1729338 (Refugee)

[2018] AATA 4485

1729338 (Refugee) [2018] AATA 4485 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729338

COUNTRY OF REFERENCE:                  South Africa

MEMBER:Ann Duffield

DATE:8 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 08 October 2018 at 12:28pm

CATCHWORDS
REFUGEE – Protection visa – South Africa – false identification – particular social group – abandoned by husband – victim of domestic abuse – Congolese refugee – women – victim of physical and sexual assault – attacked by Zulus – subject of economic exploitation – health concerns – credibility issues – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 November 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of the Democratic Republic of the Congo applied for the visas on 19 June 2017. The delegate refused to grant the visas on the basis that they were not owed protection obligations by Australia.

3. The Tribunal conducted two hearings six months or so apart at the request of the applicant in order to allow her to source and receive additional information and/or documents to support her claims. The first hearing was on 13 February 2018 and the second was on 4 September 2018. The hearings were attended by the applicant and her representative and assisted by an interpreter. The secondary applicants did not attend.

4. The Tribunal was provided with a number of documents and submissions in that intervening period including after the final hearing addressing the Tribunal’s particularised concerns. Where relevant that information and responses are included in the consideration of claims and evidence below.

5. For the following reasons the Tribunal affirms the decision under review.

BACKGROUND AND IDENTITY

1. The applicant, Ms N, born [in date], arrived in Australia with her two sons on South African passports. Those passports indicated that they were all born in South Africa. The passports also indicated all were South African citizens. Upon her arrival in Australia the applicant claimed that her passport was a false passport issued in a false name and her correct identity was in fact Ms E and she was a citizen of the Democratic Republic of the Congo born on [another date].

2. The Department of Home Affairs conducted document checks on all three passports and determined that they were all genuine passports which had not been tampered with. The delegate formed this view as the security features of South African passports are highly sophisticated and not readily amenable to alteration. Also, the document contained a number of visas for various African countries for the period 2014-2015.

3. The applicant claims to have married [name deleted] (DOB [date]) [in] August 2004 in the Democratic Republic of the Congo. She claims that she stopped her schooling at this time. The applicant claims that her husband was abusive towards her and she returned to her home in Kinshasa to finish high school, which she did in May [year]. She claims that she and her family then fled to South Africa in around 2005. She claims she accidentally reconnected with her husband in Cape Town in 2005 at a funeral and they recommenced their relationship in Durban. She claims her husband subsequently deserted her and the children towards the end of 2016. She claims that she has not seen him or been in contact with him since that time.

4. The delegate found the applicant unreliable and her evidence lacking in credibility.

5. The delegate made a finding that the applicant was Ms N as indicated in her South African passport and therefore assessed her protection claims on the basis that South Africa was the returning country, not the Democratic Republic of the Congo. The delegate also found, and the applicant admitted, that both her sons, born [in date] ([age] years old) and [in date] ([age] years old) were South African citizens. Furthermore, the delegate did not accept that the applicant was harmed as claimed in South Africa or that she was abused by her husband and abandoned by him. The delegate presented evidence to the applicant that indicated that she and her husband were in communication and appeared to be in a continuing, loving, married relationship.

6. The delegate found that the applicant was not entitled to Australia’s protection on either Refugee or Complementary Protection criteria.

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 (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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is owed Australia’s protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Identity

1. The applicant has consistently and forcefully maintained that she is Ms E and not Ms N as indicated on her South African passport. She claims that her passport is in a false name. She also claims that her children’s passports are also false, however the applicant has also admitted that the children are entitled to South African citizenship and would therefore have been able to obtain their passports lawfully.

2. The applicant’s claims in relation to the acquisition of these passports are without credibility. She claims to have obtained them from a man she calls [Mr A]. She is, however, unable to provide any other relevant information about [Mr A], including an address, phone or other contact details. She claims that the phone that she used to contact [Mr A] was lost and she has been unable to locate him. This is despite the Tribunal giving the applicant more than six months to obtain any additional relevant information that corroborates her account.

3. The applicant claims that [Mr A] rescued her from an attack by Nigerians. She claims that he intervened and took her and her children back to his house where he subsequently arranged for photographs of herself and her children to be taken. He then arranged for the passports to be issued. She says that she did not pay for these documents and did not sign anything. She claims that she did not receive the documents or know anything about her travel arrangements until [Mr A] gave them to her and told her about her trip at the airport.

4. The applicant has no idea how [Mr A] arranged to obtain visas to [Country 1] for herself and the children. She claims that she did not know that she was travelling to [Country 1] until she called him from [another country]. She claims that she did not fill out any application forms for visas to [Country 1] for either herself or her children and claims that the forms allegedly signed by her ex-husband giving permission for the children to travel were confected by [Mr A].

5. The applicant has provided the Tribunal with a copy of her marriage certificate in the name of Ms E. It notes her parents’ names as corroborated on her original application and her place of birth as DRC. It does not contain her date of birth. The Tribunal notes that the document appears old and fragile and quite likely a genuine document.

