1707094 (Refugee)

[2021] AATA 5311

1707094 (Refugee) [2021] AATA 5311 (26 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707094

COUNTRY OF REFERENCE:                   Colombia

MEMBER:Sean Baker

DATE:26 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 26 November 2021 at 2:34pm

CATCHWORDS
REFUGEE – protection visa – Colombia – particular social group – homosexual men and/or HIV positive homosexual men – fear harm from homophobic father, the police and society at large – state protection – right to enter and reside in another country – MERCOSUR – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 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 17 March 2017 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 Colombia, applied for the visa on 2 August 2016. The delegate refused to grant the visa on the basis that the delegate accepted the applicant was homosexual and HIV Positive but did not accept he would face a real chance of serious harm or a real risk of significant harm for these reasons.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The issues in this case are whether the applicant has a well-founded fear of serious harm on return to Colombia, whether there is a real risk he will suffer significant harm if returned from Australia to Colombia, and whether he can access safe third country protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

10. The applicant has provided a copy of his Colombian passport. On this basis I accept the applicant is a national of Colombia.

11. [The applicant] fears harm on return to Colombia because of his status as a homosexual, HIV-positive man. It is claimed that the applicant’s risk of harm is exacerbated by his mental health issues, and the fact he no longer practises Catholicism.

12. [The applicant] arrived in Australia [in] April 2010 as the holder of a [student visa].

13. It is claimed, and I accept, that whilst [the applicant] studied in Australia, he experienced cultural and personal freedom for the first time, able to explore his identity and his sexuality. He came to the realisation that he was a homosexual whilst in Australia.

14. In Australia the applicant contracted HIV, receiving the diagnosis in 2013. He experienced depression and hopelessness. Around this time the applicant told his mother of his homosexuality and his health, information which was passed on to his father. His father threatened him over the telephone.

15. As a result of [the applicant]’s ostracism from his family and medical diagnosis, [the applicant] spiralled into a deep depressive state for several years. In 2016, [the applicant] obtained legal advice and on 2 August 2016 he applied for a Permanent Protection (subclass 866) visa. He was unaware until receiving legal advice that he was eligible to claim Australia’s protection on the grounds claimed herein.

16. I have had the benefit of the information provided to the Department, to the Tribunal and in speaking with the applicant at hearing.

17. On the information before me, I accept, as did the delegate, that the applicant is homosexual. Having regard to the Relationship certificate provided I accept that the applicant is in a de facto relationship with [Mr A] since 2019, the relationship having been registered since 7 September 2021.

18. Having regard to the information before me and the delegate, I accept, as did the delegate, that the applicant is HIV positive and has been so since 2013, that the virus is currently controlled by antiretrovirals which the applicant obtains through a clinical trial which has no end date.

19. On the medical information and his evidence, I accept that the applicant suffers from depression and is taking anti-depressants, and suffers anxiety and panic attacks.

20. I accept that the applicant has rejected his religion of birth, Catholicism. I accept that the applicant’s family are devout Catholics.

21. I accept that the applicant has a strong subjective fear of his father, the police and the broader community in Colombia.

22. I accept that the applicant’s father threatened the applicant in approximately 2013. I accept that since this time the applicant has had no contact with his family.

23. I note that the delegate doubted the harm feared from the applicant’s father would occur. However, the applicant has at all times portrayed a consistent and detailed account of a violent man who has demonstrated violence toward the applicant, his mother, and others. I accept that the applicant’s father is a devout Catholic and I am not compelled by the delegate’s reasoning that there is no chance of the applicant’s father harming the applicant because of his faith. History and current day experiences demonstrate a range of persons who commit serious wrongs against others despite their strong actual or claimed religious faith.

