1620929 (Refugee)

[2020] AATA 1665

1620929 (Refugee) [2020] AATA 1665 (15 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620929

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Paul Windsor

DATE:15 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 15 May 2020 at 11:15am

CATCHWORDS

REFUGEE – protection visa – Taiwan – political opinion – membership and activity in student protest movement – credibility – vague and uncertain evidence – in Australia at the height of the protests – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 499

Migration Regulatations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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 dependants.

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 14 November 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 Taiwan, applied for the visa on 21 December 2015.

3. In his Protection visa application the applicant indicated that he was born on [Date] in Taiwan, is of Chinese ethnicity and has never married or been in a de facto relationship.  He did not indicate he practices any religion.  He indicated he first came to Australia [in] January 2014, entering on a Working Holiday visa, and returned to Taiwan [in] January 2015 to visit family, returning to Australia [in] February 2015 on a Working Holiday visa.[1]

   [1] See the Departmental file.

4. The applicant indicated in his application that he sought protection in Australia because he fears being arrested due to his political views.  He indicated he was a member of the ‘Sunflower’ student movement, participated in demonstrations, and was warned by authorities when he returned to Taiwan in January 2015 not to demonstrate against the government or he will be arrested.[2]

   [2] See the Departmental file.

5. The delegate refused to grant the visa finding that the applicant’s claims were vague with minimal detail and no supporting evidence was provided to substantiate his claims.  The delegate did not accept the applicant was involved with the ‘Sunflower Movement’, noting that he was in Australia at the time the movement was active in 2014.  The delegate noted there was another student protest in July 2015 but the applicant was also in Australia at that time. Given the lack of evidence of the applicant ever having been involved in any protest activity in Taiwan, the delegate did not find it plausible that the applicant would have received a warning from government authorities not to demonstrate against the government or they would arrest him, when he visited Taiwan in January-February 2015.

6. The applicant applied to the Tribunal for review of this decision on 8 December 2016.  The applicant provided the Tribunal with a copy of the delegate’s decision record.[3]

   [3] See the Tribunal file.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant’s claims for protection were set out in a brief statement included with his Protection visa application. His claims are summarised as follows:[4]

    [4] See the Departmental file.

    • He left Taiwan because of his political opinion.  The current government wanted people to believe a trade pact with Mainland China would benefit the economy.  He disagreed.  He and his friends found the government was selling their resources and job opportunities to Mainland China. 
    • They protested the passing of the Cross-Strait Service Trade Agreement (CSSTA) by the ruling Kuomintang party (KMT) at the legislature without clause-by-clause review.
    • They were given the name Sunflower student movement.
    • His mother worried about his participating in demonstrations and forced him to come to Australia.
    • Many of his friends attended the demonstration in April 2015.  Many were injured by riot police and his best friend was arrested.
    • He went back to Taiwan in January 2015.  He was warned by government officials not to demonstrate or he would be arrested.  His best friend was closely monitored.
    • He was frightened by the warnings so returned to Australia in Feb 2015.  He can’t go back to Taiwan because of his political views.

    Findings and reasons

    Identity

14. On the basis of the copy of his Taiwanese passport submitted to the Department,[5] the Tribunal accepts that the applicant is a national of Taiwan and that his identity is as claimed.  The Tribunal accepts that Taiwan is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Issues

    [5] See the Departmental file.

15. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Taiwan, there is a real risk he will suffer significant harm.

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

    Credibility 

17. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims.  Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

18. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

19. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

20. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

21. 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 possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

22. 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 a particular factual 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.

    Assessment of claims

    Background

23. At the hearing the applicant indicated that he has his mother and [siblings] living in Taiwan.  He said his father is deceased. He indicated he grew up in Pingtung in south Taiwan.

24. The applicant confirmed that he first came to Australia [in] January 2014 on a Working Holiday visa.  He said he returned Taiwan [in] January 2015 for about one month. 

