1602238 (Refugee)

[2018] AATA 3925

1602238 (Refugee) [2018] AATA 3925 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602238

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Angela Cranston

DATE:4 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 04 September 2018 at 1:31pm

CATCHWORDS
REFUGEE – Protection visa – Fiji – political opinion – Social Democratic Liberal Party (SODELPA) supporter – race – indigenous Fijian – employment – accommodation – detention of family member – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 January 2016 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 Fiji, applied for the visa on 19 March 2015 and stated the following:

   I left my country of birth Fiji and entered Australia legally on a [temporary] visa. I left my country seeking work and opportunities here in Australia.

   I personally don’t support the current government in Fiji at the moment. Even though the election took place, we the true supporters of democracy feel that we were singled out and are not given opportunities of employment and further advances. When Frank Bainimarama took over the government legally in 2006 lots of people suffered and as for me, I lost my job and join lobby groups in my home country protesting against the military regime

   The harm that I will face if I return to Fiji may not be physical for now, but is mental harm and can be very stressful. As I said previously, that job opportunity and further studies is not available or very scarce for us who do not support the current government. Even though it is under the banner of democracy it is still a dictatorship government because it does not engage the opposition party on important issues.

   There is now one me could turn to for help after the election. Nobody can take the government to court for any matter. And if you do then myself and my siblings will suffer the consequences in terms of job opportunities or it can be physical harm if the threat is imminent.

   Fiji is just a small country. The only other place to move to is my village. But then I still need to work and support myself and my siblings. The only place I can find work and opportunities is in Suva.

   Yes as I have stated before the harm may not be physical for now. I know for sure as a vocal supporter of a democratically elected government. This current regime is corrupt, they rigged their way into power and they will only help people that supported them. The mental harm and stress of not getting any opportunities of work or further obstacles can be too much to bear.

   The authorities (police and military) are loyal to the Banimarama and his cronies. If you toe the line and do support their cause you are okay. But as for me, if I do speak out about indigenous rights there will be no guarantee of protection if I do get reprimanded. I came from the mainland which is Vitileva and most jobs and opportunities are in urban areas. It’s very hard to relocate into rural areas where there is no opportunities to earn money and survive.

3. The delegate refused to grant the visa and the applicant applied for review.

4. A hearing was held on 31 August 2018. The applicant stated she was in a political group in Fiji and feared returning. The applicant said she came to Australia in December 2014 and applied for a protection visa in February 2015. A friend had helped her, she read English and her protection application was correct.

5. The applicant stated she had [number] siblings, [number] of whom were in Fiji.  She had [number] nephews (aged between [specified ages]) and [number] nieces (aged between [specified ages]) and [further specified relatives]. She had lived in [her home town within] Suva with her parents and [siblings] (including [names and ages]) up until she departed Fiji. She also stated that her parents died in [year] and [a sibling] died in 2013. All of her other siblings were married.

6. The applicant stated she had worked as [an occupation 1] since March 2015. Her [relative] was in Australia and she lived with her [relatives]. In Fiji she left her [occupation 2] job in 2009 and took care of her parents until they died in [year]. She stated it was hard for her to again look for a job because the workplace had changed and it was probably because of her age.

7. The Tribunal put to her that in her protection visa application form she said she was [an occupation 2] from [specified year] until 2005 and then went to [Country 1] in 2006/2007/2008 and [worked]. She then came back to Fiji and looked after her parents and after they died in [year] she looked for a job and started as [an occupation 2] for a short time on a temporary basis, however her [sibling] then asked for her help.

8. The applicant stated that in Fiji she joined Sodelpa and thought it would be easy for them to get a job for her. When asked if she did anything else with Sodelpa, she stated she was just a member. When asked if she had done anything in Fiji to indicate what her politics were she stated she contributed money to Sodelpa.

9. The applicant stated she came to Australia because her [Brother A] had been taken by the police in 2012 for a day but she did not know why. She stated [Brother A] was not charged and was now with one of his siblings and had not since been taken. She stated she thought he had been taken because he was in Sodelpa.

10. When asked if there are any other reasons why she came to Australia and she stated it was hard to find a job.

11. The applicant stated she could not return to Fiji because of what had happened to her brother in 2012. When asked if there was anything to stop her from living in the same house where she had previously lived, she stated she still had a fear because of what happened to her brother in 2012 and did not feel like going back.

12. The Tribunal put to her that she said in her statement that she was worried about not being able to find employment and had lost her job because she was protesting against the regime. The Tribunal also put to her that today she said she lost her job when she went to [Country 1]. She stated she only went to [Country 1] for three months. The Tribunal put her that it understood she went to [Country 1] between 2006 and 2008 she denied that. When asked what she did from 2005 to 2009, she stated she took care of her [relative].

13. The Tribunal also put her that she had said that she had not worked after 2005 which meant she had already lost her job when Bainimarama came to power in 2006. She said she lost her [occupation 2] job and that is why she cared for her [relative].