    Country information

24. The country information indicates that Colombia has instituted a legal framework for the protection of LGBTIQ+ persons, including making same-sex acts legal since 1981, instituting legal protections against discrimination in employment, against hate crimes and violence, allowing civil unions, same sex marriage, and recognition of joint adoption and second parent adoption.[1] This has made it, in the words of one source “ … one of the most progressive countries in Latin America in regards to the formal legal status of LGBT rights.’[2]

    [1] 'Advances and Challenges towards the Recognition of the Rights of LGBTI Persons in the Americas', Inter-American Commission on Human Rights (IACHR), Organization of American States (OAS), 7 December 2018, 'State-Sponsored Homophobia 2020: Global Legislation Overview Update', Mendos L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, ‘Trans Legal Mapping Report: Recognition Before the Law. 2019. 3rd edition‘, Chiam Z, Duffy S, González Gil M, Goodwin L and Mpemba Patel N T, ILGA [International Lesbian, Gay, Bisexual, Trans and Intersex Association] World, 2020

    [2] ‘Stress, Health, and Well-Being of LGBT People in Colombia. Results from a National Survey’, Choi S K, Divsalar S, Flórez-Donado J, Kittle K, Lin A, Meyer I H & Torres-Salazar P, The Colombia Collaborative Project, Williams Institute, UCLA School of Law, [21] December 2019.

25. However, reports also reveal allegations of police violence based on sexual orientation,[3] and continuing concerns that the militarized police force commits widespread abuses but that most victims do not report it, and amongst those who do, they are largely street workers and gay people.[4]

    [3] 'Country Reports on Human Rights Practices for 2020 - Colombia', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, pp.31-32 ‘Section 6. Discrimination, Societal Abuses, and Trafficking in Persons. …

    [4] 'Fight crime, not war. Why Colombia’s militarised police need reform', The Economist, 19 September 2020, ‘Stress, Health, and Well-Being of LGBT People in Colombia. Results from a National Survey’, Choi S K, Divsalar S, Flórez-Donado J, Kittle K, Lin A, Meyer I H & Torres-Salazar P, The Colombia Collaborative Project, Williams Institute, UCLA School of Law, [21] December 2019.

26. The UN High Commissioner for Human Rights, in her report on human rights practices in Colombia during 2020, stated, of LGBTI persons:

    The Office of the Ombudsman has reported an increase in violence against lesbian, gay, bisexual, transgender and intersex persons during the pandemic, ...There was also an increase in obstacles to access to justice when filing complaints and in institutional barriers.82 The Office of the Ombudsman found that the main obstacles were the prejudiced criteria applied by some public officials and the lack of financial resources.83 In November, the Ministry of the Interior launched an action plan for implementing the national policy for lesbian, gay, bisexual, transgender and intersex persons. OHCHR reiterates the importance of its expedient implementation.[5]

    [5] 'Situation of human rights in Colombia. Report of the United Nations High Commissioner for Human Rights (A/HRC/46/76)', United Nations High Commissioner for Human Rights, United Nations General Assembly, 17 March 2021.

27. Freedom House, in reviewing freedoms in Colombia during 2020 also stated that despite the laws and protections, ‘there are also high levels of impunity for crimes committed against’ ‘LGBT+ people’.[6]

    [6] 'Freedom in the World 2021 - Colombia', Freedom House, 3 March 2021, p.[15], section ‘F. Rule of Law … F4 Do laws, policies, and practices guarantee equal treatment of various segments of the population?’.

28. The country information also indicates that a significant number of LGBTIQ+ persons have been killed in Colombia in recent years, between 60 to more than 70 in 2020 according to different reports as well as hundreds of reports of violence, both increases on the year before.[7]

    [7]  ‘More than 60 LGBT, intersex people killed in Colombia in first eight months of 2020’, Reuters, Thomson Reuters Foundation, 15 September 2020;  'Country Reports on Human Rights Practices for 2020 - Colombia', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.31 ‘Section 6. Discrimination, Societal Abuses, and Trafficking in Persons. … Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity’; 'Freedom in the World 2021 - Colombia', Freedom House, 3 March 2021, p.[15], section ‘F. Rule of Law … F4 Do laws, policies, and practices guarantee equal treatment of various segments of the population?’; 'Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.125-129 ‘Colombia’ at p.128.

29. There are alarming reports that the pandemic has exacerbated negative societal attitudes towards those living with HIV, including a reported case where paramedics refused to treat a person who identified as HIV positive, and reports of societal violence and discrimination against those living with HIV.[8]

    [8] US State Department, Country Report on Human Rights Practices – Colombia 2020, at p32. Beatriz E. Alvarado et al, Adaptation and Pilot Evaluation of an Intervention Addressing the Sexual Health Needs of Gay Men Living with HIV Infection in Colombia, American Journal of Men's Health, Jan-Feb 2021,

    Does the applicant have a well-founded fear of persecution on return to Colombia?