6. For the following reasons the Tribunal is satisfied that the applicant is Ms N as indicated in her South African passport, and her children, the secondary applicants are also South African citizens and that none of the passports is a false document in false names.

7. The South African passports belonging to the applicant and her children are, regrettably, now unavailable. The applicant claims that they were stolen, along with some either items, during a home invasion. She has provided a police report of this alleged invasion. The applicant claims that somewhere between midnight and 9am her property was entered. The intruder smashed the glass door in the kitchen and entered her bedroom to remove her handbag. Neither she nor the children heard anything. The Tribunal also notes that of the items reported missing by the applicant, including phone, immigration document, purse and handbag, passports were not amongst them. Not hers. Not the children’s.

8. Thankfully, prior to their disappearance, they were thoroughly examined by the Department of Home Affairs document examiners and found to be genuine documents that had not been tampered with. The South African government has also verified their genuine-ness. The Tribunal accepts this.

9. The applicant’s South African passport was issued in 2014 and has some evidence of travel to other countries, in the form of visa stamps, in it. The applicant claims that the passport was given to her by [Mr A] in 2017 at the airport prior to her travel and she knows nothing of these stamps. However, the passport has not been tampered with. It has not been photo substituted indicating that the applicant was, in fact, lawfully issued this passport by the South African authorities, without the assistance of [Mr A], in 2014 not 2016 as she claims. In the Tribunal’s mind, this renders the rest of her account of acquiring her passport false in every aspect.

10. The Tribunal is satisfied that the applicant’s identity is Ms N as indicated in her South African passport and that she is a South African citizen.

11. The applicant has provided copies of the children’s birth certificates issued [in] 2016 identifying their mother as Ms E. The Tribunal put to the applicant that the children’s’ passports were issued [in] 2013. The Tribunal suggested that they must have had other birth certificates in order for those passports to be issued at that time. The applicant claimed that she only received the children’s passports from [Mr A] at the airport in 2017. She claims that the original birth certificates were lost and the ones dated in 2016 were substitutes. The Tribunal does not accept this account. It does not accept that the birth certificates dated 2016 are authentic documents.

12. As the applicant’s children are entitled to South African citizenship through their father it is illogical for the applicant to go to all the trouble of arranging false passports for them. The passports are issued in the names of the children in December 2013. Their dates of birth are correct. Given the Tribunal’s concerns about the applicant’s credibility, the Tribunal is satisfied that the secondary applicants are also South African citizens, that their passports are genuine and not falsified in any way.

13. The Tribunal has considered the applicant’s marriage certificate and has formed a view that the applicant may well have married as Ms E in DRC, but for whatever reason and it is not for the Tribunal to speculate on these reasons, the applicant has, at some stage, changed her name to Ms N, and has lawfully acquired South African citizenship.

Refugee claims DRC

1. The Tribunal has considered the applicant’s UNHCR document identifying her as Ms E. The document is old and appears genuine, however, for the reasons above, the Tribunal is satisfied that even if Ms E has accepted as a refugee by the UNHCR in 2008 she has subsequently changed her name and acquired South African citizenship.

2. The applicant’s account of her journey from DRC to South Africa as a refugee fleeing persecution on the basis of her and her father’s political opinion in 2004 is also unconvincing and likely contrived. The applicant was unable to give the Tribunal a clear account of the journey, saying that it took more than three weeks but less than a month. She said at first that she and her family departed in a public bus and then a truck without windows so that she did not know where they were going. Later in her evidence the truck had a high window where air came in but she could not see outside.

3. Despite being [age] years of age at the time and having spent three weeks on this transport, the applicant claims that she did not speak to anyone, not even her father, about their journey at the time or subsequently. She did not know the route, was unable to provide any spontaneous evidence about any occurrences on the way or the frequency of stops. She said that they were not required to provide any documents at border crossings, for example. At one point she said that they travelled all night without stopping and they never got off the bus/truck except to eat and take toilet breaks.

4. The Tribunal put to the applicant that it found her account implausible and lacking in credibility. The Tribunal put to the applicant that the drive from Kinshasa to [Town 1], according to Google maps took about [a certain time] non-stop. The Tribunal asked the applicant why it took around three weeks. She claimed that she didn’t know the route that they took. The Tribunal accepts that it is unlikely that the journey, given poor infrastructure would have taken only 2 or so days. However, the applicant’s account of her journey casts significant doubt that she actually took the journey she claims.

5. After arriving in [Town 1], she claims the police took her and her family to Durban where they were questioned. They were given a document that was valid for six month and got refugee status eventually in 2008. She told the tribunal that she lived with her parents and in 2007-2008 she fell in love with her husband again and they lived together until around November 2016. She claims that she has not seen him since.

6. The Tribunal put to the applicant that she claimed that she suffered abuse at the hands of her husband and wondered why she would take him back. She said that he came to apologise.