14. The Tribunal indicated that DFAT had stated that about 42% of Fijian women worked. The Tribunal put to her that it may be difficult to find work but that it may not be impossible, that she had managed to work in Australia for many years and she sounded like she was resourceful. The Tribunal also put to her that she had managed to continue to live in Fiji during periods of umeployment, her brother still lived in the house that she had grown up in and the Tribunal may find she could return to Fiji and find work and/or be supported by her family. The applicant stated all of her siblings were unemployed. When asked how they had been supporting themselves she stated one brother had a job and sold food crops. She also stated her siblings had their own families and she could not be a burden to them.  When the Tribunal put to her that she could look for employment, she stated she was aged. The Tribunal put to her that given that she was 45 it may find she was still of working age and that her age would not stop her from looking for work. She stated she lost her [sibling] and her parents and her brother had been detained and it was difficult for her to handle these things. The Tribunal put to her that she had come to Australia and had found employment in a country that was foreign to her and it sounded like she had been able to handle things.

15. The Tribunal put to her that DFAT said that just because she supported Sodelpa did not mean she would face harm but that the leaders of opposition political parties did face a moderate risk of being monitored and intimidated. She stated the politics had affected indigenous Fijians. The Tribunal also put to her that DFAT had stated there was no official and only low level societal discrimination against indigenous Fijians. She stated they had felt that in the workplace and in the community as well.

16. The adviser stated at the subjective level the applicant appeared to hold fears of discrimination and hardship and thought the current government did not support indigenous Fijians. She also felt disillusioned she would not be able to get employment to survive if she returned to Fiji.

Country Information

1. According to DFAT Country Information Report Fiji 27 September 2017:

   Indigenous Fijians

   3.11 Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Prior to European contact, Fijian culture was fluid, but was generally hierarchical and patrilineal, and structured into a number of families, tribes, clans, and confederations.

   3.12 Indigenous Fijians constitute nearly 60 per cent of Fiji’s population. Despite constituting a majority, some Fijians continue to feel a sense of economic marginalisation. It is difficult to generalise their socio-economic situation, but on average indigenous Fijians are less engaged in the cash economy, have lower educational outcomes, and have larger households. Indigenous Fijians are engaged in all aspects of the economy, but predominate in non-sugar agriculture, primary industries, fishing and fish processing, and in government. They are under-represented in business, professional services and the transport sector.

   3.13 In part to protect the Fijian culture and way of life, early British governors established a ‘native administration’, which entrenched the tribal / hierarchical relationships prevalent in parts of Fiji at the end of the 19th century. Though modified and renamed, much of this administrative system continues to exist today. It consists of an iTaukei Affairs Board (the ‘guardian’ of the Fijian administrative system and other aspects of Fijian custom); an iTaukei Lands Commission (which registers the names of each member of a mataqali, or tribe); the iTaukei Land Trust Board (which manages native land leases); provincial (yasana) councils; and district (tikina) councils. Other elements of the ‘native administration’, such as the Great Council of Chiefs (Bose Levu Vakaturaga) which was once able to appoint Senators, have been disbanded by the interim government in the name of removing indigenous privilege as part of its attempts to de-racialise Fijian politics.

   3.14 The continued existence of the indigenous Fijian administration (provincial councils and the iTaukei affairs ministry) is a minor form of positive discrimination towards indigenous Fijians. The overwhelming majority of government services are centrally delivered and provided on a non-discriminatory basis. Other services, including rural development, are provided through the indigenous Fijian administration and could be considered to unfairly advantage these groups on the basis of their ethnicity.

   3.15 In remote rural and outlying island areas, indigenous Fijians are generally an overwhelming majority of the population and are unlikely to be the victims of societal discrimination. In many cases, there is strong societal cohesion and a strong degree of cooperation between indigenous landowners and Indo-Fijian tenants (see Land Rights).

   3.16 Overall DFAT assesses there is no official discrimination against indigenous Fijians. DFAT also assesses that there is a low level of societal discrimination against indigenous Fijians.

   Employment and welfare
   2.30 Fiji’s labour force participation rate in 2016 was approximately 59 per cent. There remained a significant gender disparity in labour force participation: approximately 42 per cent of women and 76 per cent of men participated in the labour force. The official unemployment rate was approximately 6.2 per cent in 2015; however, youth unemployment (18-25 years) is much higher at 18.2 per cent.

   Opposition parties

   3.42 A range of opposition political parties contested the 2014 elections. Most representatives of opposition political parties have told DFAT that police and military routinely monitored and followed them during the campaign. Some reported continuing monitoring in 2017, intensifying in the lead up to the 2018 election. Monitoring was in some cases relatively open and cordial (for example, a polite telephone call enquiring after the subject’s movements and plans), sometimes annoying (for example, a vehicle parked outside the home), and sometimes intimidating (for example, overt police presence at a political gathering).

