1516634 (Refugee)

[2017] AATA 2668

1516634 (Refugee) [2017] AATA 2668 (31 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516634

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Meena Sripathy

DATE:31 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2017 at 6:21pm

CATCHWORDS

Refugee – Protection visa – Nepal – Particular social group – De facto relationships – Single women – Revolutionary groups – Fear of social stigma

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994 Schedule 2

CASES
SZQNO v MIAC [2012] FCA 326

Iyer v MIMA [2000] FCA 52

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 [in] November 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Nepal, applied for the visa [in] May 2015. The delegate refused to grant the visa on the basis that the applicant’s claimed fear of harm was not related to any of the reasons set out in s.5J(1) of the Act and therefore she was not a person in respect of whom Australia had protection obligations under s.36(2)(a). The delegate also found the claimed harm was not significant harm within the meaning of s36(2A) and was not satisfied that there were substantial grounds for believing that there was a real risk the applicant would suffer significant harm for the purposes of s.36(2)(aa) of the Act.

3. The issues in this review are whether there is a real chance, if the applicant returned to Nepal, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Nepal, there is a real risk that she will suffer significant harm.

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

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. 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.

7. 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 themself 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).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

    Evidence before the Department

11. Information in the application form indicates the applicant is [an age] year old woman from Tanahun, Nepal. Prior to her arrival in Australia in 2009, she resided for over 10 years in Pokhara, Kaski Nepal.  She states her religion as Hindu/Buddhist, and her marital status as separated. She indicated she was in a relationship from January 2012 to March 2015.  Her family comprises her father and sister who reside in Nepal and a [Relative A] who resides in [Country 1]. She states she is not in contact with her relatives outside Australia.  She travelled to Australia in January 2009 legally on her Nepali passport issued in 2007 and valid to [2017] as the holder of a student visa.  She has not returned to Nepal since her first arrival in Australia.   She completed secondary school in Nepal, and commenced but did not complete a tertiary degree.  In Australia she completed a [course] from January 2009 to December 2010. She gave no details of past employment in Nepal, but has been working in various jobs in the [course related] sector in Australia.

12. The applicant provided a Statutory Declaration dated [in] May 2015 which contained details of background and circumstances, and reasons why she cannot return to Nepal.  Included in the information she provided are the following claims:

    ·She was raised under strict control by her grandmother, after her parents went to [Country 1] in [year], often suffering harsh punishments which would have been considered child abuse in Australia.

    ·After her parents returned to Nepal in 1997 she and her family moved to Pokhara. 

    ·She describes various activities she engaged in during her school and post school years which were disapproved of by her grandmother who considered her a rebel and improper.

    ·In 2008 she participated in [a youth competition in] Pokhara and won second runner up position and secured [an associated title]. Many members of the neighbourhood congratulated her and she participated in a follow up competition, [named].  As a result of the political conditions in Nepal at that time and female revolutionary groups against [such competitions], it was made a talent hunt and later a cultural show.

    ·On the day of the show, a female revolutionary group came in and disrupted the show.  A big group formed and they took refuge in a nearby shop for safety. She describes coming out into the crowd and her confrontations with the mob.

    ·The police provided no protection to them.  Later the district court refused to take the case against the revolutionary group taken up by the director of the [talent hunt].

    ·After this incident her father encouraged her to apply to study abroad so she could live her life how she wanted. She felt her life was constrained in Nepal  because of what had happened to her in this incident.

    ·She applied for and was granted a student visa in Australia, and completed several courses until December 2010. 

    ·In March 2011 she applied for a [different temporary] visa through an agent called [name] and describes what happened with this application.  She paid the agent money but was never contacted again about the matter.  She discovered in May 2012 that her visa application was refused in April 2012. She describes the further processes she took after that, leading to an appeal to the Federal Court which was ultimately unsuccessful, following a hearing in April 2015.  She was unable to take the matter further because of financial difficulty but she considered the outcome unjust.

    ·At the end of 2011, she met a Nepali man and they began dating in early 2012 and later lived together. They lived together until they separated in March 2015.

    ·She cannot return to Nepal now because she has lived with a man out of wedlock, and she is still an unmarried woman and she is fearful of how she will be treated in Nepal. She believes she was an eyesore even before she left Nepal but she will be seen even worse now. 

13. The applicant attended an interview with the delegate [in] November 2015.  The Tribunal has listened to the recording of this interview, a copy of which is held on the Department’s file.  Included among the information provided at the interview, as recorded in the delegate’s decision record, she said her father, paternal grandmother and [Relative A] live together in Pokhara.  Her sister is married and owns a shop in Pokhara. Her sister’s husband is studying in [Country 2].

14. The applicant appeared before the Tribunal on 10 October 2017 to give evidence and present arguments. She presented a new machine readable Nepalese passport issued in [2015], valid to [2025]. A summary of evidence she gave to the Tribunal follows. She currently lives in [state] in a share house with several other people and works full time in a [business]. She is single.

