1707124 (Refugee)

[2020] AATA 3083

1707124 (Refugee) [2020] AATA 3083 (7 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707124

COUNTRY OF REFERENCE:                   China

MEMBER:L. Symons

DATE:7 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 07 April 2020 at 1:09pm

CATCHWORDS

REFUGEE – protection visa – China – dispute over demolished property – lodged petition with provincial government – retaliation by demolition officer – arrest and detention – delay in applying for protection – failure to attend second hearing – inconsistent evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 427, 428, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 3 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 China, arrived in Australia [in] November 2009 as the holder of a [Visitor] visa. That visa expired on 17 November 2009 and he thereafter remained in Australia as an unlawful non-citizen. On 2 December 2016, he was granted a Bridging C visa in association with his application for a Protection visa. He was issued a further Bridging C visa on 6 February 2017 and that visa remains in effect.

3. The applicant applied to the Department of Immigration (the Department) for a Protection visa on 1 December 2016. The delegate refused to grant the visa on 3 March 2017. On 4 April 2017, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 16 January 2020 to give evidence and present arguments. Under the evidence power of the Tribunal in s.427(1)(a) of the Act, the Tribunal authorised a Tribunal Officer in writing (pursuant to s.428 of the Act) to take evidence on oath or affirmation from the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was informed at the end of the hearing on 16 January 2020 that the hearing was being adjourned to another date and that it was important that he attend the adjourned hearing and give further evidence before the Tribunal Member. He was informed that the Tribunal Member would take into consideration the evidence he had given at the hearing on 16 January 2020. He was informed that he would receive another invitation to the adjourned hearing. He stated that he understood that.

6. On 4 February 2020, the Tribunal wrote to the applicant and invited him to appear before the Tribunal on 10 March 2020 at 9.00am to give further evidence and present arguments relating to the issues arising in his case. The letter informed him that if he did not attend the hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it. The letter was sent to him by email to his email address on 4 February 2020. This was the same email address to which the previous hearing invitation was sent. The letter was not returned undelivered.

7. The applicant did not attend the hearing on 10 March 2020. He did not contact the Tribunal to explain his non-appearance or to seek a postponement of the hearing. In the circumstances, the Tribunal decided to proceed to make a decision on the review based on the evidence before it.

8. The issues that arise on review are whether the applicants are owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.

13. 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

14. 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 AND FINDINGS

15. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·He was born on [date] at [Town 1] in Jiangsu Province.

    ·His father had a three-bedroom [apartment] in [Town 1]. In June 2008, the government notified his father that they were building [Facility 1] near his street and he needed to move to another area as the apartment was going to be demolished.

    ·They asked for reasonable compensation. The government informed them that they would get an apartment with the same area and 450 yuan per square metre for “decoration”. They accepted this. In November 2008, one month prior to the demolition, the government informed them that the compensation plan had changed because the building plan had not been approved by the city government. This meant that they could not get a new apartment.

    ·They were told they would receive 1000 yuan per square metre and 450 yuan per square metre for “decoration”. They did not agree to this because the normal price in [Town 1] is more than 2,500 yuan per square metre.

    ·In February 2009, demolition officers and Police went to his father’s apartment. They drove his parents out and wanted to demolish the apartment. His brothers and he fought with them. His wife and he used shovels and the Police were against him. They hit him and arrested him. He and his wife were tortured at the Police Station and not allowed to eat or drink.

    ·The Police accused him of assaulting the Police and obstructing them in their official duties. He was fined [Amount 1] yuan. He was imprisoned for [number] days. His relatives provided a guarantee, so they released him.

    ·He decided to petition the city and provincial governments. In April 2009, he went to Nantong city government and met with an [officer]. He provided him the details and he said they would “survey” it. Instead they passed on the information to the [Town 1] government.

    ·The demolition officer’s name is [Mr A] and he hated him. [Mr A] decided to retaliate and arranged for the Police to search his home every week, interfere with their normal life and had thugs hit him and his family members.

    ·In June 2009, he wanted to go to the Jiangsu Provincial government, but the Police stopped him at the Railway Station and took him to the Police Station. They said he is a “society unstable factor”. He was required to report to the Police every week. He could not stay in China, so he came to Australia.

    ·He always speaks to his family by telephone and they informed him that [Mr A] is looking for him because he thinks he made him lose his official position. He is seeking protection in Australia.

16. The applicant provided to the Department a copy of the bio data page of his Chinese passport.

17. The applicant was invited to attend an interview with the Department on 8 February 2017. He did not attend the interview. His application was refused on 3 March 2017.

