2314757 (Refugee)

[2024] AATA 1416

2314757 (Refugee) [2024] AATA 1416 (7 February 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2314757

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:  Kylie Allen

DATE:  7 February 2024

PLACE OF DECISION:  Sydney

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 07 February 2024 at 2:52pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – homosexual man – country information – treatment of the LBGTI+ community in Malaysia – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 1 November 2017 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 Malaysia, applied for the visa on 20 April 2017. The delegate refused to grant the visa on the basis that the applicant was not owed protection.

3. The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. The issue in this case is whether the applicant is a member of the LGBTI+ and whether he should be granted protection because of his sexuality. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Identity

1. The applicant provided a copy of his Malaysian passport to the Department and Tribunal. On the basis of this information and his compelling account of his life in Sabah, Malaysia, I find that the applicant is who he claims claim to be, a national of Malaysia, and Malaysia is his receiving country.

Protection claims

1. The applicant gave evidence to the Tribunal about his life in Malaysia and his experience of being same sex attracted. This evidence was given in a frank and compelling manner and was largely consistent with the information provided in the protection visa application. The applicant grew up in a family with both his parents and his [number] siblings. His family still live in Sabah and he does not have family elsewhere in Malaysia. He said that he has not come out to his family and is rarely in contact with them. He thinks his siblings may know about his sexuality but they do not acknowledge it because they do not want to know. He mainly has like-minded friends that he has made through social media rather than real life.

2. The applicant claimed that he and his former partner decided to leave Malaysia in 2017 so that they could start a family and live a normal life. He said that in Malaysia they could not live openly. He fears returning to Malaysia because they will be subject to threats and harassment because people in Sabah, in particular people from the Muslim community, have an aversion to people who identify as LGBTI+.

3. The applicant described his life as a gay man in Malaysia. He said he met his former partner [in] May 2012 at a harvest festival in Sabah. They formed a relationship in secret. They lived together in Malaysia from 2013 until 2017 but told everyone they were friends.

4. The applicant described an incident which he says occurred in 2013. He said that he and his former partner were celebrating their first anniversary at a pub and because they had been drinking they decided to stay the night at a hotel nearby. At check-in the receptionist called them ‘faggots’ and was reluctant to give them a key card. The receptionist also made derogatory comments about what they would do in the hotel.

5. The applicant described a further incident the next day. He said that he and his former partner were holding hands in public. They were attacked by a group of people including those wearing ‘hijab’ or traditional Muslim dress. The group started calling to them and grabbing at them and calling them names. They threatened them that if they kept holding hands they would report them to the police.

1. The applicant claims he cannot report these incidents and threats to the police because he is fearful because homosexuality is illegal in Malaysia. He also said that there is no safe place that he can move to within Malaysia. When he lived in Malaysia he had to hide who he was to avoid harm. The applicant stated that in Malaysia he suffered mental and emotional harm because of the treatment of homosexuals and the propaganda against the LGBTI+ community. He described the challenges of Nur Sajat, a transgender woman, who had to escape Malaysia and seek asylum in Australia after she was wanted on charges of insulting Islam by dressing as a woman and she was mistreated by the authorities.

2. The applicant’s demeanour changed significantly when asked about his life as a gay man in Australia. His face lit up. He said that he is very happy that he can express himself as gay and that he finds that people don’t define or judge him as a gay person. He works in hospitality with members of the gay community who are themselves and who are working and this makes him feel validated. He finds he can identify with them and make connections and grow as a person in the community. He said they inspire each other and he can be more confident and comfortable in himself. He advised that he is not in relationship at the moment. He and his former partner broke up in 2023 but they have both moved on. He is still friendly with his former partner and his new partner. They move in different circles but sometimes the circles overlap. He seeks to remain in Australia where he can live a peaceful life as a gay man.

3. While there were some minor inconsistencies between the incidents described in the protection visa application and the evidence given at hearing, I consider that these may be attributable to using an interpreter and the fact that the applicant’s former partner wrote the application with input from the applicant. He did not write it himself. I am satisfied, based on the applicant’s compelling and credible evidence given at hearing that he is a member of the particular social group of homosexuals. I accept that if returned to Malaysia the applicant would continue to live life as a gay man but that he would do so in secret and that he would not be able to live openly, marry or have a family as he aspires to do in Australia.

4. I have had regard to country information about the treatment of the LBGTI+ community in Malaysia in assessing the applicant’s claims for protection.

5. The most recent Department of Foreign Affairs and Trade (DFAT) report1 corroborates the applicant’s claims that Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. This is broadly supported by reports from the United States Department of State, the United Kingdom Home Office, and human rights organisations including Human Rights Watch, Suaram, ILGA World and the International Commission of Jurists2. Article 377A of the Malaysian Penal Code defines ‘carnal intercourse against the order of nature’ which Article 377B penalises with imprisonment of between five and twenty years, along with whipping. Numerous state-level syariah-based laws also prohibit both same-sex relations and non-normative gender expression.

