1728865 (Refugee)

[2024] AATA 1350

1728865 (Refugee) [2024] AATA 1350 (8 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728865

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Jennifer Ermert

DATE:8 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 08 March 2024 at 10:35am

CATCHWORDS

REFUGEE – Protection Visa – Indonesia – feared the debt collector – enforcement of a security by a creditor against a defaulting debtor would not in and of itself amount to ‘significant harm’ – not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji – delay in applying for protection in Australia – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 26 October 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 Indonesia, applied for the visa on 11 July 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2) of the Act.

3. The applicant, who is not represented in relation to the review, appeared before the Tribunal on 1 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. 

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether or not the applicant is a person in respect of whom Australia has protection obligations under s 36(2) of the Act because the applicant is either a refugee or a person who engages complementary protection obligation, or is a member of the same family unit as such a person who holds a protection visa of the same class.  

Identity and country of nationality

1. The applicant claims to be a citizen of Indonesia. He provided a scan of a certified copy of the biodata page of his Indonesian passport, as well as a scan of a certified copy of his Indonesian identity card to the Department. In the absence of evidence that the identity documents provided are bogus documents within the meaning of s 5(1) of the Act, the Department has accepted the applicant is a national of Indonesia and has considered and assessed the applicant’s protection claims against Indonesia in relation to s 36(2)(a) and s 36(2)(aa) of the Act.

2. The Tribunal has considered these identity documents on the applicant’s departmental file. The Tribunal has also had regard to the original of the applicant’s Indonesian passport sighted at the hearing, and in respect of which a scanned copy was provided to the Tribunal. The Tribunal is satisfied that the applicant is a citizen of Indonesia in the absence of contrary evidence. The Tribunal therefore finds Indonesia is the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act.

Immigration history and protection claims

1. The applicant is a [age] year old man from Bali, Indonesia. He arrived in Australia on [date] August 2016 on a Class FA Subclass 600 Visitor visa, and has not departed since. He applied for the grant of a protection visa on 11 July 2017.

2. The applicant’s handwritten claims, which he stated were made by a friend who helped him complete the protection visa application form, were very brief.  The applicant claimed he has debt in Indonesia that he cannot repay.  The debt collector has physically harmed him as a warning and to intimidate him.  He feared the debt collector would harm him and his family and that they would seize his house, but he could not ask anyone for help because it was his fault that he has so much debt. He cannot return to Indonesia because the debt collector would find him, possibly with the help of police.

3. At the hearing on 1 March 2024, the applicant gave evidence that he is married with an adult daughter ([age] years old) who is currently studying at university, and a [age] year old son. All of his family are currently in Bali, although they are now living in Denpasar rather than in the village in [village] where they lived with the applicant until the applicant’s departure.

4. The applicant left Bali because of debt. He claimed he borrowed money in 2001 from a loan shark named [Mr A] who was from the same village. He borrowed IDR 90 million at an interest rate of 5% to open a small business to [supplement] his income from working as a [Occupation 1] in a [company]. After the 2002 Bali bombing when tourist numbers dwindled, his [business] went bankrupt from lack of tourist income. 

5. When pressed on whether there is any evidence of the loan such as a written loan agreement that documented details of the parties involved and the terms of the loan, the applicant said there is not and claimed that in his village all transactions such as this were cash-based and were negotiated and agreed to orally.  When the Tribunal expressed doubts as to the veracity of this, the applicant claimed this is just how things were done in the village.

6. After his business went bankrupt, the applicant sold all the [products] but was forced to sell them very cheaply. He kept some of the money to pay for his family’s living expenses, and gave the rest to [Mr A]. With his income as a [Occupation 1], the applicant was able to continue to pay off a little bit of the interest on the loan totalling IDR 1 million, but he was otherwise unable to sustain the monthly repayment of IDR 700,000 which was what he paid before the Bali bombing.

7. The applicant claimed over the next 14 years until his departure from Bali, [Mr A] visited his house once every month or two to harass him over the loan repayment. He claimed that the persistent harassment over the significant debt and accumulating interest (which caused the overall debt to balloon to IDR 900 million over time) placed him under a lot of stress and pressure, but otherwise nothing has happened to him, nor has he experienced any harm.