18. The applicant has filed with the Tribunal a copy of his Chinese passport issued [in] 2007.

    Receiving country      

    The applicant claims to be a citizen of China. He provided the Tribunal with a copy of his Chinese passport. In the absence of any evidence to the contrary, the Tribunal finds that the applicant is a citizen of China. The Tribunal finds that China is the receiving country for the purpose of assessing his claims for protection under the refugee criteria and the complementary protection criteria.

    Third country protection

19. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Assessment of claims

20. During the first hearing, the Tribunal Officer discussed with the applicant his background, his family, his education, his employment and where he lived in China. During the course of answering these questions he gave brief reasons for why he left China and why he fears returning to China. He also made new claims during the hearing. He offered no explanation for why these claims were not made in his visa application.

21. As the applicant did not attend the second hearing on 10 March 2020, the Tribunal was unable to discuss his claims with him or discuss relevant country information with him. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is well founded or is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the decision maker to establish the relevant facts.

22. The Tribunal is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70.) The applicant’s failure to attend the second hearing has left the Tribunal with limited evidence on which to assess his claims.

23. The evidence before the Tribunal raises a number of inconsistencies and concerns which the Tribunal would have sought to clarify if the applicant had attended the hearing on 10 March 2020. First, in his visa application, the applicant claimed that in June 2008 the government notified his father that they were building a [Facility 1] near his street and he needed to move to another area as his apartment was going to be demolished. During the first hearing, he gave evidence that people from the government informed him that they wanted to build [Facility 2], his father’s house was to be demolished and his father would be provided with a new house that was roughly the same size as the old house. As he did not attend the second hearing, the Tribunal was unable to discuss with him the inconsistencies in his evidence in relation to why his father’s apartment needed to be demolished and who was informed of this.

24. Second, in his visa application, the applicant signed a statement stating that the information he supplied or caused to be supplied on or with Part C of Form 866 in his visa application is complete, correct and up-to-date in every detail. In answer to question 81 – Previous addresses - he stated that he lived at the same address in [Town 1], Jiangsu Province, China, from [date] (when he was born) to November 2009 (when he left China to come to Australia). This is not consistent with his claim that his father’s apartment was demolished in February 2009 as he would have had to move out of his family home to a different location in February 2009.

25. Third, during the first hearing, the applicant gave evidence that he lived at the same address in [Town 1], Jiangsu Province, China, from the time of his birth until he left China to come to Australia [in] November 2009. This is not consistent with his claim that his father’s apartment was demolished in February 2009 as he would have had to move out of his family home to a different location in February 2009.

26. Fourth, in Form 866C of his visa application, the applicant answered ‘no’ to question 86 - have you been found guilty or convicted of a crime or any offence in any country? This is not consistent with his claim that he was fined [Amount 1] yuan and imprisoned for [number] days for assaulting the Police and obstructing them in their official duties.

27. Fifth, in his visa application, the applicant signed a statement stating that the information he supplied or caused to be supplied on or with Part B of Form 866 in his visa application is complete, correct and up to date in every detail. In answer to question 3 – Character - he answered ‘no’ to the question has any person named in question 2 (he was named in question 2) ever overstayed a visa in any country including Australia? This is not consistent with his evidence to the Tribunal that he arrived in Australia [in] November 2009 on a Visitor visa that was valid for 3 months. This evidence indicates that he overstayed his Visitor visa by approximately 7 years.

28. If the applicant was prepared to provide false information in relation to this issue, it raises concerns for the Tribunal that he may have also provided false information in relation to his claims for protection. As he did not attend the second hearing, the Tribunal was unable to discuss this issue with him.

29. Sixth, the applicant gave evidence at the first hearing that he left China [in] November 2009. This is consistent with the records of the Department which indicate that he arrived in Australia [in] November 2009. He did not apply for a Protection visa until 1 December 2016.   He gave evidence that, at the beginning, he did not think about staying in Australia and thought he would hide out for a few years and return to China. He stated that his wife informed him that Police Officers and the demolition officer, [Mr B], telephoned her from time to time and harassed her and [Mr B] threatened her. He stated that his wife told him that [Mr B] could lose his job because of his appeal and as a result is seeking revenge. He stated that he will try and detain him if he returns to China.

