1610643 (Refugee)

[2019] AATA 6483

1610643 (Refugee) [2019] AATA 6483 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610643

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Sheridan Lee

DATE:9 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 September 2019 at 1:20pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – religion – feared jail for blasphemy against Islam – significant delay in applying for protection – lack of evidence – inconsistent evidence – lack of detail – credibility issues – family conflict – claims concocted to support application – no real risk of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavan v MIMA [2000] FCA 370
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Randhawa v MILGEA (1994) 52 FCR 437

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 29 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a [male] from Indonesia. He applied for the visa on 6 January 2016. The delegate refused to grant the visa on the basis that his claims lacked detail and no supporting evidence was provided. The delegate further noted that there was a delay in the applicant submitting his application and that he failed to declare his significant travel history as a former [occupation 1].

3. The Tribunal viewed a copy of the applicant’s Indonesian passport and I accept that the applicant is a citizen of Indonesia and will assess his claims against Indonesia as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.  

8. 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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, I have 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

10. The applicant seeks to invoke Australia’s protection obligations so he is not required to return to Indonesia, where he claims to fear harm from his brother on the basis of a dispute over inherited land and members of the Muslim community in retribution for insulting Islam.

11. The applicant first travelled to Australia [in] August 1993 as the holder of a [temporary] visa whilst working as [occupation 1] for [his employer]. He entered Australia on a [temporary] visa on numerous occasions, most recently departing [in] September 2009.

12. [In] October 2013, the applicant arrived in Australia on a [different temporary] visa and has not departed since that time. His visa expired on 8 November 2013.

13. On 6 January 2016, the applicant applied for protection. His application for protection form outlined that he was drawn into a conflict with his [brother] over the ownership and division of family heritage. He alleged that his brother is an alcoholic who threatened to kill him. The application form outlined that the applicant did not experience past harm in Indonesia, however the applicant believes that if he returns he would be attacked and killed.

14. The application form further outlines that the applicant attempted to move to Tangerang, however his brother tried to find him. He does not believe that the authorities would protect him because human rights can be manipulated by money in Indonesia.

15. Finally, the application form outlies that the applicant is divorced and there is no one to look after him in his old age. There is no aged care or pension system to take care of seniors and assist with living expenses after retirement.

16. The applicant lodged an application for merits review of the decision to refuse him a protection visa on 14 July 2016. He provided the Tribunal with a copy of the delegate’s decision and a written statement in support of his claims. The statement outlines that the applicant disagrees with the Departmental decision. In particular, he notes that the delay in applying for protection was due to a lack of money and knowledge that he could apply for protection on his own. It was his church that provided him with guidance on applying for protection.

17. The written statement emphasised the applicant’s desire to remain in Australia and live in peace. He has nothing to return to in Indonesia, his own brother wants to kill him and his family don’t care.

18. The applicant appeared before the Tribunal on 14 June 2019 to give evidence in support of his application. At the hearing, the applicant gave evidence that he was born in Manado, but moved to Jakarta in 1980. His father passed away in around 1981 and his mother about three years ago. He has no children.

19. The applicant gave evidence that he had a career as [occupation 1] for [his employer] until he retired in 2012. He travelled extensively through [several regions and countries]. When he ceased working for [his employer], his parents gave him an inheritance letter, or will, to transfer land.

20. The applicant explained that one day, when he finished working at [his employer] and he was at home, his parents gave him an inheritance letter for a piece of land. He gave evidence that this occurred in 2012, before ‘he’ died.

21. I asked the applicant to clarify the dates, because he had earlier given evidence that his father had passed away in 1981. He wasn’t sure about the timing. The applicant recalled that he was working overseas when his father died, so he thinks it was the 80s. I noted that the inheritance letter must have been provided after his father had passed away and the applicant said that was correct, it was just an inherited land title. The applicant gave evidence that he no longer has a copy of the land title as he handed it to his brother before he left Indonesia.

22. The applicant outlined that the land is located in the town of Manado, in the area of [area 1]. He wasn’t sure how much the land was worth, but estimated that it would be billions of rupiah (hundreds of thousands of Australian dollars). There are no houses or buildings on the land and it is currently used for farming by caretakers. The applicant’s parents farmed the land when they were still strong.

23. When the land title was passed to the applicant, his [brother], [Mr A] became angry and threatened to murder him. Their parents did not want to pass the land to the applicant’s brother as he was often drunk. The applicant didn’t know how to respond to the threats from his brother. He didn’t dare contact the police because his brother had plenty of friends, so he ran away as far as possible.

