that complementary protection obligations are concerned with acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person.[4] Accordingly, the Tribunal finds that any economic hardship the applicant might experience if removed to Timor‑Leste would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.

   [4] GLD18 v MHA [2020] FCAFC 2.

7. Additionally, and as noted above, the Tribunal accepts there remains a risk the applicant may be caught up in violence between MAG members on return, or in respect of crime more generally. However, this risk is one faced by the population of Timor‑Leste generally, not by the applicant personally, which is one of the circumstances in which a person will be taken not to face a real risk of significant harm, as per s 36(2B)(c) of the Act.

8. For these reasons, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s 36(2A) of the Act, if he is removed from Australia and returned to Timor-Leste. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

   CONCLUSION

9. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

10. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

11. There is no suggestion that the applicant 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, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Nicole Burns
    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.

    …