1620850 (Refugee)

[2020] AATA 824

1620850 (Refugee) [2020] AATA 824 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620850

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Lilly Mojsin

DATE:6 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 6 March 2020 at 10:32am

CATCHWORDS
REFUGEE – protection visa – Pakistan – threats and assault by terrorists – credibility – inconsistent evidence – applied for protection after student visa refused – country information – decision under review affirmed

LEGISLATION            
Migration Act 1958 (Cth), ss 36, 65

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 November 2016 to refuse to grant the applicants protection visas [PV] under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied for the visas on 29 January 2016.  The second named applicant is the wife of the first named applicant and the third and fourth named applicants are their children, who were born in Australia.

3. The delegate refused to grant the visas, as the delegate was not satisfied that the first named applicant [applicant] would be seriously or substantially harmed on his return to Pakistan.

4. No separate claims were made by the second named applicant, the applicant’s wife or their children.

5. The applicants appealed that decision to this Tribunal on 7 December   2016, attaching a copy of the Department decision to the application for review.

   CRITERIA FOR A PROTECTION VISA

6. See Annexure A.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant's detailed written claims are on the Home Affairs Department file [Number] formerly the Department of Immigration and Border Protection (the Department) file. The applicant's written claims are summarised below.

8. The applicant claims, in his PV application:

   He was born in Abbottabad in Pakistan and brought up there. His father works for the Police Department in Pakistan.  When he visited his family on 29 April 2011 a major operation to arrest 'Osama Bin Laden' was carried out. He was at the wrong place at the wrong time. Osama Bin Laden was in his town with his group at that time.

   The applicant was approached by one of their top leader to help them and provide shelter to some of their members in his house. He was threatened that is he did not do so they would kill him. When he was approached by the Taliban to provide them with shelter, he was physically assaulted when he initiailly refused. They pointed a gun to his forehead and asked again. He agreed to assist them to save his life. Later on, he told his father who is in Pakistan Police. They went to local Police station to register complaint and asked for help.

   The applicant approached American and Pakistani police and explained to them all the situation. His family forced him to leave town after that. Members of the Taliban group are still searching for him. They try to torture his family and try to find out about him every now and then.  He can never go back because if they find out that he is in Pakistan, they will kill him and his family.

   One  night,  the Taliban came  to  his  house  to find  him and fortunately he was away from home  at his  in-laws  house.  He was  told by friends and  family  that Taliban  members  are looking  for him  and  will  kill  him if he returns  to Pakistan.

   Taliban have strong hold and power in his home country and they can kill anyone. To take revenge for not helping them they will definitely kill him. Every now and then they visit his street and enquire from the neighbours about him. On many occasions they try to torture his family and try to find his address.

   He has asked Police to help him but they cannot, due to the Taliban being strong in his country. Even though his father is a police officer, he asked the applicant to leave the country.

9. The applicant attended a PV interview on 15 November 2016.  A recording of that interview is on the Department file and it is summarised in the Department decision.  

   The applicant stated `that thing happened, that whole thing with Osama bin Laden' in 2011.

   Asked whether anything else happened he said `no.'   A few people tried to come to his dad in the morning and threaten him because he was involved in Osama bin Laden operation. The applicant stated that `so these people told my dad because of the situation you are involved in it is best you leave because it's not safe.' They were ` just some people.' They said “We can harm you because he was involved in that case. Osama bin laden case. He was doing some kind of investigation.' Asked why he cannot return to Pakistan almost five years later the applicant said that 'so many things happening, bomb blasts, kidnapping we just scared about our children if something happened to them.'

   He said `so first they approached my father and then later on they approached me. “I wasn't sure then later I realised they were the same people who approached my father.'  They approached him outside the house.  He did not recognize them.  Asked why he said in his statement that the Taliban asked him to provide shelter for their leaders the applicant stated that `this happened with my father not me.'

   Asked why the Taliban were still searching for him, he responded that `sometimes my friends see weird people around that area.'  He cannot return to Pakistan it was not safe and because of his kids.  'My kids get kidnapped, we can't take a risk because of the situation my father is involved in and the current situation there it is not safe. I don't want to put my or my children's life at risk.'

   Tribunal Hearing 24 February 2020

10. The applicant gave evidence to the Tribunal that he was born in Abbottabad in [Year]. He finished a [degree] in 2004, obtained a position in [Job field] and later in [a Workplace]. He came to Australia at the end of 2007. He came to study [Subject 1], but changed his studies to [Subject 2]. He was financially supported by his father and continues to be supported by his father and friends.

11. His father owns the family assets and he lived with his father prior to leaving Pakistan. When he returned after his marriage, he and his wife lived with his father.