24. I asked the applicant if he had any other siblings, and he said yes, [another] brother named [Mr B] and [a number of] sisters. He rarely makes contact with his family – only to inform others not to disclose that he is in [a certain city in Australia]. I questioned why the applicant’s parents had not gifted the land to [Mr B] as the eldest brother, which is often the tradition. The applicant explained that he financially supported his mother for a long time, and speculated that was why the land was given to him.

25. I questioned when the applicant gave the land title to his brother. Despite his earlier evidence, he said he had not given the title to his brother - he gave it to his [sister], [Ms C], who lives in Manado. He asked her to keep the paperwork and not disclose that she held the paperwork to [Mr A]. The applicant was afraid that if [Mr A] discovered [Ms C] held the paperwork she would be at risk. I asked if the applicant could get a copy of the title or the will. In response, he said he didn’t know where that paper was at present. Perhaps [Ms C] had given the paper to someone else, the applicant stated that he dare not to find out.

26. The applicant does not take an income from the caretakers that utilise the land and he has never sought to sell the land. I advised the applicant that it seemed unusual to have caretakers using the land for free. He was unable to explain why that was the case. He went on to explain that each of his siblings has the right to utilise the land, and perhaps one of his brothers was receiving money. Then he speculated that his siblings might be taking turns to check the land, but noted that they don’t plant anything on it. He had no knowledge of any income sharing or distribution arrangement.

27. I questioned why he would hold onto the land in the circumstances. The applicant explained that he doesn’t want the land, but his parents entrusted it to him and specifically told him not to give the land to [Mr A]. The applicant believes his brother wants to own and then sell the land. The applicant has not sold the land himself because his brother would disagree with that action and threaten his safety. Further, he believes his brother is involved in gang life.

28. The applicant’s brother once threatened him face to face, but did not physically harm him prior to his departure for Australia. The applicant ran away to Jakarta and then Australia. He believes that his brother sent friends to look for him. The friends contacted the applicant by telephone to ask where he was and repeated the threat. The applicant erased the phone numbers. The applicant has not had any contact with his brother since that time.

29. I asked the applicant for further information about the threats. The applicant outlined that last time he had an exchange with his brother, he mentioned his brother’s Muslim friends that were smoking. In response, the applicant’s brother accused him of being offensive to Islam and threatened to tell his friends. The applicant was concerned that insulting another religion might send him to jail.

30. The applicant discussed an incident that occurred in Jakarta with Ahok, who was accused of insulting another religion and sent to jail. The applicant was referring to Basuki “Ahok” Tjahaja Purnama, the former Governor of Jakarta, who was imprisoned for blasphemy against Islam. I noted that Ahok is very high profile, and it seemed unlikely that an individual would be imprisoned for insulting another religion as a result of a family dispute. The applicant felt the example was comparable to his situation – insulting another religion will most likely cause someone to end up in jail, even if making an error in speaking. He went on to say that it is not only Ahok, but people trying to convert others to Christianity.

31. I questioned why the applicant had not raised any concerns about religious freedom of speech or blasphemy laws previously. He explained that he originally thought it wasn’t a very dangerous issue. However, gradually he could see the danger. He became worried when a preacher who was Muslim and converted to Christianity got four years in jail.

32. I asked the applicant to elaborate on what he said to his brother about Islam. The applicant outlined that he told his brother that his religion was shitty and not true. He couldn’t recall the exact other words but thought it probably was offensive.

33. The applicant wasn’t sure if his brother had converted to Islam. However, he joined a gang that had Muslim members. When asked how he knew they were a gang, he explained that [one] brother had informed him and they were always gathering to drink.

34. On the application for protection form, the applicant indicated that he had a [son]. I asked the applicant why he gave evidence that he has no children. He explained that he had adopted a child. When he was young he financed his schooling, but he has parents. I asked why [the child] carries his surname and the applicant said maybe because he felt happier to acknowledge him. He maintained that [the child] is not his biological child. Further, he is now a self-sufficient adult.

35. I asked the applicant about the significant delay in applying for protection. He explained that when he first arrived in Australia he went to [a location], which is quite remote. He was unaware that applying for protection was an available choice until his church encouraged him to apply. At first, the applicant had hoped that his concerns in Indonesia would be short lived. Later, he got the impression that the problem would not end so long as his brother is alive. I asked the applicant why he felt that way. He explained that he contacted his [brother], who advised that [Mr A] told him that the problem persisted. He no longer wanted to murder the applicant, but he wanted to send him to jail for insulting another religion.

36. Finally, I asked the applicant if he had any evidence to suggest that his brother would still be looking for him after six years. The applicant explained that so long as [Mr A] does not have the land title, he would find any excuse to end him.