    Claim to be a member of the Sunflower student movement

25. The delegate has set out in their decision record, a copy of which the applicant provided to the Tribunal, relevant country information on freedom of speech and the right to peaceful protest in Taiwan, as well as information concerning the Sunflower movement in 2014 and another student protest in 2015 (regarding the implementation of new ‘Sino-centric) guidelines for high school social studies and history textbook.  Sources are the Constitution of the Republic of China (Taiwan) and reporting by Focus Taiwan News Channel; the South China Morning Post; The Diplomat; Hong Kong Free Press; Freedom Observatory; and TIME magazine.  Relevant information from these sources is summarised as follows:

    ·Freedom of speech and the right to peaceful protest is enshrined in the Constitution of the Republic of China (Taiwan), including that ‘The people shall have freedom of speech, teaching, writing and publication’ (Article 11) and ‘The people shall have freedom of assembly and association’ (Article 14).

    ·The ‘Sunflower Movement’ took place in 2014.  On 18 March 2014, a group of young college students broke through police barriers and forcefully occupied the Legislature in Taipei, Taiwan, protesting the then KMT government’s attempt to put to a vote in the legislature without further review the controversial Cross-Strait Services Trade Agreement (CSSTA).

    ·In the following three weeks, the Sunflower Movement waged a war for hearts and minds against the administration of President Ma Ying-jeou, who insisted the trade pact with China had to be ratified ‘as is’ by June.

    ·Following a rally on March 30 organised by the movement, which attracted approximately 350,000 people, the Legislative Speaker made a concession (a promise not to call for future bipartisan review of the CSSTA until the oversight mechanism had been implemented) which the movement viewed as an act of goodwill.  This led to the movement announcing that they would vacate the legislature on 10 April 2014, 24 days after the protest began.

    ·The first political decision made by Premier Lin Chuan (of the Democratic Progressive Party – DPP), after deliberation with newly sworn in President Tsai Ing-wen of the DPP, was to drop charges against 126 activists who were involved ‘in 2014’s sunflower movement’.  Premier Lin Chuan was quoted as stating ‘the sunflower student movement was a political incident, and not a purely legal incident, it should be handled as leniently as possible under the principle of more harmony and fewer conflicts’ and that the demands of the movement were now the ‘consensus of society’.  The legislature moved to introduce laws to monitor cross-strait agreements.

    ·In 2015 there was a campaign to block the implementation of new Sino-centric guidelines for high school social studies and history textbooks.  The protests ‘swelled between April and early August of that year, culminating in the storming of the Ministry of Education by hundreds of students on 23 July 2015.  The episode ended with a meeting between the student representatives and Minister of Education Wu Se-hwa on 3 August 2015.

    ·The newly elected DPP administration of President Tsa Ing-wen moved quickly (the day after the 20 May 2016 inauguration) to announce the new guidelines were rescinded.

26. At the hearing the applicant said he left Taiwan in January 2014 because he had a different political opinion to the government.  He commented that he believed that the government was going to sell Taiwan to Mainland China so he started the sunflower rally to call off the CSSTA.  The Tribunal queried the applicant whether he was saying that he founded the sunflower student movement.  He said ‘no’ and commented he was one of the participants.

27. The Tribunal asked the applicant when the movement took place.  He could not recall, commenting it has been a long time.  The Tribunal asked him what the movement did.  He said it was a protest.  When asked how they protested he said they believed the government wanted to sell some information to China.  When again asked how they protested the applicant did not respond.  When asked for a third time he said the youth in Taiwan believed the Taiwanese government was selling information.  He added that he had many friends who shared this view so they started a protest.  When again asked what they did he replied that the purpose was to protect their rights.  When again asked what they actually did, he said they had a parade.  The Tribunal asked where the parade was.  The applicant replied that they held a lot of signs.  When again asked where this occurred he said it was in Taipei.   The Tribunal asked when this parade was.  He could not answer.  When asked how soon it was after the protest that he came to Australia, he replied that it happened many times and indicated he could not remember when it was in relation to when he came to Australia.