1 DFAT, “Country Information Report Malaysia”, 29 June 2021

2 US Department of State, 'Country Reports on Human Rights Practices for 2022 - Malaysia', 20 March 2023; UK Home Office, ‘Country policy and information note: sexual orientation and gender identity or expression, Malaysia’ June 2020 Updated 22 September 2022', 22 September 2022; Human Rights Watch & Justice for Sisters, 'I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia', 10 August 2022; Human Rights Overview Report on Malaysia 2022', 6 December 2022; ILGA World, Kellyn Botha, ‘Our identities under arrest: A global overview on the enforcement of laws criminalising consensual same-sex sexual acts between adults and diverse gender expressions Geneva: ILGA, December 2021; and International Commission of Jurists,’ Invisible, Isolated, and Ignored Human Rights Abuses Based on Sexual Orientation and Gender Identity/Expression in Colombia, South Africa and Malaysia’, 2021.

1. DFAT reports that the former BN government was strongly opposed to the ‘promotion’ of LGBTI issues, and had committed to a five-year action plan to address ‘social ills’ that focused to a large degree on the LGBTI community. Key elements of the action plan included rehabilitation programs for LGBTI individuals, prevention seminars for parents and students, and enforcement of laws and policies prohibiting the public ‘glamorisation’ of LGBT lifestyles, including through restricting the online space for LGBTI activities and individuals. DFAT reports that despite the general improvement in the human rights climate following the change of government in May 2018, in-country sources report that LGBTI issues remain sensitive. Notwithstanding its general reformist nature, the previous PH administration was generally unwilling to engage with LGBTI advocacy groups or to consider any substantial changes in its approach to LGBTI issues, including through its rhetoric. In September 2018, for example, then-Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBT culture’, while in March 2019 the Tourism Minister responded to a question about whether Malaysia would welcome gay foreign tourists by denying the existence of gay people in Malaysia. An aide reportedly later clarified that the minister was echoing the government’s stance that LGBTI individuals were not officially recognised in the country. The current PN coalition is even less well-disposed towards LGBTI activities and individuals.

2. DFAT reports that successive governments’ stances on LGBTI issues apply to all within Malaysia, including foreigners, they are especially pronounced for Malays/Muslims due to the fact that a variety of LGBTI behaviours constitute syariah offences as well as offences against the penal code. Human Rights Watch reported in 2019 that the increased political competition in the Malay heartland, ‘presumed to be socially and religiously conservative, [had] caused politicians from across the political spectrum to emphatically adopt anti-LGBT positions.’ In-country sources report the conditions for transgender Malaysians are worsening and that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition. JAKIM and other state religious authorities have occasionally conducted raids on LGBTI events. In August 2018, for example, authorities raided a Kuala Lumpur nightclub known to be popular among the LGBTI community, detaining twenty men. JAKIM subsequently ordered the men to undergo counselling for ‘illicit behaviour,’ while a government minister released a statement hoping that the raid would ‘mitigate the LGBTI culture from spreading in our society.’

3. DFAT reports that prosecutions in relation to LGBTI activities have typically been in relation to state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,045) after convicting them of allegedly attempting to have sexual intercourse. The caning, which was carried out in a courtroom in front of 100 witnesses, was reportedly the first such sentence to be ordered in relation to a LGBTI-related case since 2010. In November 2019, the Selangor Syariah High Court convicted five men under

   syariah-based statutes for attempting to conduct sexual relations ‘against the order of nature’ in a private apartment 12 months earlier. The court sentenced four of the men to six months’ imprisonment, six strokes of the cane, and a fine of MYR4,800 (AUD1,520), while the fifth man received a sentence of seven months’ imprisonment, six strokes of the cane, and a fine of MYR4,900 (AUD1,550). Human rights observers criticised the punishments as a breach of human rights, and noted that the presiding judge had made numerous prejudiced remarks during the case that were unrelated to the facts in issue.

4. Authorities at federal and state level have promoted so-called rehabilitation or re-education programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. The Minister for Religious Affairs claimed in October 2018 that 1,450 people had ‘voluntarily’ taken part in outreach programs organised by JAKIM since 2011. A number of state governments also run re-education programs for LGBTI individuals. In addition to the

programs run by official bodies, a number of private centres also reportedly offer ‘treatment’ to LGBTI individuals through religious counselling.

1. Overall, DFAT assesses that there is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. Authorities have undertaken efforts to restrict LGBTI activities online. Many members of the LGBTI community reportedly hide their identity to avoid harassment, familial ostracism, and/or violence. Reports of violence by family members towards LGBTI individuals are common, and society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTI.

