1708966 (Refugee)

[2021] AATA 4366

1708966 (Refugee) [2021] AATA 4366 (3 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708966

COUNTRY OF REFERENCE:                   Colombia

MEMBER:Roslyn Smidt

DATE:3 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 3 September 2021 at  3:41 PM

CATCHWORDS

REFUGEE – Protection visa – Colombia –fear of harm from members of the Revolutionary Armed Forces of Colombia (FARC) or similar armed groups– delay in lodging the visa application–credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 499

Migration Regulations 1994, 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 28 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 is citizen of Colombia, applied for the visa on 1 November 2016.

   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. 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.

   BACKGROUND

9. The applicant is a [age]-year-old woman from Medellin in Colombia. She obtained [a] degree in 2012 and a qualification in [another area] in 2014. From June 2014 until 5 May 2016 she worked as a [Occupation 1] at a company in Medellin.

10. The applicant travelled to [a country] to visit her father in 2012 and 2013. She visited [another country] in October 2015.

11. The applicant applied for a student visa on 11 March 2016. The visa was granted on 31 March 2016 and she arrived in Australia [in] May 2016. She applied for protection on 1 November 2016.

    SUMMARY OF CLAIMS

12. The applicant fears that she will be killed by members of the Revolutionary Armed Forces of Colombia (FARC) or similar armed groups in Colombia because she refused to acquiesce to their demands to engage in an illegal operation related to her work as a [Occupation 1] for a [business] in early 2016.

    CLAIMS AND EVIDENCE

    Evidence to the Department

13. In a statement provided in November 2016 the applicant said that she had received an anonymous telephone call from someone who identified himself as a member of FARC on [date] December 2015. He demanded that she supply him with details of colleagues who had the authority to receive packaged items for storage at the company headquarters and branches.  She was shocked and hung up the telephone. Two weeks later the man contacted her again with the same request. He said that he knew her details and position in the company and that FARC wanted her to arrange storage of small valuable items by store managers. She told him that this would place her at risk of losing her job or facing problems with the Colombian authorities. She did not agree to his request. He warned her that she would be kidnapped or killed if she refused to cooperate and told her she would be contacted shortly. She planned to make a report to the police, but her mother said that this was not a good idea and she should leave the country as soon as possible. She did not tell anyone else about the threats.  She enrolled in [a] course in Australia.

14. The applicant said that FARC operated throughout Colombia and despite a recent peace agreement between FARC and the government it was still active and she remained at risk of serious harm.

15. The applicant provided documents relating to her education and employment, but no independent information on the situation in Colombia.

16. The applicant was invited to attend an interview with a delegate to discuss her claims in April 2017 but failed to attend.  The delegate refused the application because she was not satisfied on the evidence provided that she was entitled to protection.

    Evidence to the Tribunal

17. On 13 August 2021 the applicant provided a number of documents relating to her education, her employment and her relationship status. She also provided copies of the following:

    ·     Human Rights Watch World Report on Colombia 2021, which provides an overview of a range of problems in Colombia.  It notes in 2020 that civilians in various parts of the country suffered serious abuses at the hands of ELN guerrillas, FARC dissidents, and paramilitary successor groups. Targets included human rights defenders, journalists, indigenous and Afro-Colombian leaders, and other community activists. Most of this occurred in areas where illegal economic activities, such as drug production and trafficking, are common. These include Putumayo, Cauca, Valle del Cauca and Nariño states in the south; the Catatumbo region, on the border with Venezuela; and the Bajo Cauca region. It also names the southern state of Cauca as an area in which FARC dissidents have committed abuses and Choco state as an area of conflict between the ELN and former right-wing paramilitary groups.

    ·     An article from The Conversation entitled ‘Colombia’s fragile peace deal threatened by the return of mass killings’ which gives an overview of the peace process and the continuing problems in Colombia. It notes that paramilitary groups, drug trafficking organisations and former FARC militia members continue to carry out massacres, mainly in territory previously controlled by FARC where rival groups compete for dominance and there is little in the way of government support. In the author’s view the main reason for the resurgence of massacres and other violent attacks in Colombia is to deter people from supporting the peace process because of its likely impact on illegal or criminal activities.

    ·     Travel advice on Colombia issued by the Australia government which advises Australians not to travel to Colombia because of the COVID-19 pandemic. It notes that while security has improved terrorist attacks remain a significant risk. Terrorism and civil unrest make some areas dangerous, including areas within 20 kilometres of Venezuela and Ecuador and the cities of Buenaventura and Tumaco. The main target of terrorists is the Colombian government and economic infrastructure.

