2315190 (Refugee)
[2024] AATA 2506
•12 June 2024
2315190 (Refugee) [2024] AATA 2506 (12 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER: 2315190
COUNTRY OF REFERENCE: Indonesia
MEMBER:Robert McLaughlin
DATE:12 June 2024
PLACE OF DECISION: Canberra
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 12 June 2024 at 11:19am
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – bisexual male – struggles with heterosexual monogamy in marriage – strong ongoing attraction to men – agent of harm – conservative Indonesian society – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa on 15 November 2018. The delegate refused to grant the visa on the basis that they were ‘not satisfied that the applicant as a bisexual male with their profile, would face a real chance of serious harm’ if they were to return to their home region.
The applicant appeared before the Tribunal on 30 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing and provided an oral submission at the conclusion of the hearing. The applicant’s Wife also attended the hearing by phone as the support person for the applicant.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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 issue in this case concerns the applicant’s sexuality. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.
Preliminary matter: Nationality and identity
The applicant provided a copy of his Republic of Indonesia passport to the Department. The Tribunal accepts that the applicant is who he claims to be and that he is a national of Indonesia. The Tribunal also accepts that the applicant has no right to enter and reside, whether temporarily or permanently, in a third country. This is because the applicant has no visa for any such country notated in his passport, and there is no other information to suggest he has any such right.
Claims made prior to the hearing
The applicant submitted the following claims to the Department in a statement attached to his application for a protection visa in November 2018:
· That he is a gay male from Indonesia, and first realised his attraction to males in junior high school.
· That since being in Australia he ‘has come out of the closet’.
· That if he returned to Indonesia, he would have to lead a ‘discrete, pressured life’ as he had previously done in Indonesia, but that he can not now hide his sexual identity.
· That he fears growing Islamic extremism and homophobia in Indonesia.
· That he would face degrading and inhuman treatment if returned to Indonesia.
In June 2023, the applicant provided a further statement to the Department. This statement claimed that:
· The applicant now considered himself bisexual. The statement also provided more detail in relation to the applicant’s realisation of his homosexuality and early homosexual encounters in Indonesia.
· That he had commenced dating a woman in Australia but knows that his attraction to men is still strong.
· That in 2016, whilst visiting a previous partner (Mr A) in Indonesia, they had been attacked by a group offended by their presumed homosexuality.
· That this incident had been reported to Police (and a document verifying that report was provided to the Department).
· That the applicant had previous homosexual relationships with Mr A in Indonesia, and Mr B in Australia, and with several other named men.
· That the situation for LGBTQI+ people in Indonesia was deteriorating, and that if returned to Indonesia, he faced the prospect of serious harm.
· That he also fears discrimination based on being a gay ethnic Chinese Christian.
Material provided prior to the Tribunal hearing
Prior to the hearing, the applicant furnished further material to the Tribunal:
· Statement dated May 2024 from the applicant, which noted his recent marriage and his struggle to remain heterosexually monogamous with his Wife.
· Statement dated May 2024 by the applicant’s Wife, which explained their struggles with the applicant’s sexuality and reported on a recent incident of homosexual infidelity by the applicant.
· Submission dated June 2024 by the applicant’s representative, which provided details as to the evolving situation in Indonesia in respect of LGBTQI+ discrimination and incidents of harm.
Material provided subsequent to the Tribunal hearing
Subsequent to the hearing, the applicant provided additional further material to the Tribunal. This material encompassed:
· Statement with certifications dated June 2024 by Mr A, regarding his relationship with the applicant, and the 2016 incident in Indonesia.
· Additional statement dated June 2024 by the applicant’s Wife, regarding the circumstances of her discovery of the applicant’s 2023 homosexual infidelity incident, and their struggle to maintain their marriage.
· Additional submission by the applicant’s representative, with enclosed news reports on escalating discrimination against, and incidents of harm to, LGBTQI+ people in Indonesia, including in Bali.
The hearing
At the hearing, the Tribunal invited the applicant to clarify and expand upon his claims. The three key matters around which the claims and evidence coalesced were: The applicant’s claim as to homosexuality / bisexuality, and his continuing attraction to men despite his marriage; the 2016 incident; and the harms feared if returned to Indonesia.