30. The Tribunal finds the applicant’s explanation for his delay of over 7 years after his arrival in Australia to apply for protection to be unconvincing for several reasons. Firstly, if he was required to report weekly to the Police as claimed and failed to do so because he left China and came to Australia, he would have a problem with the Police irrespective of whether he returned to China shortly after his visit to Australia or a few years later. If he was willing to return to China after a few years, it raises doubts about the credibility of his claim that he had to report to the Police weekly.

31. Secondly, if [Mr A] or, alternatively, [Mr B] (as he referred to him in the first hearing) hated him, retaliated against him by arranging for the Police to search his home every week, interfered with their normal life and had thugs hit him and his family members whilst he was in China as claimed, it is highly unlikely that [Mr B]’s feelings towards him would have changed if he returned to China after a few years in Australia. His willingness to return to China raises doubts about the credibility of his claims in relation to [Mr B]. As he did not attend the second hearing, the Tribunal was unable to discuss these issues with him.

32. Seventh, during the first hearing, the applicant made a new claim that when he was stopped from going to the Jiangsu Provincial government to lodge a petition and was arrested at the Railway Station, he was detained for [number] days. He made no mention of being detained for [this longer period] in his visa application. He offered no explanation for his failure to mention this in his visa application. The Tribunal would expect that he would have wanted to put his best case forward in his visa application and, if he had been detained for [this longer period], he would have mentioned it in his visa application particularly as he had already mentioned being detained for [a shorter period] on the first occasion he was taken to the Police Station. This raises doubts about the credibility of this claim. As he did not attend the second hearing, the Tribunal was unable to discuss this issue with him.

33. Seventh, the applicant’s claims are that he was fined [Amount 1] yuan and imprisoned for [number] days for assaulting Police and obstructing them in the performance of their duties, that he was imprisoned for [a longer period] for being a “society unstable factor” and released on the condition that he report to Police once a week. However, he was able to retain his passport and leave China without a problem. This is not consistent with the country information. As he did not attend the second hearing, the Tribunal was unable to discuss the relevant country information with him.

34. If the applicant had attended the hearing on 10 March 2020, the Tribunal would have discussed his claims with him and tested their veracity, asked him to explain the inconsistencies in his evidence, discussed relevant country information with him, sought an explanation for his delay in applying for a Protection visa and raised issues with him. The Tribunal would have obtained his reasons for remaining in Australia as an unlawful non-citizen for approximately 7 years, thereby leaving himself at risk of being deported to China, if he feared returning to China.

1. On the limited evidence before it, the Tribunal is not satisfied that the applicant is of adverse interest to the Chinese authorities, that he left China for the reasons claimed or that he fears returning to China for the reasons claimed. On the evidence before it, the Tribunal is not satisfied that there is a real chance or a real risk that he would be at risk of serious harm or significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future. 

   Section 438 Certificate

2. The Tribunal has received from the Department a s.438 Certificate in relation to the non-disclosure of information provided to the Department on 30 May 2018. As the applicant did not attend the hearing on 10 March 2020, the Tribunal was unable to discuss this Certificate with him.

3. On 17 March 2020, the Tribunal wrote to the applicant and informed him of the existence of the s.438 Certificate and that it refers to information provided to the Department in confidence. The Tribunal informed him that it was of the view that it was appropriate to exercise its discretion and disclose the information to him. The Tribunal informed him that the information refers to him being charged with three criminal offences. The Tribunal informed him that it was of the view that the s.438 Certificate was valid, but the subject information was not relevant to the issues before the Tribunal. The Tribunal invited him to make submissions on the validity of the s.438 Certificate in writing by 30 March 2020.

4. The letter was sent to the applicant by email to his email address on 17 March 2020. This was the same email address to which the previous hearing invitations were sent. The letter was not returned undelivered. The Tribunal did not receive a response.

   Does Australia have protection obligations to the applicant under the refugee criterion?

5. On the limited evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that he would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of China. Therefore, he does not meet the definition of refugee set out in s.5H of the Act. 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) of the Act.

   Does Australia have protection obligations to the applicant under the complementary protection criterion?

6. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

7. As indicated above, the applicant has failed to provide sufficient details regarding his claims for protection. As the applicant did not attend the hearing on 10 March 2020, the Tribunal was unable to obtain further details of his claims, test their veracity, discuss relevant country information with him and raise issues with him. In view of the above findings and on the limited evidence before it, the Tribunal is not satisfied that the applicant is of adverse interest to the Chinese authorities, that he left China for the reasons claimed or that there is a real risk that he will suffer significant harm for any of the reasons claimed if he returns to China.

8. On the limited evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

   CONCLUSION

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

10. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons

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.

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