12. He returned to Pakistan in December 2010 to marry. He married [in] December 2010 and returned to Australia without his wife.  He again returned to Pakistan in May 2011 and he left Pakistan once his wife had obtained a visa.  He said that he had a gap in his studies and was last enrolled as a student in September 2011.  His student visa was refused and he pursued an appeal to the MRT and to the Federal Circuit Court. He then applied for a PV on 29 January 2016.

13. The applicant confirmed that he holds a valid Pakistani passport.

14. When asked why he did not apply for a PV until 2016 he said he thought that maybe things would get better with his student visa but it did not happen.  He pursued an MRT appeal and a Federal Circuit Court appeal. He was not successful so after that he applied for a PV as he had no option with any other visa. It was put to the applicant that he only applied for PV as he had extinguished all other visa avenues.  He said he could not go back as he had some issues and had no other options. All the fighting and the Taliban thing.  His father was in the police Department as he had some issues and his father advised him not to come back. His life and his children’s life are in danger as anything could happen to him.

15. Asked what happened he said that he was approached by a few people.  Bad people who do terrorist activities back there. The Osama Bin Laden thing happened.  He was approached through his friends for them to stay there, a place to hide. It is different back there.  He never wanted to stay there and left as soon as his wife got a visa. Things were not good for his family.

16. He went home to his parents and then sometimes they have a gathering with friends.  Some people approached his friends, they needed some places to stay.  His friends and his cousins told him they needed some place to hide from the police or the security.  They wanted him to give them a place to hide. He said he could not help. He never met these people, and his friends just pointed them out at the shopping centre. They explained to him they were some people involved in terror groups.  He confirmed he was not approached by the people.

17. He left Pakistan because he spoke to his parents and his father was in the police at that time and he suggested that “better you do not stay and do your studies. We will see how it is going and better you do not stay”. He then got a visa for his wife.  He did not get any direct threat from these people. He stayed in Pakistan for a week.

18. Asked why these people wanted to stay with him, as his father was a policeman, he said it is not like a house and it is a village and the family had other land and houses.

19. It was put to the applicant that he had claimed in his PV that he was approached by one of the top leaders of Taliban to help and provide shelter to some of their members in his house. They threatened him if he did not do so and said they will kill him. He was physically assaulted when he initially refused. He responded that is what they told him. It was put to the applicant that his claims were inconsistent with the claims he had made to the Department and that he created his claims to obtain the visa sought.  He did not agree.

20. When put to him that nothing happened to him in Pakistan he agreed.

21. Asked how he and his family support themselves, he said he does not have a job in Australia and his wife does not work. His friend has a shop in the city.  

22. Asked what he fears on his return, he said now he has kids and he does not want to go there. It could be anything. Anything could happen. He cannot get any paperwork or any witness documentation.

23. Put he is able to return to Pakistan. He disagreed.  Asked what he fears about returning to Pakistan, he said anything could happen to him. That group told him when he was there.  

    REASONS AND FINDINGS

24. On the basis of their Pakistani passports, I accept that the applicant and the 2^nd named applicants are nationals of Pakistan and not national or citizen of any other country. The 3^rd and 4^th named applicants were born in Australia. They do not have Australian citizenship. I accept that the applicants do not have a right to enter and reside in any country other than Pakistan. Therefore I find that the applicants are not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Pakistan is the applicants’ “receiving country” for the purposes of s.36(2)(aa).

25. 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. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

26. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (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).

27. On 1 May 2011 Osama Bin Laden, the leader of Al Qaeda, was killed by US forces[1]  in Abbottabad. Al Qaeda lost its foothold in Pakistan[2].  Pakistan Tehreek-e-Insaf (PTI)[3], led by former cricket captain Imran Khan, won a plurality of seats (151 of 342) in the July 2018 elections. With the support of minority parties, PTI controls 180 votes in Pakistan's National Assembly, more than PML-N or Pakistan People's Party (PPP). PML-N has accused the military of manipulating the elections to favour PTI, including by coercing PML-N candidates to change party.

    [1]

    [2] DFAT Country Report 2019 Pakistan

I do not accept that the applicant is a witness of truth.

Firstly, the applicant claimed to the Department in his PVA that whilst he was visiting Pakistan he was approached by the Taliban, one of their top leaders to help them and provide shelter to some of their members in his house. He was threatened that if he did not do so they would kill him. When he was approached by the Taliban to provide them with shelter, he was physically assaulted when he initially refused. They pointed a gun to his forehead and asked again. He agreed to assist them to save his life. At the Department interview the applicant people approached his father regarding his claimed activities. At the Tribunal hearing the applicant said that his friends and cousins had told him that some people had approached them and told them that they wanted to hide in the applicant’s house. When he was out, at a shopping mall, with his friends and cousins they pointed these people out to him. He confirmed that nothing else happened he did not speak to those people. When put to him that the claims he has made during the hearing were inconsistent with claims made to the Department regarding the Taliban approaching him for shelter and physically assaulting him the applicant stated that is what they told him.