    Credibility

37. In assessing the applicant’s credibility, I note that 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.

38. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

39. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, I am aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, I note that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

40. On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

    Consideration of claims

41. On the available evidence, I accept that the applicant is a [Christian] male from Manado, Indonesia. I further accept that he comes from a family of [several] children, and both his parents have passed away. I don’t accept that the applicant inherited any land from his parents or that he has an ongoing dispute with his brother in respect of an inheritance. Following this finding, I do not accept that the applicant’s brother is a member of an Islamic gang or that he has threatened to kill the applicant or report the applicant for blasphemy as a result of their dispute, or for any other reason.

42. Considering all of the evidence cumulatively and having regard to the applicant’s narrative as a whole, I do not find the applicant to be credible. In particular, I note that the applicant’s evidence about the land he inherited was vague and evasive. When asked for the address, he provided a general area. Originally the applicant gave evidence that the title document was kept by his sister. However, when asked about obtaining a copy of the title document, he claimed to have no knowledge of its current whereabouts and stated that he ‘dare not ask’. The applicant provided a number of examples of contact he had with his [other] brother [Mr B] since arriving in Australia, during which they discussed his brother [Mr A]. It is unclear why he could undertake this communication in secret but not obtain, or at a minimum request, a copy of the title from his sister.

43. The applicant claims to own a property of significant worth and yet obtains no financial benefit from the land and is unable to provide any details as to how the land is managed. Given that there is a family dispute over the ownership and use of the land, it seems unlikely that the applicant’s siblings would be sharing the responsibilities and any income generated without incident, as suggested by the applicant. The applicant gave evidence that he has not passed the title of the land to his brother because his parents asked him not to. While this may be admirable, it does not seem reasonable in the context of threats being made against his life and liberty.

1. I note that in addition to the concerns outlined above, there were a number of minor inconsistencies within the applicant’s oral evidence relating to the land title. For example, originally he stated that the land title document was given to his brother, and then later his sister. The applicant also outlined that his parents gave him the title whilst alive, which could not have occurred within the timeline provided. I accept that these inconsistencies might be explained by issues with interpretation, and have given them no weight. The significant concerns I have are specific to the overall plausibility of the story and the applicant’s ability to provide details about his claims.

2. I do not accept that the applicant’s brother is involved in an Islamic gang or that he would have the evidence or influence to send the applicant to prison for blasphemy. The applicant provided no information about the nature or activities of the gang. He had no information about whether his brother is an adherent to the Islamic faith or when he converted from Christianity. The applicant did not claim that his brother was involved in a gang or raise any religion-based claims prior to the Tribunal hearing. Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In this case, I am satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision or in his original written statement provided to the Tribunal. At the hearing, the applicant gave evidence that his fear about being jailed for blasphemy increased following a phone call with his brother [Mr B], during which [Mr B] advised that [Mr A] no longer wanted to murder him, he now wants him jailed for blasphemy. Nevertheless, I note that the alleged phone call with [Mr A], during which the applicant insulted Islam, took place while the applicant was still in Indonesia, sometime before he claimed protection. Similarly, the applicant would have been aware of his brother’s gang activities at the time he lodged his application for protection. His brother’s association with an Islamic gang and threats to take action for blasphemy are directly relevant to hthe applicant’s core claim to fear harm from his brother. Even if it were accepted that the fear subsequently increased over time, it is reasonable to assume that such key information would have been included in the original claim. As such, s.423A of the Act requires that I draw an inference unfavourable to the credibility of the claim or evidence.

3. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[1] The applicant applied for a protection visa on 6 January 2016, more than two years after his most recent arrival in Australia. At the time and age he applied, the applicant had limited options to remain in Australia. This is not indicative behaviour of someone who fears for their physical safety. When questioned about the delay in lodging a protection application, the applicant said he thought his problems in Indonesia would be temporary and also that he was unaware that applying for protection was an option. I do not find this to be a convincing justification for the delay. Nothing about the original claimed land dispute has changed. The only difference between the applicant’s original concerns and his concerns today seem to hinge on a conversation he had with his [other] brother, during which he advised the applicant that his [brother] no longer wants to kill him, but wants to send him to jail for blasphemy. The applicant’s concerns about blasphemy appeared concocted to support his application for protection.

   [1] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

   Chance of harm if returned to Indonesia

4. The applicant fears that if he returns to Indonesia he will be killed by his brother or jailed for blasphemy for insulting Islam due to reports made by his brother.

5. I have considered cumulatively what I have accepted of the applicants claim and find that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason if he were returned to Indonesia. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).

6. For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[2] I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk that he will suffer significant harm: s.36(2)(aa).

   [2] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.

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.

   Sheridan Lee
   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.

   …