The Tribunal accepts that gay / bisexual men in Indonesia are part of a particular social group for the purposes of the refugee criterion.
The applicant did not expand upon any claims in respect of Christianity or Chinese ethnicity. However, for completeness, these matters were also assessed by the Tribunal.
Claim as to sexuality
The applicant provided extensive detail as to his claimed sexual realisation and orientation from junior high school until he came to Australia. This detail included names of partners, details as to meetings and events, an account of difficulties associated with remaining ‘in the closet’, and an account of his Sister confronting him, in Australia, with suspicions as to his sexuality.
The applicant detailed his struggle with his attraction to men (his ‘disease’ as he called it) and the challenges that this created in relation to his strong desire to make his marriage work
Claim as to the 2016 incident
The applicant provided extensive detail as to the claimed 2016 incident where he and Mr A were confronted by an angry group of four local men who claimed that the applicant and Mr A were engaged in ‘immoral activity’. This incident resulted in the applicant being slapped on the face and then leaving the area.
This incident was reported to the Police. An official document recounting this report was provided in evidence to the Department.
Claim as to harms feared if returned to Indonesia
The applicant explained that his fear of persecution and serious harm if returned to Indonesia was based on four concerns.
First, the applicant claimed that the 2016 incident had left him traumatised and fearful of discovery in Indonesia, and of further assaults and group violence that would be directed at him based on his sexuality.
Second, the applicant claimed that the situation for LGBTQI+ people in Indonesia was deteriorating. In this regard the applicant relied upon his own experience and the extensive reportage provided by himself and his representative as to the nature and scope of discriminatory incidents and policies, and the implications of soon to come into effect criminal laws, in Indonesia over the last decade. The applicant and his representative also referred extensively to DFAT country information in this regard.
Third, the applicant claimed that he could no longer live as a secret gay / bisexual man in Indonesia. In this regard, whilst his marriage would provide some public mitigation of this concern, he was nonetheless deeply worried that he could not hide his bisexuality and that bisexuality was as discriminated against as homosexuality in Indonesia.
Fourth, the applicant claimed that even though he was trying very hard to live a monogamous life with his Wife, he greatly feared that he would still stray and engage in homosexual relationships and that this would expose him and his Wife to harm in Indonesia.
Claim as to Chinese ethnicity
The applicant did not advance any specific claim as to discrimination based in his Chinese ethnicity. Nor did he provide details of any relevant incidents of harm on this basis.
However, the applicant asserted that the majority in Indonesia is ‘Indonesian’ Muslim, and that this social group is generally conservative and uses ethnicity as one of many reasons to discriminate against and persecute Chinese Indonesians.
Claim as to Christianity
The applicant did not advance any specific claim as to discrimination based in his Christianity. Nor did he relate any specific incidents of discrimination or harm on this basis.
However, the applicant asserted that Christianity is a minority faith in Indonesia, and that persecution does occur on the basis of faith in Indonesia. The applicant also noted that he is not a practicing Christian.
Assessment of credibility and evidence
In assessing the credibility of the applicant’s evidence, the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’, or that it is for the reason claimed.
A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the applicant must provide material, in as much detail as is necessary, to enable the Tribunal to establish the relevant facts as claimed. The Tribunal is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant[1], or to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 170.
In determining whether an applicant is entitled to protection in Australia, the Tribunal is therefore required to make findings of fact in respect of the claims advanced by the applicant. This may require an assessment of the applicant’s credibility, as is the situation in this case. In this regard, the Tribunal is aware of the need for, and importance of, being sensitive to the difficulties applicants may face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to applicants who are generally credible, even if unable to substantiate all of their claims.
Overall assessment as to credibility
The Tribunal accepts that the applicant gave generally credible evidence. He provided extensive detail and significant further material at the hearing, and after the hearing. This evidence was on the whole consistent, coherent, and credible.
As to the claim regarding sexuality
The Tribunal accepts that the applicant is a bisexual male and that he struggles with both heterosexual monogamy in his marriage, and his strong ongoing attraction to men.