2. The US Department of State and a number of non-government organisations3 have all reported on the Malaysian government’s laws and programs and public vilification of LGBTI people, providing an environment for societal discrimination and harassment and violence against LGBTI people in Malaysia. Older articles note4 that the Penal Code laws, whilst rarely used, hang over the heads of the LGBTI community and are available as a tool to intimidate, harass, extort and exploit them. A panel of journalists and activists5 discussing hate crimes against the LGBTI community has concluded that rising Islamisation in the country was leading to growing intolerance and increased hate crimes, and it was said that LGBTI people faced increasing persecution on a daily basis, and that harm on the basis of religious beliefs overstepped the Federal Constitution and its protections. The United Nations Refugee Agency6 has urged protection for LGBTI refugees from Malaysia stating that LGBTI people are exposed to disproportionate levels of arbitrary detention, police abuse, violence and extrajudicial killings by both State and non-State actors, as well as abuse in medical settings, including forced sterilisations and so-called ‘conversion therapies’. Their right to freedom of expression, assembly and association is often also unduly restricted.

3. At hearing I found the applicant’s oral evidence detailed and persuasive and consistent with the country information summarised above. On the evidence before me I accept that the applicant is same sex attracted and describes himself as gay and he is a member of the LGBTI+ community. I accept that he has been harassed by members of the Malaysian Muslim community on suspicion of being gay. I also accept that the applicant was unable to disclose his former relationship publicly or to his own family when he lived in Malaysia because of fear of harassment, discrimination and possible harm and that for this reason he modified his behaviour to avoid harm.

4. I consider that the country information outlined above is indicative of ongoing discrimination against LGBTI+ people in Malaysia. While discrimination of itself may not meet the threshold of serious and significant harm, the country information supports a view that Malaysia is becoming less tolerant of LGBTI+ people rather than more, that the laws create a chilling effect and can and have been reported to have been used to harass, extort and exploit LGBTI+ people. I note the information that the legal situation and the Islamisation of Malaysia provides a degree of impunity for hate crimes and I find that the authorities will not protect the applicant from further harassment, nor from any intimidation, exploitation, extortion or hate crime he may experience. I find that the harassment, intimidation,

   
   

   3 US Department of State, “Malaysia 2014 Human Rights Report”; OutRight Action International, Malaysia must recognize and stop hostilities towards LGBT people”, International Gay and Lesbian Human Rights Commission, “Violence: Through the lens of lesbians, bisexuals women and trans people in Asia”, May 2014.

   4 Lim S.H., “No sex party going on at Penang fitness centre, say those arrested‟, Fridae website, 22 November 2007.

   5 Mei Lin, M., “Growing intolerance of LGBTIQ community due to Islamisation, forum told”, Malay Mail Online, 21 August 2016.

   6 Joint OHCHR/UNHCR Press Release, “UN rights experts urge more protection for LGBTI refugees”, 1 July 2019.

exploitation, extortion and hate crimes raised in the country information may reach the level of serious harm, especially on a cumulative basis, amounting to significant physical harassment or significant physical ill-treatment.

1. Given the applicant’s oral evidence about his fears of discovery and the applicant’s experiences growing up in Malaysia, and the country information noted above, in particular the DFAT report, I find that the applicant remained discreet about his sexuality, and relationship, in Malaysia not by choice, but at least partly because he feared being harmed by authorities or those in society emboldened by the anti-LGBTI+ sentiments of political and religious leaders. I find that the applicant, in relation to his sexuality, remained discreet due to the threat of harm and in order to avoid persecution. Relevantly, if he were to return I find that he would feel compelled to remain discreet about his sexuality for these reasons. I find that a modification of his behaviour to avoid a real chance of persecution would essentially be persecutory.

2. I find that the chance of the applicant suffering serious harm for reasons of his sexual orientation, in the form of significant physical harassment or significant physical ill-treatment from the authorities or those in society emboldened by the anti-LGBTI+ sentiments of political and religious leaders, if he lived openly as part of a gay couple, or expressed his sexuality openly, would not be remote or far-fetched. I further find on the country information that such threat of serious harm would be present throughout the country.

3. I accept that the laws criminalising homosexual acts are rarely enforced, but these laws have not been repealed and I consider that the law, and the ongoing anti-LGBTI+ sentiments of political and religious leaders provides an environment permissive and conducive to discrimination, harassment and violence against LGBTI+ people in Malaysia. I note the applicant’s evidence about this and his fear of approaching the authorities in Malaysia and I am not satisfied that the State is willing to offer effective protection measures to the applicant, nor am I satisfied that the applicant would be able to access effective protection measures if returned to Malaysia now or in the reasonably foreseeable future.

4. I find that the applicant’s membership of the particular social group of the LGBTI+ community is the essential and significant reason for the persecution, and that the persecution involves ‘serious harm’ as it amounts to significant physical harassment and significant physical ill-treatment and that the persecution involves systematic and discriminatory conduct.

5. I find that there is a real chance, that is, one that cannot be discounted as remote, that the applicant would suffer persecution for reasons of his membership of the particular social group if he returns to Malaysia, now or in the reasonably foreseeable future.

6. Therefore I am satisfied that the applicant’s fear of persecution in Malaysia is well-founded, and I find that the applicant is a refugee.

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

DECISION

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

Kylie Allen 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.

…