30. If the applicant returned to Colombia, I find he would return, in the first instance, to [Town 1], a small town in the mountainous West of the country. He has not lived elsewhere in Colombia and having lived in Australia for many years does not have any meaningful connections to other parts of the country that would allow him to establish himself there. I find that [Town 1] is his home area.

31. I find on the information which has consistently been provided by the applicant, that he faces a real chance of serious harm, including beatings, being threatened with a gun or other forms of serious harm from his father if he returns to [Town 1]. The question of motivation is a difficult one in such cases but, having regard to the applicant’s evidence, which I accept, that the applicant’s father consistently made homophobic slurs while the applicant was growing up, I accept that while the harm he would commit against the applicant would be partly on the basis of their personal relationship, it would be based in the applicant’s father’s homophobia and therefore I find that the essential and significant reason for the harm would be the applicant’s membership of the particular social group of homosexual men and/or HIV positive homosexual men.

32. I note and have had regard to the applicant’s claims to fear harm from the police and society at large. Having regard to the country information above, and looking to the reasonably foreseeable future, I find that at this juncture, the chance of harm to a homosexual man who is HIV positive is not remote. I have had regard to the fact that a significant number of LGBTIQ+ people have been murdered in Colombia last year, and many hundreds have reported being seriously harmed. Further, the country information supports a conclusion that this number may vastly understate the number of LGBTIQ+ people who experience serious harm at the hands of the authorities and society at large. Compounding this is the situation for HIV positive persons, which it appears from the country information has become even more precarious since the pandemic. I make these findings despite what I accept are strong formalised legal protections for LGBTIQ+ persons in Colombia, but the country information demonstrates that these protections do not extend to real protection against the harms feared by the applicant, certainly not at this time when the pandemic is affecting all areas of life in Colombia and manifesting as intolerant and violent attitudes towards those seen as different.

33. I do not accept that the harm the applicant fears from his father extends to all areas of Colombia. If the applicant were to return to Colombia and remain in Bogota or one of the larger cities, I do not accept that his father, who has had no contact with the applicant for eight years, would travel to this location for the purpose of harming the applicant. However, I find that the harm feared by the police and homophobic individuals (who would be able to act with impunity on the above country information) extends to all areas of the country.

34. I have also considered whether the state could offer effective protection to the applicant for the harm feared. I find it cannot. As above the country information supports a view that some harm to LGBTIQ+ persons and those who are HIV positive may be perpetrated by the authorities themselves. Importantly, even when harm is perpetrated by homophobic individuals, the country information supports a view that they do so with impunity. The country information also indicates that during the pandemic intolerance and hostility to those seen as different such as those who are HIV positive has increased. Having carefully considered the country information I find that it does not support a finding that the State authorities of Colombia are willing and able to offer effective protection to the applicant and therefore that s. 5LA(1)(b) is not satisfied.

35. I am required to consider any reasonable steps to modify his behaviour the applicant could make so as to avoid a real chance of persecution in Colombia. The applicant could hide his homosexuality, his de facto relationship and his HIV positive status. All of these actions would however fall within the exceptions with s. 5J(3)(a), (b) and (c)(vi) and so are prohibited requirements.

36. I find that the persecutory harm feared from his father, the authorities and homophobic individuals would be for the essential and significant reasons of his homosexuality and HIV positive status. I find that t]he harm he fears, which may involve being killed, beatings, extreme psychological harm would amount to serious harm, and that the persecutory harm would be systematic and discriminatory because it would be directed or targeted at the applicant for reasons of his membership of the above groups.

37. On the basis of the above I find that the applicant holds a well founded fear of being seriously harmed amounting to persecution by his father, the police and homophobic individuals on return to Colombia now or in the reasonably foreseeable future.

    Does the applicant have the right to enter and reside in another country?

38. Having satisfied s 36(2)(a), I must consider whether s 36(3) applies to the applicant. On the evidence before me I accept that the applicant is not a national of any other country than Colombia.