15. In Nepal prior to coming to Australia she completed secondary school and started a [tertiary course].  In 2009 she came to Australia to study, and completed a [course] at the end of 2010.  She did not study any further.  Following completion of her qualification she lodged an application for a [different temporary] visa and this is where everything went wrong for her here.  She confirmed that she trusted people in Australia and was let down by them.  It was always her intention to obtain a visa and stay in Australia for her career and future.  The applicant confirmed that she did not attend the Migration Review Tribunal hearing for her [different temporary] review on the advice of her representative. She appealed this decision to the Federal Court, but was unsuccessful.  Ultimately she could not afford to take the matter any further.  Around this same time her relationship of the past 3 years ended.  She had met a Nepali man in 2012 and they lived together for some 3 years. She came to know he had made arrangements to get married in Nepal and left him for this reason.  This was around March or April 2015.  It was in this context that she lodged the present application.

16. The Tribunal asked the applicant about her family composition. She has a [Relative A] and grandmother in Pokhara, Nepal.  Her father passed away in July 2016, following an accident when he returned to the village.  Her sister is married and lives separately, with her husband’s family members. Her sister’s husband is still away studying in [Country 2].  His parents are also abroad.  Her sister runs a shop of her own.  Her [Relative A] is not working or studying at present.  She sends money to support her [Relative A] and grandmother, who also has some small amount of pension from her late husband.  The applicant said her father was not working before his death last year. He has not worked for many years. The family was supported by her grandfather’s double pension.  She said her father left Nepal in 1990 for [Country 1] and returned in 1997. He left because of something to do with politics but she does not know any details because her father never told her. She does not know if he was involved in politics since his return because he never talked to her about it.  She does not follow political developments in Nepal.  The applicant said since she came to Australia, her grandfather died in 2011, her mother died in 2012 and her father died in 2016.  She has not returned to Nepal since she arrived here in 2009. 

17. The Tribunal asked the applicant why she applied for this visa.  She said at that time she was afraid of returning to Nepal because she had failed here to get a visa and did not want to be a burden on her family. She was afraid of not being accepted by society there and afraid of what people would say about her. It was all too fresh at that time.

18. The Tribunal discussed with the applicant her experiences in Nepal before she came to Australia.  She confirmed the matters discussed in her statement.  She said her grandmother was strict and harsh with her as a child, but it was the way people were at that time. She confirmed that she now feels sorry for her grandmother and she is in poor health as she suffers from [specified medical conditions]. The applicant is in contact with her regularly and is not fearful of her.  Her grandmother depends on her for support. The Tribunal asked the applicant about the incidents in 2008 with the [youth competitions].  She confirmed she was not physically harmed but it was a scary time.  The group that stopped the show was a woman’s revolutionary group. She has not heard anything from anyone from there since then. She was not involved in any other activities after that incident as her father did not allow her. 

19. When asked what she is afraid of now the applicant said she is not afraid of harm.  She has lost opportunities here and her career is doomed and she is afraid for her future for this reason. She will be judged by others because of her return and as a single woman so she will have to prepare mentally for that.  Other than that, she has no other issues about returning to Nepal.

20. The Tribunal put to her that on the basis of her evidence, she does not appear to have a subjective fear of persecution in the sense of serious harm or significant harm. She agreed with this.  It explained that if she does not have a subjective fear, it is not necessary to consider if there is an objective basis for it, but in any event the country information before it, suggests there is not a real risk of serious harm or significant harm to her in Nepal.  She agreed with this. She acknowledged that she applied for the visa because she was not ready to return to Nepal at that time. 

    FINDINGS AND REASONS

    Nationality

21. On the basis of her evidence to the Tribunal, and new and old Nepalese passports, the Tribunal accepts the applicant is a national of Nepal and considers Nepal is her country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria.

    Consideration of claims

22. The applicant gave as her reasons for not being able to return to Nepal in her application that she lived with a man out of wedlock, she is an unmarried woman and is fearful of how she would be treated in Nepal.  She provided details of her life and experiences in Nepal prior to coming to Australia, including harsh treatment as a child at the hands of her grandmother, and her experiences during her involvement in a [youth competition] in 2008 which was disrupted by a revolutionary group. In her evidence before the Tribunal she stated that she is not fearful of harm upon return but fears she will be judged by the society and that her career prospects are doomed.  She made no further mention of her claims relating to her past relationship or single status.