   3.43 Credible contacts allege that the government brought charges against opposition political party leaders, including former Prime Ministers Qarase and Chaudhry, in order to disqualify both from running in the 2014 election: according to the Constitution, individuals convicted of a crime with a maximum sentence exceeding 12 months are ineligible to run as candidates. Charges against Chaudhry relate to bringing foreign currency into the country without informing the reserve bank. Those against Qarase relate to abuse of office while he was Chairman of Fijian Holdings from 1992 to 1995. Credible legal professionals in Fiji assessed that the grounds for bringing these cases to court were weak and pointed out that more serious allegations against other people had not been prosecuted.

   3.44 Since Fiji’s 2014 election, three Opposition MPs have been disqualified from Parliament for periods of at least two years:

   on 29 September 2016, SODELPA MP Ratu Isoa Tikoca was suspended until the 2018 election for making statements that ‘intentionally targeted Fijians who are Muslims or adherents to Islam’;

   in June 2016, National Federation Party (NFP) MP Tupuo Draunidalo was suspended until the 2018 election for insulting the Education Minister; and

   in May 2015, SODELPA MP Ratu Naiqama Lalabaluva was suspended for two years for making offensive comments about the Speaker.

   3.45 On 10 September 2016, police detained opposition NFP Leader, Dr Biman Prasad; opposition SODELPA Leader, Sitiveni Rabuka; Fiji Islands Council of Trade Unions Leader, Attar Singh; former SODELPA politician and academic, Dr Tupeni Baba; Director of the NGO Pacific Dialogue, Jone Dakuvula; and Fiji Labor Party Leader, Mahendra Chaudhry. They were arrested ‘on suspicion of having breached the Public Order Act 1969 (as amended)’ for attending a public meeting that police had not permitted. Credible sources informed DFAT that all detained were taken to a police station in Suva, charged and subsequently released. Authorities dropped the charges on 17 October 2016, citing insufficient evidence and noting the arrests ‘appeared selective’.

   3.46 Overall, DFAT assesses that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections.

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 (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 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).

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.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

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Fiji and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

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

3. In her written claims, the applicant stated that when Bainimarama took over the government in 2006, she lost her job and joined lobby groups protesting against the military regime. At hearing, she stated that she left Fiji and cannot return because she cannot find employment, she is a supporter of the Sodelpa Party, her parents and [sibling] have died and because her brother was detained in 2012.

1. The Tribunal accepts that the applicant is a member of the Sodelpa Party and has contributed money to it. The Tribunal has considered this claim and has also had regard to relevant and comparatively recent country information contained in the DFAT country report for Fiji dated September 2017. The Tribunal accepts that the information contained in that DFAT provides credible and comparatively recent country information.

2. The Tribunal after considering the totality of the evidence including the DFAT report does not accept that the applicant has a well-founded fear of harm on the basis of her claimed actual or imputed political opinion of being opposed to the Fijian government because of she is a supporter of the Sodelpa Party or because she has given it money. The applicant's activities that she has described do not indicate to the Tribunal that she has a profile as an outspoken opponent of the Fijian government or that she is a high-profile public figure in terms of being at a real chance of serious harm should she return to Fiji either now or in the reasonably foreseeable future. Neither does the Tribunal accept that the applicant engaged in or will engage in any significant or high profile political activity with the Sodelpa Party that would place her at a real chance of serious harm if she returned to Fiji either now or in the reasonably foreseeable future. While the applicant stated that she thought her brother had been taken by police in 2012 for 24 hours because he was in Sodelpa, she has also stated that he was not charged and has not been taken since. Accordingly, neither does the Tribunal accept that the applicant will be at a real chance of serious harm because she is a family member of her brother if she returned to Fiji either now or in the reasonably foreseeable future.  

3. While the applicant claimed in her written application that when Bainimarama took over the government in 2006 she lost her job, her evidence at hearing was that she was [an occupation 2] up until 2005 and then looked after her parents so the applicant’s unemployment occurred before Bainimarama took over the government and the Tribunal does not accept that she lost her job as a result of Bainimarama coming to government.

4. However, the Tribunal accepts that the applicant may find it difficult to find work given that DFAT has noted that there is low level of societal discrimination against indigenous Fijians and that there is a lower rate of workplace participation for women than men. However, the applicant was employed as [an occupation 2] for many years and has also worked in Australia for many years as [an occupation 1]. The Tribunal considers that the applicant has skills and experience which would assist her in finding work if she returned to Fiji. She has also stated that she can return to her childhood home where her brother still lives.  While the Tribunal accepts that she may find it difficult to find work, it  does not accept that there is a real chance she would not be able to subsist in Fiji given she can return to her childhood home, has work skills and experience and also has the presence of extended family in Fiji.

5. Finally, as put to the applicant at hearing, the DFAT report does not suggest that there is any official discrimination against indigenous Fijians. In view of the Tribunal's findings, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any economic reason or because of her indigenous Fijian profile. Neither is the Tribunal satisfied there is not a real chance the applicant will suffer serious harm on return to Fiji.

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

7. 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).

8. For all of the reasons above, the Tribunal is not satisfied that there is a real risk of the applicant being significantly harmed if she returns to Fiji.

9. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. 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

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

Angela Cranston
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.

…