39. The MERCOSUR agreement, initially between Argentina, Brazil, Paraguay and Uruguay, has as its objective a common market allowing for the free movement of goods and services, a common trading position in relation to third states, and the harmonisation of laws relating to trade between the states.[9] Colombia is an Associated State of MERCOSUR, meaning it has signed a free trade agreement with MERCOSUR and which allows Colombia to participate in meetings that deal with issues of common interest.[10]

    [9] Objetivos del MERCOSUR - MERCOSUR

    [10] Países del MERCOSUR - MERCOSUR

1. As an associate member to Mercosur, Colombia has the same relocation and residency rights as a full state member. This is established through the decision of the Council of Common Market (CMC) decision No 28/02, of which CMC decision No 20/12 ratified that Colombia was also to be treated under the same agreement. This agreement being the, "Agreement on Residence for Nationals of the MERCOSUR States Parties, Bolivia and Chile", signed on December 6, 2002.

2. However, I have had regard to and accept that the situation is somewhat different in practice:

   With regard to implementation of the agreement, the 2014 IOM report highlights several problems for certain countries. These include lack of administrative resources to deal with applications, introduction of additional requirements not included in the original agreement, or lack of information generally available to those who could benefit from it. Moreover, the agreement has not been implemented consistently in each country. Unlike free mobility in the European Union, where EU law supersedes national law, the Mercosur agreement is an international treaty implemented by individual countries for themselves. For example, although Chile has received a large number of regional migrants from Ecuador, Peru, and Colombia, it does not apply the agreement to nationals of these countries. Argentina, by contrast, extends the agreement to all other 11 countries in South America, including those that have yet to implement it: Guyana, Suriname, and Venezuela. In turn, Uruguay directly grants permanent residency to those applying for a permit, rather than first offering a two-year temporary one. Finally, the agreement mentions the right to equal treatment with regard to social, cultural, and economic rights but does not further define this. Consequently, discrimination with regard to aspects such as welfare benefits is common.[11]

   [11] Acosta, D., ‘Free Movement in South America: The Emergence of an Alternative Model?’ Migration Policy, 23 August 2016, Article: Free Movement in South America: The Emerg.. | migrationpolicy.org

3. It has also been noted that even in terms of the agreements themselves, ‘a Mercosur national does not have an enforceable right to movement, which will be protected by an extensive supranational court system, the right is discretionary, dictated by the will of home and host States.’[12]

   [12] Rust, K., “Tracing Root of Movement Rights: EU and Mercosur’, European Law blog, 16 September 2019, Tracing Root of Movement Rights: EU and Mercosur – European Law Blog

4. I have also had regard to information that COVID-19 has had a significant impact on MERCOSUR countries and the practical realities of individuals asserting their rights to enter and reside in countries under the agreements.[13] There is information that there have been mobility restrictions put in place by member states.[14] More generally, there is information of ongoing border closures and restrictions in the region.[15]

   [13] UNPFA: Latin America and the Caribbean Region COVID-19 Situation Report No. 4. Alden, C., Dunst C.,  COVID-19: Latin America and the Caribbean and MERCOSUR and CARICOM, London School of Economics, COVID-19: Latin America and the Caribbean and MERCOSUR and CARICOM (lse.ac.uk)

   [14]  Mercosur, “Comunicado Conjunto de Presidentes de los Estados Partes y Estados Asociados del MERCOSUR” (joint communiqué, 16 December 2020).

   [15] IOM, COVID-19 and the State of Global Mobility in 2020, Migration Policy Institute, April 2021, COVID-19 and the State of Global Mobility in 2020 (iom.int)

5. I have had regard to the fact that Colombia is an associate member, although formally this allows free movement of nationals of such member states, I have had regard to information indicating that in practice there are limits on this right to free movement that mean that practically speaking, the ability to enter and reside is limited in practice. I have had regard to the fact that COVID-19 has had a significant effect on MERCOSUR members countries, and that there appear practical barriers that have been put in place during the pandemic and into the reasonably foreseeable future.

6. On the information before me I am not satisfied that as at the time of decision, the applicant has a clear right to enter and reside in any of the MERCOSUR member countries.

   Conclusions

7. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   DECISION

8. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Sean Baker
   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.

   (3)Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4)However, subsection (3) does not apply in relation to a country in respect of which:

   (a)  the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

   (a)  the country will return the non-citizen to another country; and

   (b)  the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A)Also, subsection (3) does not apply in relation to a country if:

   (a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.