Secondly, the applicant did not apply for a PV until about 5 years after his return to Australia in 2011.  When put to the applicant that he did not apply for a PV and instead appealed his student visa refusal to the MRT and the Federal Circuit Court, the applicant said that he thought that maybe things would get better with his student visa but it did not happen and he had no option with any other visa.  I accept that there are avenues available to appeal a temporary student visa refusal, but the delay in applying for a PV raises serious concerns in relation to the credibility of the applicant and the veracity of his claims. I am satisfied it indicates a lack of a subjective fear of persecution.

Thirdly the applicant, after the inconsistencies were put to him. agreed that nothing happened to him in Pakistan

I am satisfied that the applicant is not a witness of truth who has created his claims in order to obtain the visa sought.

As I am not satisfied that the applicant is a witness of truth, I therefore find that the applicant was not approached by one of the top leaders of the Taliban to help them and provide shelter to some of their members in his house. It follows that he was not threatened or physically assaulted when he refused to assist. I find that no one pointed a gun at him and it follows he did not go to the local Police station to register a complaint and ask for help. I do not accept that his family forced him to leave town or that members of the Taliban group are still searching for him or try to torture his family and try to find out about him every now and then. I also find that a few people did not go to his dad and threatened him because the applicant was involved in the Osama bin Laden operation. I do not accept that people approached his friends and cousins seeking shelter nor do I accept anyone sought shelter from him or threatened him for any reason whatsoever.  

Whilst I accept that the applicant’s father was in the Police Department I do not accept that the applicant suffered harm in Pakistan for that reason. 

The applicant does not suggest that he feared harm in Pakistan for any other reason. I find that the applicant did not suffer any serious harm in Pakistan.  

No separate claims have been made by the second named, third named or fourth named applicants of harm in Pakistan. As none is suggested by the evidence, I find that the second named, third named and fourth named applicants did not suffer  harm in Pakistan

I am required to consider if the applicants would suffer serious harm in the future if they were to return to Pakistan for one or more of the reasons mentioned in paragraph 5J(1)(a).

I accept that according to DFAT [2019] Pakistan was elected to the UN Human Rights Council in October 2017 for a three-year term (2018 to 2020). It has ratified most major international human rights instruments. However, the full implementation of many of these instruments lags. In November 2015, the human rights wing of the Ministry of Law and Justice was replaced by a new Ministry of Human Rights, which launched a National Action Plan on Human Rights in February 2016. A national task force chaired by the Minister for Human Rights supports the action plan. Other bodies responsible for human rights policy include the Ministry for Law and Justice, the Ministry for Religious Affairs, and the Council for Islamic Ideology (CII). The CII is a constitutional body that advises the legislature on whether laws are in accordance with Islam, and it engages on human rights issues where it holds an interest or the government requests review.

The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.

Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218). Politicians remain at risk of assassination. 47 attacks (killing 51) targeted civilians, seven targeted Shi'a, two targeted Christians, one targeted Hindus, one targeted Sikhs, and six targeted educational institutions (see Religion and Education). Moreover, four terrorist attacks (killing 8) targeted religious minorities in 2018 (compared to six in 2017), and up to six incidents of faith-based, individual or communal violence (killing 4) were also reported (compared to 5 in 2017). The government's ability to maintain law and order against politically motivated violence is limited. Demonstrations often occur after Friday prayers and can be the target of terrorist attacks. In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July).

Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations

The applicant is neither a political leader nor political worker nor a member of a religious minority.

1. I have considered the applicants’ claims and evidence individually and cumulatively. Whilst I note the independent evidence, cited above, regarding the security situation in Pakistan, I find that the applicants do not have a real chance that, if returned to Pakistan, they would suffer persecution for one or more of the reasons mentioned in paragraph 5J(1)(a). I find that the applicants do not have a well-founded fear of persecution for these reasons.

2. I have considered whether the applicants meet the complementary protection criterion under s.36(2)(aa).

3. I accept that the applicant fears many things are happening in Pakistan, there are bomb blasts, kidnappings and he is scared about his children if something were to happen to them.

4. As the applicant did not suffer any harm when he resided in Pakistan or when he returned there for visits, and no separate claims have been made by the second named, third named or fourth named applicants of harm in Pakistan, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that the applicants will suffer significant harm.

5. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will be arbitrarily deprived of their life, that the death penalty will be carried out on them, that they will be subjected to torture, that they will be subjected to cruel or inhuman treatment or punishment or that they will be subjected to degrading treatment or punishment. Accordingly, I find that the applicants do not satisfy the requirements of s.36(2)(aa) of the Act.

   Conclusion

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

7. Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

8. There is no suggestion that any of the the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Lilly Mojsin
   Member

   
   

   ANNEXURE A

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

13. 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.

14. 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

15. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …