1718466 (Refugee)

[2022] AATA 4969

1718466 (Refugee) [2022] AATA 4969 (22 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718466

COUNTRY OF REFERENCE:                   China

MEMBER:Penelope Hunter

DATE:22 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 22 November 2022 at 11:23am

CATCHWORDS

REFUGEE – Protection visa – China – religion – both parents are practitioners of Falun Gong – one child policy – "black child" – social compensation fee – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 425, 499

Migration Regulations 1994, 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 24 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 11 July 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations.  

3. For the following reasons the Tribunal has determined that the decision under review should be affirmed.

   Criteria for a protection visa

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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 OF Claims and evidence

10. The applicant is a [age]-year-old female born in [NSW] and to parents of Chinese nationality. She lives in Sydney, Australia with her mother, [name], born [date], her father, [name], born [date], and her sister[name], born [date]. Her two brothers, [both] reside in China.

11. On 11 July 2016, the applicant’s parents lodged the protection visa application on the applicant’s behalf, and provided the following supporting evidence to the Department:

    a.A copy of the applicant’s brother’s [Chinese] birth certificate.

    b.A statement written by the applicant’s mother on the applicant’s behalf.

    c.A copy of the applicant’s father’s Chinese passport issued [date] 2004.

    d.A copy of the applicant’s mother’s Chinese passport issued [date] 2007.

    e.A copy of the applicant’s brother’s [NSW] birth certificate.

    f.A copy of the applicant’s sister’s [NSW] birth certificate.

    g.A copy of the applicant’s NSW birth certificate.

12. In her statement, the applicant’s mother, sets out the reasons that the applicant is seeking protection as follows (in summary):

    a.The applicant’s parents are from the countryside of Guangdong Province, China. The applicant is the fourth child of the family. As her birth has far exceeded the family size regulated by the birth-control policy, if the applicant is to return to China, she is afraid of a lot of insurmountable difficulties including the heavy penalties inflicted by the family-control office.

    b.If her family fail to pay the penalty for violating the family-control policy, she will not be able to get her residence permit, and consequently, she will not be treated equally in many social welfare aspects. She will be discriminated against in the medical care and education. Presently her family cannot afford the penalty.

    c.One of the consequences of the local government's campaign to push the family-control was that many peasants like the applicant’s family  had to flee their hometown and wandered about in other places to make a living. But the same unified birth-control policy awaited them and the applicant would inevitably suffer the same fate of becoming socially marginalized "black children" with a bleak future. She would face increasing pressure not only socially but also psychologically.

    d.She asked her parents to file a protection application because the applicant wants to get her deserved human rights of survival and dignity.

    e.As a girl baby, she was so insignificant a creature in the eyes of the peasants in countryside. In a place where old tradition and convention prevailed, a girl baby couldn't enjoy the same social status as a boy baby could. A girl baby was easily regarded as a good riddance and abandoned at will. In fact, she couldn't predict what measures her parents would take, in their extreme poverty, to treat the life of her, their little daughter. Without the protection by the government or legal system, no one was able to make a solemn guarantee that she would be safe and equal. Many girl babies in her hometown were ignored by their parents and their tribe members, so when their parents felt the pressure of life or were treated unjustly by the local government, they would tend to send their girl babies to others, drown them or even let them, through some channels, be adopted by foreigners. Many a parent, oppressed by the financial or family crises, traded their girl babies for economic gains, and many a parent refused to re-claim their own daughters back even if they knew their daughters were living miserably in the families that had adopted them.

    f.The situation in her country was caused by a state policy, it was an unreasonable policy, one that lacked human care, morality or mercy. She despises any government that has passed these laws and she didn't want to live in such a country.

    g.The applicant’s parents were both practitioners of Falun Gong. Their faith had caused them endless misfortunes in China. Since her parents' arrival in Australia, they had lodged applications for protection visas but they didn't succeed. Even so, her parents never gave up their faith, but instead, they kept on practicing their faith with a great perseverance. It was indisputable that they would surely suffer persecution in China for doing so. Her parents' fate was closely related to her own. So many cold and hard facts showed that the family members of Falun Gong practitioners in China had no prospect of their own. They were not only deprived of the equal right of receiving education, but also kept out of the mainstream society even if they could ever enter a college. They were strictly denied access to any governmental offices or large state-owned enterprises. What was worse, as most of them failed to pass the political examination (were labelled as incorrect politically); they had become the targets of discrimination by people from almost all strata of the society. In a word, Falun Gong practitioners were living at the lowest rung of the social ladder, not to mention those who were persecuted and their family members were outcast and those whose organs had been harvested alive.

    h.She is filing this application not only for herself but also for her family. Her application is an extension of her parents' applications. She was begging the Australian government to consider the practical circumstances of her family.