28. The Tribunal asked the applicant if anything happened to him while he was in Taiwan.  He replied that officers from the government came and warned him to stop or else he would be thought of as anti-government.  The Tribunal asked the applicant what was the main thing that happened.  He replied that at the parade a lot of people were hurt and that one of his good friends was hurt by police.

29. The Tribunal asked the applicant how the sunflower student protest ended.  He replied that he can’t remember.

30. The Tribunal put to the applicant that country information indicates that the sunflower student movement was in 2014, but he came to Australia [in] January 2014, so it is hard to see how he was involved with this movement when he was in Australia at the time it was happening.  He replied that he has friends who were involved who told him what happened and that made him really afraid.

31. The Tribunal put to the applicant that the country information indicates that students occupied the Taiwan legislature in March 2014 and left voluntarily in April 2014, that there was no violence, and while 126 students were subsequently charged with offences, the new DPP government dropped all charges against them when it came to power in May 2016.  The applicant replied that he has been terrified of going back to Taiwan. He added that he is not clear about the current situation there.

32. The Tribunal asked the applicant why he returned to Taiwan in January 2015 if he was terrified to go there.  He replied that at the time he really wanted to go back but officers of the government and police warned him not to protest or they would arrest him.  The Tribunal asked the applicant why they would have done this.  He said it was because he was one of the members.  He added that his mother knew he participated.  The Tribunal gain put to him that he was in Australia in 2014 when the movement was active.  He replied that while he was still in Taiwan he spent a lot of time discussing ‘doing this’ with his friends.

33. The Tribunal asked the applicant what he was referring to in his written statement when he wrote that he had many friends who attended the demonstration in April 2015.  He replied that it was what the Tribunal had mentioned earlier, when the legislature was occupied.  The Tribunal replied that the incident where the legislature was occupied occurred in March and April 2014, not in April 2015.  He indicated that he meant 2014.

34. The Tribunal asked the applicant what concerns him about returning to Taiwan now given there has been a change of government.  He said he is worried because he is not sure what kind of treatment he would get.  The Tribunal referred the statement by Premier Lin Chuan in May 2016 when the incoming DPP government announced it had dropped charges against the 126 sunflower student movement people who had been charged in relation to the occupation of the legislature, commenting that it is a conciliatory statement.  The Tribunal put to the applicant that there is no indication that the government is pursuing members of the sunflower student movement.  He indicated he was not sure whether he can trust his own government.

1. The Tribunal put to the applicant that there does not appear to be any basis for him to fear harm in Taiwan, noting that, in any event, he was not one of the 126 who had been facing charges.  He replied that he is really terrified and does not know if they are going to press charges again.

2. The Tribunal found the applicant’s evidence to be vague and uncertain.  He did not display a good knowledge of the sunflower student movement and his evidence that he was involved in demonstrations as part of the movement is contrary to country information which indicates that the movement was active in 2014, when the applicant was in Australia.  The Tribunal does not accept that the applicant ever attended any demonstrations in Taiwan or was in any way associated with the sunflower student movement.  The Tribunal does not accept that his good friend was arrested and monitored by authorities or that when the applicant returned to Taiwan in January 2015 he was warned by government officials not to demonstrate against the government or he will be arrested.

   Refugee criterion

3. Given the Tribunal’s findings above, and noting that the KMT government was defeated in 2016 and the more liberal/progressive DPP is now in power, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm at the hands of Taiwanese government authorities, including the police, due to his actual or imputed political opinion and/or activities, should he return to Taiwan in the reasonably foreseeable future.

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

   Complementary protection criterion

5. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

6. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[6]

   [6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

7. Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, there is a real risk that he would suffer significant harm as set out in s.36(2A), from Taiwanese government authorities, including the police, or anyone else.

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

   Member of the same family unit

9. 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).

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

    Paul Windsor
    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.

    …

    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.

    …