8. The applicant’s wife and children moved to Denpasar after the applicant left Bali to escape the ongoing harassment from [Mr A] and to find work to help pay off the debts. In 2019, his wife was able to arrange for a corporate company called [Company 1], which she found through word of mouth, to take over the debt at a reduced interest rate of 1.5%, i.e. instead of owing money to [Mr A] the debt is now owed to [Company 1]. With the reduced interest rate and with the money he was able to make in Australia after getting work rights, the applicant has been able to pay IDR 7 million (approximately AUD 700) each month to [Company 1] and has successfully brought the debt back down to IDR 90 million. The applicant estimated that if things continued as they are, he would be able to fully pay off the debt in maybe 2.5 years.

9. When pressed on whether he has any evidence of the debt having been taken over by [Company 1], the applicant provided the Tribunal with a copy of a statement and acknowledgement of debt to [Company 1] signed by his wife, and records of loan repayments made to date, which he downloaded on his mobile phone and emailed to the Tribunal.

10. The applicant claimed he cannot return to Indonesia because he would not be able pay [Company 1] as he does now.  The Tribunal put to the applicant that he and his wife could work to repay the debt but it would just take longer. The applicant claimed that his wife does not have any skills and whilst he could find a job, the income would be too low to enable him to pay off the debt whilst also supporting his family. The applicant conceded that whilst he does not currently fear persecution in Indonesia, he is worried that if he is unable to pay off the debt, he and his family would lose the house in Denpasar which is held by [Company 1] as security. The applicant also claimed that he could be threatened, but he could not to go to the police if it happened because it is his own fault for being in debt. Without any skills, he also did not believe he could relocate to bigger cities in Indonesia in search of better-paying jobs.

11. The Tribunal asked the applicant about the 11 months delay after his arrival in Australia in making his protection visa application, despite being in debt and allegedly being in fear of harm from an unnamed debt collector at the time. The applicant responded that he did not know about protection visas when he first arrived. The Tribunal also asked about the discrepancy between his protection visa application in which he claimed to have been physically harmed by the debt collector as a warning and his oral evidence that nothing had happened to him even though [Mr A] constantly visited and harassed him to pay back the money owed.  The applicant responded that maybe because it has been a long time and he could not remember.  

REASONS FOR THE TRIBUNAL’S DECISION

1. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed because the applicant does not meet any of the criteria in s 36(2) for the grant of a protection visa.

Credibility of the applicant’s evidence

1. The first step in determining whether the applicant is eligible for the grant of a protection visa is to determine the credibility of his claims. The Tribunal is aware of the importance of adopting a reasonable approach in making credibility findings. In Guo v MIEA (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:

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

2. The Tribunal also notes the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) states at paragraph [196] that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”

3. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

4. The Tribunal has serious doubts about the applicant’s claims about why there was not a written loan agreement between him and [Mr A]. Given the large amount of money involved (IDR 90 million), it is implausible that there was nothing in writing to evidence the borrowing, even in a small village.  The Tribunal also finds it inconceivable that a corporate company like [Company 1] would willingly take over the applicant’s debt without any written evidence of the original loan, due to the unquantified liability it would otherwise be taking on. 

5. Despite the Tribunal’s doubts about the veracity of the applicant’s explanation with respect to the lack of written agreement between him and [Mr A], it is the Tribunal’s view that, ultimately, nothing turns on it.  Given the applicant’s outstanding debt from that loan has been taken over by [Company 1], any prior interaction the applicant had with [Mr A] is no longer of any relevance for the purposes of determining whether the applicant meets one of the criteria in s 36(2), and there is no reason for the Tribunal to believe otherwise.

6. The Tribunal has also considered the explanations offered by the applicant for the delay in making his protection visa application and for the discrepancy between his protection visa application and his oral evidence at the hearing.  The Tribunal accepts the explanation for the application delay but does not accept the explanation for the discrepancy with respect to the claimed experience of physical harm. If the applicant was indeed physically harmed by a debt collector as a form of intimidation and warning, the Tribunal does not believe that the applicant would have failed to mention it in his oral evidence because he ‘forgot about it’, even if it was many years ago. The Tribunal considers his evidence that he was constantly harassed by [Mr A] but was otherwise unharmed to be true, and finds that the physical harm claimed in his protection visa application was possibly an embellishment included by the friend who completed the application form for him.

7. Regardless, the Tribunal finds the credibility issues discussed above are not sufficient to impugn the entirety of the applicant’s evidence which the Tribunal assesses to be plausible overall.  The Tribunal accepts he did borrow money to start a small [business] which collapsed because of the Bali bombing. The Tribunal accepts he had difficulty repaying [Mr A], and that at one point his debt ballooned to IDR 900 million. The Tribunal accepts that although [Mr A] did not cause him any physical harm including through the use of debt collectors, the ongoing harassment and the escalating debt caused the applicant (and his family) severe stress. The Tribunal accepts that the debt was taken over by [Company 1] in 2019 and that the applicant has been able to progressively reduce the debt with income from working in Australia.