    Delegate’s Interview

13. The applicant’s mother attended an interview with a delegate of the Department on 12 July 2017 on the applicant’s behalf. At the interview, the applicant’s mother provided the Department with several photos of her and her family, including the applicant, attending Falun Gong activities which were claimed to take place in Sydney on 6 May 2017 and 2 July 2017.

    Delegate’s Decision

14. The delegate in their decision record, a copy of which the applicant has submitted to the Tribunal, provided the following reasons for the visa refusal (in summary):

    a.The delegate noted that the Falun Gong claims of the applicant’s parents had already been assessed, the Department had found the claims that they were Falun Gong practitioners not to be credible and this had been upheld when subject to Tribunal and judicial review. When questioned whether there was additional evidence that could be offered to demonstrate that she was a genuine practitioner the applicant’s mother referred to photographs submitted. The delegate noted that these only reflected a recent event and did not demonstrate an ongoing practice of Falun Gong, given the applicant’s parents had been in Australia since 2012. It is recorded that the applicant’s mother informed the delegate that she could not provide further evidence to support her Falun Gong claims as she and the applicant’s father were busy raising children and working. The applicant’s mother was questioned in relation to Falun Gong claims and the delegate was not satisfied that the applicant’s parents were Falun Gong practitioners.

    b.The delegate considered country information concerning household registration, known as Hukou, in China since August 2015 where the payment of social compensation fees were no longer a pre-requisite for accepting an application for household registration and other changes to Chinese family planning policies meant ‘black children’ were not discriminated against. While it was accepted that her parents may have to pay a fine or social compensation fee for being in breach of the Chinese government family planning regulation, the delegate was not satisfied that the applicant would face real chance of harm for this reason.

    c.When questioned by the delegate the applicant’s mother said that she would do all that she could to protect the applicant and she would not harm her. On this evidence the delegate did not accept the claims that the applicant would be discarded by her parents, given away or drowned because she is a baby girl. The delegate believed that some of the claims were written in a deliberately misleading and emotive manner to garnish sympathy and detract from the misleading and non-credible claims made by the applicant’s parents.

    Tribunal Application

15. The applicant lodged an application for review with the Tribunal. Other than the delegate’s decision record, the applicant did not provide any further documents or submissions to support the review application.

16. On 13 September 2022, the Tribunal wrote to the applicant and advised that it was unable to make a favourable decision on the material before it. The applicant was invited pursuant to s 425(1) of the Act to appear before the Tribunal on 21 October 2022 to give evidence and present arguments relating to the issues arising from the application under review.

17. On 15 September 2022, the Tribunal received a Response to Hearing invitation form completed by the applicant’s mother on behalf of the applicant. It was indicated that the applicant would not participate in the hearing and consent was provided to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear. Further, the applicant gave no indication of any additional documents upon which she intended to rely before the Tribunal.

18. As the applicant consented to the Tribunal making a decision on the review application without a hearing, the Tribunal hearing of 21 October 2022 was cancelled. The Tribunal has received no further documents or submissions and the Tribunal has made a decision on the information before it.

    CONSIDERATION OF Claims and evidence

    Nationality

19. The applicant has presented a copy of her birth certificate, and her parents’ passports to the Department. The applicant was born in Australia to Chinese citizens. It is accepted that the applicant by descent is a Chinese a national and in the absence of any evidence to the contrary. The Tribunal will assess her claims on this basis. There is no evidence before the Tribunal that the applicant would be excluded from Australia’s protection obligations upon the grounds in s 36(3).

    Does the applicant have a well-founded fear of persecution and is the applicant a refugee?

20. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

21. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.

22. The  purpose of the Tribunal hearing was for the applicant to give evidence and present arguments arising from the issues relevant to the decision under review. The Tribunal advised the applicant that it needed to hold a hearing as it could not make a favourable decision on the information that it had. The applicant has chosen not to appear before the Tribunal or provide any additional information to support her claims. The Tribunal has not had the opportunity to test her claims and to determine whether they are factual or credible.

23. From the information contained in her visa application it appears that the applicant fears returning to China because she is the fourth child in her family and they may be subject to China’s family planning laws, she will be considered a black child, she is a baby girl and may be abandoned by her family and finally because her parents are Falun Gong practitioners.

24. The Tribunal has considered the impact of China’s family planning policies on the applicant. It is noted that over time these laws have become liberalised. The country information does not support that the applicant will be denied a social residence permit, or hukou as she claims. In 2016, the national government ordered all local governments to register children without a hukou, even if they were born ‘out of plan’.[1] In these particular circumstances, the country information indicates that the applicant would not be denied a hukou, or public health or education services in China. The Tribunal is not satisfied that she would be treated unequally in many social welfare aspects, and would consequently suffer serious harm on this basis. It is not accepted that she would become a socially marginalized black child. It is not accepted on the information before the Tribunal that the applicant would be denied human rights and dignity.