18. The applicant also provided three articles on the situation of Colombian refugees in neighbouring countries. At the hearing she explained that she had provided these as they explained why she had come to Australia rather than fleeing to a neighbouring country.

19. At the hearing on 19 August 2021 the applicant confirmed that her fears related to her refusal to cooperate with FARC in early 2016.  She said that her fear had grown since she left Colombia and she now feared not only members of FARC but members of other armed groups such the ELN (National Liberation Army).

20. I noted that the applicant had stated that she feared FARC because she refused to provide them with names of some of her colleagues because they wanted these colleagues to perform tasks for them. I advised her that I had some difficult accepting that she would have been approached by FARC with this request in 2016 as it was not my understanding that the group had a significant presence in Medellin at that time. I also observed that it appeared unlikely they would have approached her for this information rather than use trusted contacts. The applicant said that based on her knowledge of what happened to others she knew that the group operated in this way and she continued to fear them.

21. Later in the hearing the applicant added that apart from her mother she had not told anyone in Colombia that she had been approached by FARC, not even the police. She said that based on her knowledge of what had happened in Colombia, including to people she knew personally, she believed she was in danger and had no choice but to  leave the country. She said that when she was a teenager the parents of a friend were killed and they forced to flee their home. While she was at university one of her friends had to pay the guerrillas in order to work on a certain project. I advised her that I accepted that these abuses had occurred in Colombia in the past, but it was not my understanding that they were occurring in Medellin in 2016. The applicant maintained that such things were happening in Medellin at that time because the government had reduced the presence in order to advance the peace process.

22. I advised the applicant that I had difficulty understanding why she had waited to obtain a student visa for Australia rather than leave the area as soon as possible after being contacted by FARC if she feared for her life. She said that she believed that was her only option.  She could not go to nearby countries because they were also involved in armed conflict and as a Colombian it was difficult to obtain a visa for other countries. In addition, she wanted a visa which gave her the right to work, which reduced her options even further.

23. I advised the applicant that her failure to apply for protection until nearly six months after arriving in Australia also suggested to me that she had not been fearful of harm in Colombia at that time. The applicant made no comment.

24. I advised the applicant that even if I accepted her claims regarding the events of 2015 and 2016, the situation in Colombia had changed following the signing of the peace accord in 2016 and while I was aware that some members of FARC had refused to sign this peace accord it was not my understanding that these people operated in Medellin and I found it extremely unlikely that she would be of continuing interest them because she had refused to provide them with names of her colleagues in early 2016. 

25. The applicant said that is was not possible to talk of peace unless it was accompanied by equity, justice, solidarity and truth and this had not occurred in Colombia.  She said that the process had begun in 2012 and continued until 2016, but peace still does not exist as FARC and other groups continued to conduct violent activities in Colombia. She said that FARC dissidents were now cooperating with other guerrilla groups and she believed that FARC members would share information on people who had refused to cooperate with them with these groups and she feared that she would to be at risk of harm FARC and other. She said these groups considered themselves to be an alternative government and applied their own rules. 

26. I advised the applicant that my consideration of her clams required me to determine whether she currently faced a real chance of serious harm in Colombia, not whether the peace process had achieved the goals she had mentioned.  

27. I observed that the applicant appeared to be suggesting that FARC had kept a record of people who had refused to cooperate with them, including people who were involved in minor incidents, and had passed these names to other armed groups who would also seek to harm them many years later.  I asked the applicant if my understanding of her claims was correct. She spoke about the failures of the peace process and the continuation armed violence by some groups who were now merged or cooperating. She said that she did not want to suggest that she was an important person who would be targeted directly, but there was no guarantee that these groups would not have adverse information about her and would not seek to harm her if she returned to Colombia. I observed that the question for me was not whether her safety could be completely guaranteed, but whether there was a real chance she would be harmed and even if I accepted her claims regarding the events of 2015, the chance that she would be harmed for the reasons she claimed if she returned to Colombia now appeared to be extremely remote. She indicated that she did not understand the real chance test. I provided a brief explanation. She said that she was still afraid.