7. The Tribunal does not accept the applicant is a refugee from DRC. Whilst it accepts that she may be of DRC origin and been married in the DRC, it finds her account of her departure as a refugee from DRC as so implausible as to be fanciful. The Tribunal makes this finding notwithstanding the UNHCR documents identifying Ms E as a refugee.

Refugee claims in South Africa

1. The applicant claims that if she is returned to South Africa she will be persecuted because she is a Congolese refugee and a woman. She claims that she has been attacked and beaten on numerous occasions in different parts of South Africa since she arrived in 2004. She claims in February 2017 she was attacked by a group of Zulus and that she was raped in March 2017. She claims that her husband deserted her at the end of 2016 and she has not seen him since. She fears that if she returns she will continue to face persecution and suffer significant harm.

2. The applicant’s account of these events lacked credibility and relevant details. The applicant claims that she was rescued by a white man named [Mr A] from a group of Zulus in February 2017 whilst she was living in Pretoria. However she has neither further details of that person nor any explanation as to why he would help her obtain expensive false passports and other documents at no cost. She does not have any contact details for him. The Tribunal does not accept that a person would put her live, and the lives of her two young children, in the hands of a stranger. Given her accounts of sexual and economic exploitation, it’s hard to believe that the applicant would do such a thing. She claims that she did not give [Mr A] the details of her husband or other information which was used to complete the visa application forms for [Country 1]. However the details were on the form and on the basis of that information the applicant and her children obtained visas to visit [Country 1]. It is not plausible that the applicant does not know how [Mr A] obtained hers, her husband’s and her children’s personal biographical information without asking her or her providing it to him.

3. The applicant claims that she was in Pretoria in February 2017. The Tribunal put to her that she had provided it with a copy of her son’s school report which states that he was attending a school in [Town 2] as at [February] 2018. The Tribunal asked her how it was that she claims to be attacked in Pretoria at that time when documents she provided indicate she was in [Town 2] which is around 550 kms away. She said that [Mr A] provided that school report.

4. It is also incomprehensible that the applicant and her children were provided with passports issued prior to their alleged acquisition by her in 2017.Her children’s’ passports were issued in 2013 and hers was issued in 2014. It seems to the Tribunal that if one was to acquire genuine passports in false names it seems unnecessarily complicated to then have them issued at prior points in time.

1. The Tribunal does not accept that the applicant has been attacked, or raped, or suffered any harm whatsoever whilst resident in South Africa, for any reason, convention related or otherwise.

2. The applicant claims that her husband deserted her and the children in late 2016. However the delegate presented her with evidence from her [social media] account that she and her husband appeared to be in a loving relationship and were in touch beyond 2016. The applicant denied she had an account then went on to explain that the person in the [social media] pictures was not her husband but his [brother]. She further explained that the photographs were taken in 2015.

3. The Tribunal does not accept that the applicant’s husband has deserted her, but that he completed the visa application forms to allow the children to travel with the applicant and further, that they remain in contact.

Health issues

1. The Tribunal has considered the multiple health issues suffered by the applicant and her children. The applicant does not accept that the applicant’s health concerns have affected her ability to remember details of events or otherwise affect her ability to give evidence.

2. Nor does the Tribunal have any evidence before it that the applicant and her children would not receive the medical assistance she requires if she returned to South Africa or that her inability to access it would cause significant harms such that she would meet the requirements of the complementary protection criteria.

Credibility

1. The applicant’s evidence at the hearing was evasive, incomplete, lacking in relevant detail and frequently implausible. The Tribunal understands that people are nervous at a hearing and the use of interpreters is sometimes imperfect. However the Tribunal was satisfied that the applicant was given a fair hearing and every opportunity to put her evidence, clarify and restate remarks and otherwise respond to the Tribunal’s particularised concerns. The applicant was also given an opportunity to provide further documents, which she has done and which has been included, where relevant in the findings and reasons above.

2. The Tribunal also understands that its task of fact-finding may involve an assessment of an applicant's credibility. In this context, the Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility.

   The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …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.

3. The Tribunal also accepts 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' (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

4. The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191] as follows:

   … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

5. The Tribunal put to the applicant its concerns about her credibility during the Tribunal hearing and this matter is dealt with in the context of the findings and reasons above.

6. Bearing these matters in mind, the Tribunal finds that the applicant is not a witness of truth. It finds that her account of every relevant matter is untrue. The Tribunal does not given any weight to any of the applicant’s documents and submissions for those reasons. The Tribunal accepts that the South African passports issued to the applicant and her children are the only documents or evidence upon which the Tribunal can rely.

7. The Tribunal finds the applicant does not have a well-founded fear of persecution on return to South Africa or the DRC. 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).

8. 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).

9. Having found that the applicant’s account of her reasons for departing dthe DRC and South Africa and for not wishing to return are entirely fabricated, the Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

None of the applicants are owed protection obligations

1. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

1. The Tribunal affirms the decision not to grant the applicants protection visas.

Ann Duffield
Senior 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.

…

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 them 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.

..

36Protection visas – criteria provided for by this Act

…

(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.

…