This finding is based on the detailed and credible evidence provided by the applicant at the hearing, the consistency of this evidence with his pervious statements, and the additional corroborative material provided at and subsequent to the hearing.
In this regard, the statement from Mr A and the two statements by the applicant’s Wife were also credible, consistent with, and corroborative of the applicant’s account of his sexuality.
As to the 2016 incident
The Tribunal accepts that the 2016 incident in Indonesia occurred.
This finding is based on the applicant’s evidence at the hearing, and the consistency of this evidence with his second and third statements prior to the hearing.
This finding is also based on credible corroborative material regarding this incident – primarily the Police report tendered as evidence to the Department, and the statement by Mr A provided to the Tribunal subsequent to the hearing.
As to the harms feared if returned to Indonesia
The Tribunal accepts that the applicant fears serious harm if returned to Indonesia.
This finding is based on its assessment that the four reasons the applicant provided as to why he fears being ‘outed’ and then persecuted in Indonesia are credible and consistent with both the applicant’s personal experience, and his claims as to difficulties in ‘overcoming’ his ‘disease’ of same sex attraction. This fear is exacerbated by his clear fear that he will be unable to stop himself engaging in future homosexual liaisons.
In this regard, the Tribunal notes that the agent of harm need not be state officials but can be ‘private actors’, so long as the state appears to be unwilling to protect its citizens from the discriminatory conduct. In the applicant’s case, the private actor is, broadly, conservative Indonesian society, as represented in the 2016 incident.
DFAT Country Information on this issue includes reference to a degree of stigmatisation of homosexuality. This DFAT Country Information, which the Tribunal accepts as highly credible on the basis of its official source and provenance, assesses that:
‘LGBTI people face a moderate risk of societal discrimination: traditional views about sexuality and gender can restrict participation in the workforce and the broader community. People perceived to be LGBTI may face a risk of violence, particularly if living in religiously conservative areas and communities… LGBTI individuals face a moderate risk of official discrimination due to national laws that discriminate against them based on their sexuality, and due to official attitudes.’[2]
[2] DFAT Country Information Report: Indonesia, 24 July 2023, para 3.111.
The Tribunal also accepts that the applicant’s fear is objectively supportable on the basis of other material before the Tribunal. The Tribunal also accepts that the harm feared by the applicant includes serious harm.
In this regard, in addition to the country information above, the Tribunal noted the extensive portfolio of news and other reports of incidents of harm and discrimination in relation to LGBTQI+ people in Indonesia, including (as reported in several of these items) in the previously more tolerant province of Bali. This material indicates that:
· Federal laws do not criminalise consensual homosexual activity in Indonesia, however, vaguely defined laws related to pornography and facilitating prostitution are used to prosecute members of the LGBTQI+ community throughout the country.[3]
· Members of the LGBTQI+ community are targeted by police.[4]
· LGBTQI+ persons avoid interaction with police, due to corruption, bias, threats of extortion and violence perpetrated against them by members of the police force.[5]
· In a number of reported cases, officials have failed to protect LGBTQI+ persons from societal abuse.[6]
· In December 2022 the Government of Indonesia passed a revised Criminal Code, including provisions which criminalise cohabitation and adultery. As same-sex marriage is illegal in Indonesia, many human rights observers are concerned that the law could in effect criminalise same-sex relationships.[7]
[3] US Department of State 'Country Reports on Human Rights Practices for 2022 Indonesia', 20 March 2023, pp 1, 38.
[4] DFAT Indonesia Report at [3.98]; USDOS 2023 Report, page 38-39; HRW 2022 Report page 331.
[5] US DoS 2023 Report, p 38.
[6] US DoS 2023 Report, p 38.
[7] DFAT Indonesia Report 2023, para 3.10; HRW 2024 Report, Indonesia pp.305-309; Amnesty International Report 2022/23: ‘The state of the world’s human rights', 27 March 2023, Indonesia, p 194.