Assessment of refugee status

1. Notwithstanding the Tribunal’s acceptance of the main substance of the applicant’s claims, the Tribunal finds that he does not meet the refugee criterion in s 36(2)(a) of the Act. To satisfy the definition of ‘refugee’ in order to meet s 36(2)(a), the applicant must demonstrate that he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion:          s 5J(1)(a).  Further, the reason, or the reasons, must be the essential and significant reason/s for the persecution feared: s 5J(4)(a).

2. On the basis of the applicant’s evidence, his protection claims can be boiled down to fears of losing his house which would render him and his family homeless, if he returned to Indonesia without paying off the debt in full.  The applicant has not claimed that [Company 1] would confiscate the house for reasons of his race, religion, nationality, membership of a particular social group or his political opinion.  If [Company 1] confiscated and sold the house, it would be because the applicant failed to pay off his outstanding debt.  This is the essential and significant reason for the harm that the applicant claimed to fear but this is not one of the reasons enumerated in              s 5J(1)(a) of the Act.

3. As for the applicant’s claim that he could also be threatened with possible harm if he did not pay off the debt, the Tribunal rejects this claim.  The Tribunal acknowledges there is presently nothing by reference to which it can say that [Company 1] would not, in addition to confiscating the house, threaten the applicant with harm if he failed to pay off the debt.  However, there is equally no evidence to support the applicant’s claim that [Company 1] would threaten to harm him, and the Tribunal finds the applicant’s claimed fear in this regard is groundless speculation at best.   

4. For the reasons discussed, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as required for the purposes of the definition of ‘refugee’. The Tribunal therefore finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.    

Complementary protection assessment

1. Having determined that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) is not the end of the matter; the Tribunal must now proceed to consider whether the applicant is instead a person in respect of whom Australia has protection obligations because of the complementary protection ground set out in s 36(2)(aa) of the Act.  This requires the Tribunal to assess whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that the applicant would suffer significant harm.

1. Significant harm is exhaustively defined in s 36(2A) of the Act.  Pursuant to that section, a person will suffer significant harm if:

   (a)the person will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the person; 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.

2. Based on the applicant’s evidence, the Tribunal accepts that the confiscation and sale of his house is a possible consequence if he was unable to pay off the remaining debt to [Company 1].  However, the enforcement of a security by a creditor against a defaulting debtor would not in and of itself amount to ‘significant harm’ within the meaning of s 36(2A).  The applicant has also not presented any evidence that would persuade the Tribunal to believe that [Company 1] would resort to underhanded, violent or degrading measures amounting to significant harm in order to recover, or ‘punish’ the applicant for, any shortfall that is not able to be covered by the confiscation and sale of the house.

3. The Tribunal has closely examined the statement and acknowledgement of debt to [Company 1] (signed by the applicant’s wife) and records of the loan repayments the applicant has made to date.  These documents show that the applicant has indeed reduced the debt from a total of IDR 976 million in July 2019 (which the Tribunal notes is more than the IDR 900 million stated by the applicant during the hearing) down to slightly less than IDR 90 million as at February 2024.  Having managed to substantially repay the loan, the Tribunal finds there are no substantial grounds for it to believe that if the applicant was removed from Australia to Indonesia, that there is a real risk he would lose his house and would (together with his family) become homeless as a necessary and foreseeable consequence of that removal.  At worst, the applicant and his wife might both have to find work to repay the remaining amount and renegotiate payments over a more extended period than the July 2025 deadline currently stipulated for the remaining amount, to take account of the applicant’s reduced earning capacity in Indonesia as compared to Australia which the Tribunal accepts is likely.

4. In summary, for the reasons given above, the Tribunal is not satisfied there are substantial grounds for believing that, if the applicant was removed from Australia to Indonesia, there is a real risk he would suffer significant harm as defined in s 36(2A) at the hands of [Company 1] or any other person as a necessary and foreseeable consequence of that removal.  It follows that the applicant is not a person in respect of whom Australia has protection obligations on the basis of complementary protection.

5. The applicant does not meet the criterion in s 36(2)(aa) of the Act.

Other criteria – member of family unit

1. Finally, there is no evidence before the Tribunal to suggest that the applicant is a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class as that applied for by the applicant. Therefore, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or (c) of the Act. 

DECISION

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

Jennifer Ermert
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…