    [1] DFAT Country Information Report, People’s Republic of China, 22 December 2021 at paragraph 3.118

25. With respect to the imposition of a social compensation fee, it is reported that the government in China is now concerned with the declining birth rate and ageing population.[2] DFAT reports that in 2021, the laws were changed to allow couples to have three children[3] and social compensation fees levied at against people with ‘out of plan’ children were abolished.[4]  Even though the applicant is the fourth child of her family it is further reported that enforcing child limits has become a low priority for government.[5] While DFAT acknowledges that implementation differs from place to place, it also reports that it is not aware of evidence that breaches of family planning laws are severely punished anywhere in China,[6] or of patterns of discrimination against people with out of plan children.[7] In this respect while the applicant’s parents may still be required to pay a social compensation fee, this compensation fee would be a law of general application for the purposes of the refugee criterion in s 36 of the Act. It is not accepted on the limited information before the Tribunal, that this liability of her parents would amount to persecution of the applicant under the Act. It rejects the implied claim that payment of the fee would cause the applicant serious harm.  Country information indicates that policies are flexible and that there is now opportunity to reach a payment plan to address any economic concerns and the Tribunal is not satisfied that the applicant would be subject to harm as a consequence of China’s family planning policies or because she is the fourth child in her family or that for these reasons she has a well-founded fear of persecution.

    [2] DFAT Country Information Report, People’s Republic of China, 22 December 2021 at 3.119

    [3] As above

    [4] As above

    [5] As above at paragraph 3.121

    [6] As above

    [7] As above

1. With respect to the claims of the applicant that she fears being abandoned at will by her parents, ignored by her parents, sent to others, drowned or adopted by foreigners or other measures that her parents would take because she is a girl baby, the Tribunal is unable to be satisfied that these are credible or even maintained. It takes note of the evidence presented by the applicant’s mother during the interview with the delegate that she would do all she could to protect the applicant and would not harm her. The applicant has provided the Tribunal with a copy of the delegate’s decision record which contained the finding that this claim was not found to be credible. The Tribunal has not had the opportunity to question the applicant’s parents or explore with the applicant the basis for this claim or that it is a belief validly held. It cannot be satisfied on the statement presented with the visa application that it is reliable or credible. Consequently, the Tribunal is not able to be satisfied that the applicant would be subjected to any harm because she is a girl baby for the reasons she has claimed should she return to China now or in the reasonably foreseeable future.

2. The delegate records that the applicant’s parents had previously themselves made an application for a protection visa which included claims that they were Falun Gong practitioners, and these claims were found not to be credible. The delegate again tested these claims when they interviewed the applicant’s mother in relation to the visa under review and again they were found not to be credible. The Tribunal has been provided with no additional evidence or submission to support the claims that the applicant’s parents are committed to the adherence of the practice of Falun Gong, that they are known practitioners or would continued to practice Falun Gong if returned to China. The photographs submitted at the time of the delegates interview add little value to the assessment of the Tribunal as to whether these claims are genuine. On the brief material provided, without the opportunity to test these claims and review any supporting evidence, the Tribunal cannot be satisfied that the parents of the applicant are Falun Gong practitioners, or that the applicant belongs to a family of Falun Gong practitioners, or that the applicant herself has any commitment to the practice of Falun Gong. It follows that the Tribunal can not be satisfied that the applicant would be subject to harm if she returned to China in the reasonably foreseeable future for this reason.

3. The Tribunal has not accepted that there is a real chance that the applicant will experience serious harm in China by reason of her inability to access a hukou, that her parents are required to pay a compensation fee, or that she is a black child, that she is a baby girl, or because her parents are followers of Falun Gong. The Tribunal is also not satisfied that the applicant has produced evidence to demonstrate that cumulatively these claims would give rise to a real chance that the applicant would be subject to serious harm. The Tribunal finds that the applicant fears of persecution are not well-founded. 

4. 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) of the Act.

   Is the applicant a person entitled to complementary protection

5. 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).

6. For the reasons traversed above, the Tribunal has been unable to test the claims of the applicant that her parents are genuine, or perceived to be, Falun Gong practitioners, or that the applicant will be abandoned at will by her parents, ignored by her parents, sent to others, drowned or even be adopted by foreigners or other measures that her parents would take because she is a girl baby. As the applicant declined to attend a hearing, or provided any supporting material to assist her case it is unable to be satisfied on the information before it that these claims are reliable, factual, credible and further that they are still maintained. The Tribunal also is not satisfied that on the relevant country information the applicant would be denied a hukou or socially marginalised as a black child. The Tribunal is also notes the reported relaxation of family planning laws in China and is not satisfied that the imposition of any social compensation fee upon her parents is a real risk faced by the applicant personally or would cause the applicant to experience significant harm.

7. Having considered the applicants’ circumstances singularly, and on a cumulative basis, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable of consequence of the applicant being removed from Australia to China, there is a real risk she will be arbitrarily deprived of life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

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

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

   decision

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

    Penelope Hunter
    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.

    …