23. The applicant has been commendably candid and honest before the Department and Tribunal, her evidence throughout the application has been substantially consistent and she has not sought to embellish or exaggerate her claims. On this basis the Tribunal finds her a credible and honest witness and makes the following findings on this basis. It finds she came to Australia as a student in 2009 and studied and completed a qualification. It accepts that her intention was to obtain a [temporary] visa and remain in Australia to live and work on that basis, but she unknowingly became caught up in a widespread migration fraud committed by the migration agent she had engaged. Her application for a [different temporary] visa was refused by the Department because of a fraudulent document submitted by the agent, and the refusal was subsequently affirmed by the Migration Review Tribunal. She unsuccessfully appealed this decision to the Federal Court and was unable to pursue the matter further due to financial constraints. The Tribunal accepts, on the basis of the applicant’s evidence, that she was involved in a relationship with a Nepali man for around 3 years, and lived with him out of wedlock.  It accepts she is at present single.  In relation to her experiences in Nepal prior to coming to Australia, the Tribunal accepts her claims, detailed in her statement of May 2015, about her treatment as a child at the hands of her grandmother and experiences participating in [youth competitions] in 2008.  The Tribunal finds that, since coming to Australia, her grandfather, mother and most recently, father, have passed away. In Nepal she now has only her [Relative A] and grandmother who reside together and her sister who is married and lives with her husband’s family members.  

24. Having considered the applicant’s circumstances, and relevant country information[1], the Tribunal accepts that as a single woman returning to Nepal she may suffer social stigma, patriarchal attitudes and stereotypes and be vulnerable to some extent to violence. However, she has family support, is equipped with qualifications, skills and experience from her years in Australia and has indicated to the Tribunal she does not hold a subjective fear of harm upon return. She states her fear is of being judged as a failure and being a burden on her family. However, the Tribunal considers these are not matters that constitute serious harm as contemplated by that term in s5J (5).

    [1] DFAT Country Information Report, Nepal, pp14-15; WHR Brief, Status of Single Women in Nepal, January 2017 >

    On the basis of the applicant’s evidence, the Tribunal therefore finds that she has no present fear of serious harm upon return to Nepal, for any reason, in the reasonably foreseeable future. As it finds she has no subjective fear, there is no need to consider whether there is an objective basis for the claimed fear, or indeed whether other aspects of the refugee criterion are satisfied.[2]  

    [2] SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

25. Although she did not mention before the Tribunal her fear of harm arising from her past relationship in Australia, the Tribunal has considered this claim made in her original application.  Her father and grandfather have passed away in recent years.  She has maintained her relationship with her grandmother and siblings, who have been, and continue to be, financially reliant upon her.  She has made no mention of any other relative or community members who have indicated their knowledge of her life in Australia or disapproval of her to suggest she is at risk of harm on this basis upon return. There is therefore no evidence before the Tribunal to indicate that information of her past relationship is known to anyone who could cause her problems or harm and on this basis the Tribunal is not satisfied that there is a real chance she will face harm upon return for this reason.

1. The Tribunal has also considered whether the applicant will face harm arising from her experiences in the [youth competitions] she participated in in 2008.  Given her evidence about this incident and her evidence that she had no other interactions with members of the revolutionary group involved since then, and neither she nor any family members have been involved in any political activity since then, the Tribunal not satisfied that there is a real chance she will face harm for this reason.

2. In relation to the general security situation in Nepal, DFAT’s most recent Country Report on Nepal[3] states that the overall security situation has dramatically improved since the end of the civil war conflict in 2006, and elections for the second Constituent Assembly were held in November 2013, although it is recognised that poverty, unemployment, weak rule of law and a culture of impunity continue to be causes of insecurity in Nepal. The Tribunal also acknowledges the devastating effect of the earthquake in 2015 which killed an estimated 8891 people and injured many thousands more, and accepts that this placed further burdens on the country and individuals there.         

   [3] DFAT Country Report on Nepal, 21 April 2016, p 8

3. Taking into account its findings, the abovementioned independent information and the applicant’s claims individually and on a cumulative basis, the Tribunal is not satisfied that there is a real chance the applicant will face persecution, in the sense of serious harm, for reasons of her status as a single woman, or for any other reason mentioned in s5J(1). Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Complementary Protection criteria

4. 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).

5. Having regard to the findings made above regarding the applicant’s circumstances and past experiences in Nepal, the Tribunal is not satisfied that there is a real risk she will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to Nepal. Specifically, the Tribunal has considered the applicant’s claims that she will be judged and be a burden on her family upon return.  It does not accept that being judged or imposing a burden on her family, financially or otherwise, is ‘significant harm’ for the purposes of this criteria and therefore, while sympathetic to her concerns about the burden she may place on her family upon return, it is not satisfied there are substantial grounds for believing that there is a real risk she will suffer significant harm for this reason, if she is returned to Nepal. 

6. The Tribunal has considered independent information referred to above about the security situation generally in Nepal. It finds, on the basis of the DFAT report cited above, that the security situation in Nepal has improved significantly, and there were free and fair elections in November 2013, but also accepts that there is a degree of insecurity in the country as a result of political protests, poverty, unemployment and a culture of impunity. However, having regard the applicant’s circumstances and available family support, in respect of a claim of fear of harm from generalised violence that may arise on the material, the Tribunal considers that to the extent that the applicant faces a real risk of significant harm as a civilian victim of generalised violence, it is one faced by the population of the country generally and not faced by her personally and on that basis there is taken not to be a real risk of significant harm in respect of her under s36(2B) of the Act.

7. 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

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

   Meena Sripathy
   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.

   …

   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 them 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.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (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.

   …