28. I noted that the applicant appeared to be speculating on what might happen based on general information regarding the peace process and asked if she could provide any more specific evidence on why she believed she would be harmed if she returned to Colombia, for example information on the people she knew who had faced similar problems. She said that she did not have examples of anyone close to her who was experiencing problems in circumstances similar to her own as she only communicated with her family in Colombia. However, she followed the news on developments which suggested that the violence had increased and she was afraid of what might happen if she returned.

29. The applicant said that she also feared the government because they did not protect people in her situation because they were viewed as damaging the reputation of the government. She said that she had heard that the government had connections to the groups she feared and she feared that they might advise them if she returned to Colombia.

30. I advised the applicant that I was unaware of any evidence which suggested that asylum seekers were at risk of harm from the government of Colombia because they were seen as damaging the country’s reputation. I observed that she had left Colombia as a student and there appeared to be no reason why the government would think she had left to seek protection or that her departure would damage the country’s reputation or seek to harm her if she returned. The applicant said that it was very difficult to obtain information to support her claims as it was not publicly available and only know to people in Colombia. I observed that people frequently travelled to and from Colombia and advised her that it was not my understanding the freedom of information in Colombia was so lacking that there would be no evidence that that the Colombia government treated returning asylum seekers in this way.  She said that she understood.

31. On 23 August 2021 the applicant provided the following country information:

    ·     An Al Jazeera article dated 26 April 2021 on recent violence and displacement in Colombia.

    ·     An article from Al Jazeera dated 4 May 2021 regarding problems faced by Colombian asylum seekers in Spain. It includes a review of past abuses by FARC and the ongoing violence in Colombia. In relation to the current situation it paints a similar picture to information in the HRW report provided earlier.

    ·     An article dated 14 July 2021 from the Times of India on the growing problem of displacement in Colombia caused by dissident FARC rebels ELN guerillas, armed drug-trafficking groups and right-wing paramilitaries who are all battling for control of lucrative cocaine and illegal mining zones which are mostly in rural areas, particularly in border regions.

    ·     An article dated 2 July 2021 published b Global Americans which also reports on the resurgence of  violence in Colombia. It provides broadly similar picture of the violence. It also states that an estimated 40% of armed FARC members have remobilized since 2016. This source of this estimate is not provided.

    Country information

32. The following is intended to provide a context for the applicant’s claims.[1]

    [1]See for example US Department of State Country Reports on Human Rights Practices: Colombia 2020 30 March 2021 Section G Abuses in Internal Conflict; World Report 2021: Colombia | Human Rights Watch (hrw.org)

33. Conflict between the FARC and the government resulted in an estimated 250,000 deaths and widespread human rights abuses in five decades prior to November 2016 when a peace deal was reached. 

34. FARC disarmed and surrendered its weapons to the United Nations on 27 June 2017 and later formed a legal political party. A small minority of FARC fighters rejected the terms of the peace agreement and refused to disarm. Some disarmed but then joined existing guerrilla groups or created new groups, partly in reaction to inadequate reintegration programs.  In 2019 the military estimated that FARC dissident groups had more than 2,300 members. Other guerrilla groups also operate in Colombia. These groups sometimes come into conflict with each other and with the government. They have also committed abuses against civilians. Reports suggest that most of the current violence occurs in the countryside and the mountainous region bordering Venezuela and that much of it involves small criminal groups with little or no political purpose but sometimes led by former FARC fighters. Several hundred former FARC members have also been murdered.

    CONSIDERATION OF THE CLAIMS AND EVIDENCE

35. I found the applicant’s account of her reasons for leaving Colombia in May 2016 unpersuasive. I find it unlikely that members of FARC would have contacted the applicant in late 2015 to obtain the names of some of her colleagues so they could approach these colleagues to ask them to store or transport packages rather than use trusted supporters. More significantly, there is no suggestion that the applicant left her home or went into hiding during the four months she remained in Colombia after being contacted by FARC and she continued to work at the same job until about 10 days before her departure for Australia.  If she had been genuinely fearful of FARC, I believe that she would have relocated or taken some steps to protect herself. Her failure to do so suggests that she was not fearful of FARC during that time which casts doubt on the claim she had been threatened by FARC. I also note that she did not seek protection in Australia until nearly six months after her arrival. While I acknowledge that she held a visa throughout this period, according to her evidence she obtained a visa for Australia specifically so that she could flee Colombia were her life was in danger. If this was true, I believe she would have sought protection as soon as possible.