The Tribunal therefore accepts that Indonesian authorities regularly can and do withhold protection for gay / bisexual men persecuted by private actors (noting that the Tribunal accepts that the applicant did experience such an instance in 2016), and that this amounts to discriminatory conduct.
The Tribunal therefore accepts that the applicant’s fear of serious harm goes to both mental and physical harm.
In respect of mental harm attributable to the applicant’s sexuality, the applicant credibly fears the to live a discrete life and deny his attraction to men, even if he does wish to live as a ‘regular’ married man. The applicant cannot be expected or required to live ‘discreetly’ to avoid persecutory conduct.[8]
[8] S395/2002 v MIMA (2003) 216 CLR 473.
In this regard, the High Court of Australia has confirmed that persecution involving the threat of serious harm can include ‘denial of access to employment… or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society’ if imposed for a Convention reason.[9] This persecution, to amount to serious harm, could (for example) be evident where (amongst other things), it is ‘so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned’.[10]
[9] Chan v MIEA (1989) 169 CLR 378 per McHugh J at 431.
[10] MIMA v Haji Ibrahim (2000)204 CLR 1 per McHugh J at [68].
Furthermore, forms of harm that do not constitute interference with life or liberty can still constitute persecution – including ‘measures “in disregard” of human dignity’, in appropriate cases.[11] The Tribunal accepts that the applicant has suffered mental harm on the basis of his sexuality as he was required to hide ‘who he is’ whilst in Indonesia, and that this was a matter of dignity.
[11] Chan v MIEA per McHugh J at 430.
The Tribunal also accepts that the applicant experienced an instance of physical harm (the 2016 incident) based on his sexuality, and that there is a not fanciful prospect of further harm, including more serious physical harm, if the applicant is returned to Indonesia.
An applicant who belongs to a persecuted group can still hold a well-founded fear of the serious harm even though he or she has not personally experienced that degree or quality of persecution on the basis of a Convention reason.[12] That is, as part of its assessment of harm, the Tribunal is required to consider whether, on the material before it as to treatment of LGBTQI+ people in Indonesia in a general sense (as noted above), there is a real chance the applicant might suffer these consequences.
[12] Ponnundurai v MIMA [2020] FCA 19 at [13], [15].
The totality of the applicant’s circumstances[13] indicate that in conjunction with the general situation of LGBTQI+ people in Indonesia, the applicant does face a real chance of being subjected to consequences amounting to serious harm if he is returned to Indonesia.
[13] MILGEA v Che Xiang (12 Aug 1994) unreported FCA [40].
Therefore, the Tribunal accepts that the applicant faces a well-founded fear of persecution on the basis of his sexuality, now and into the foreseeable future, if returned to Indonesia.
As to Christianity and Chinese ethnicity
The Tribunal does not accept that the applicant has a well-founded fear of persecution on the basis of his religion or his ethnicity, now and into the foreseeable future, if returned to Indonesia.
This is for two reasons.
First, the applicant could not elaborate any specific prior incidents or fears associated with his faith or ethnicity in Indonesia. Nor did he claim any particular fears in respect of these refugee criterion reasons if he was returned to Indonesia.
Second, the DFAT country information for Indonesia, which the Tribunal accepts as highly credible given its official source and provenance, assesses that:
· ‘Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians.’[14]
· ‘Christians residing in areas where they are a majority do not face either official or societal discrimination. Christians residing in areas where conservative Islam is prevalent face a low risk of societal discrimination in the form of impediments to worship. Violence does occur and there are recent high-profile examples, but this is not the day-to-day experience of most Christians.’[15]
[14] DFAT Indonesia Report 2023, para 3.12.
[15] Ibid, para 3.41.
In relation to religion, the Tribunal also noted the applicant’s own statements that he does not practice Christianity. Thus, the caveat noted above regarding potential low-level discrimination in respect of ‘impediments to worship’ in conservative Muslim areas is not relevant to the applicant at any rate.
Complementary protection
Having concluded that the applicant does meet the refugee criterion in s 36(2)(a), the Tribunal has not been required to considered the alternative criterion in s 36(2)(aa).
CONCLUSION
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Robert McLaughlin
MemberATTACHMENT - 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.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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