1. In any event, even if I accept that the applicant was contacted and threatened twice by FARC in late 2015 and early 2016, there is no suggestion that anyone from FARC contacted her, threatened her or attempted to harm during her final months in Colombia, which I find a strong indication that she was not of  interest to the group after mid-January 2016. More significantly, the situation in Colombia has changed significantly since 2016.

2. As noted in the country information section and the reports provided by the applicant, peace negotiations were completed in 2016 and most FARC members disarmed in 2017. While a relatively small number continue to engage in violent activities, they do not have a strong presence in Medellin. There is nothing in the evidence which suggests that they would have any interest in pursuing the applicant merely because she refused to provide them with contact details for some of her colleagues or assist them to arrange for the storage of unnamed goods six and a half years ago.  And while I acknowledge that some FARC members have joined or cooperate with other armed groups which continue to engage in violent activities, I find the claim that members of these groups, which have little or no presence in Medellin, would have any interested in pursuing or harming the applicant because she refused to cooperated with FARC in the manner claimed in  early 2016 far-fetched and implausible.

3. I have also noted the applicant’s claim that the Colombian government might inform FARC dissidents or others that she has returned to Colombia which would make her vulnerable to harm. However, this is mere speculation unsupported by any evidence and I have given it no weight.

4. After considering all of the relevant evidence I do not accept that the applicant faces a real chance of suffering serious or significant harm from FARC or other armed groups or anyone else because she refused to cooperate with FARC in 2016.

5. I have also considered the possibility that the applicant would be at risk of harm on return to Colombia as result of the continuing violence perpetrated by dissident FARC members or other armed groups. While I acknowledge that this violence has had a significant impact in some parts of Colombia, the independent evidence does not suggest that Medellin is one of these areas. All of the available evidence, including the information provided by the applicant, indicates that most of the violence occurs in rural area often on the border. Most of it occurs between armed groups or between armed groups and the government and is often related to criminal activities. Civilian targets include community activists and human rights defenders in areas where there is a high level of violence, although ordinary civilians in these areas are also at risk of harm.

6. There is nothing in the evidence which suggests that someone with the applicant’s background who resides in Medellin faces real chance of experiencing serious or real risk of significant harm as a result of the continuing violence or abuses by FARC dissidents or other armed groups if she returns to Colombia within the reasonably foreseeable future.

7. Finally, I have considered the applicant’s claim that she would be at risk of harm from the Colombian government because they are concerned that the reputation of the country suffers when people flee and seek asylum. As noted at the hearing, the applicant left on a student visa and there is no reason to suppose that the government would be aware that she sought asylum in Australia.  In any event, no independent evidence has been provided in support of this claim and I am unaware of any evidence which suggests that the government of Colombia views citizens who flee violence as damaging the countries reputation. According to the 2020 US Department of State Country Report on Human Rights in Colombia the government cooperated with UNHCR and other humanitarian organisations in providing protection and assistance to returning refugees. I do not accept that there is a real chance that the applicant would suffer serious or significant harm on return to Colombia because she left in 2016 and sought asylum in Australia.

   Issues relating to the applicant’s fiancée

8. In her initial applicant the applicant she had contacted the Colombian Consulate at some time to denounce her former fiancée who had been sending her threatening messages. She did not claim to fear harm for that reason. During the hearing on 16 August 2021 the applicant said that she did not fear harm in Colombia for reasons other than discussed during the hearing. Nevertheless, I arranged a further hearing to provide the applicant with an opportunity to provide evidence regarding any fears she might have in relation to her former fiancé. She indicated that she had not intended to suggest that she was claiming protection because of problems with her fiancée and said that she was not fearful he would harm her if she returned to Colombia.

   DOES THE APPLICANT MEET THE REFUGEE CRITERION?

9. After considering the applicant’s claims individually and cumulatively, I am not satisfied that she faces a real chance of suffering serious harm for any of the reasons in s.5J(1),  if she returns to Colombia now or in the reasonably foreseeable future. Therefore, I am not satisfied that she has a well-founded fear of persecution in Colombia for any of the reasons set out in s.5J(1).

   DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?

10. After considering the applicant’s claims individually and cumulatively, I am not satisfied that she faces a real risk of suffering significant harm on return to Colombia for any reason. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Colombia, there is a real risk that she will suffer significant harm.

    CONCLUDING PARAGRAPHS

11. 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).

12. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

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

    Roslyn Smidt
    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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