1801008 (Refugee)

[2022] AATA 999

1801008 (Refugee) [2022] AATA 999 (24 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801008

COUNTRY OF REFERENCE:                   China

MEMBER:L. Symons

DATE:24 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 24 February 2022 at 9:05am

CATCHWORDS

REFUGEE – protection visa – China – parents’ business – failure to pay bribes to local government – subsequent harassment by gangs and local government – inability to relocate – credibility issues – applicant’s residence in another city – financially supported by parents – parents’ business still operational – delay in protection application – decision under review affirmed

LEGISLATION

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

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 Home Affairs on 10 January 2018 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, arrived in Australia [in] January 2014 as the holder of a Student (TU-573) visa that was valid until 3 March 2018. This visa was cancelled on 9 May 2017. He thereafter remained in Australia as an unlawful non-citizen until 21 August 2017 when he was granted a Bridging C visa.

3. The applicant applied to the Department of Immigration (the Department) for a Protection visa on 30 June 2017. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 13 January 2018, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal, via video, on 23 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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

    ·He was born on [date] at Hebei, Hebei Province in China.

    ·His parents ran a business in his hometown for many years. The local government required them to pay bribes and when his parents could no longer afford to pay, gangsters went to his parents’ business and made threats. His father was kicked, the gangsters threatened to detain him and ‘do something worse’ to him if his parents would not pay the bribes.

    ·If he is returned to China, the local government will act on the threats that they made and detain him. He and his parents are really scared of the local government.

    ·He experienced mental agonies as a result of the local government threats. He was scared and experienced nightmares daily.

    ·He tried to seek help for his situation with the gangsters but he was unable to find help.

    ·He has been told by his parents that he will be detained if he returns to China. He believes that he will be harmed if he is returned because the gangsters regularly threaten his parents.

    ·If he is returned to China, the authorities will not protect him because the gangsters are employed by the local government. It is the local authorities that threaten to detain him.

    ·He is unable to relocate within China because Chinese authorities maintain contact and will monitor him wherever he goes.

13. The applicant provided the Department with a copy of the biodata page of his Chinese passport issued [in] 2013 and a small photograph of himself.

14. The applicant attended an interview with the Department on 10 January 2018. During the interview, he made the following new claims:

    ·His parents were assaulted by local gangsters at the request of the local authorities in April 2015. His father was hospitalised for one year.  

15. The applicant’s application for a Protection visa was refused on 10 January 2018.

16. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 10 January 2018.

    Receiving country

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

    Third country protection

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

    Assessment of claims

19. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in China, why he left China and why he fears returning to China. The Tribunal found aspects of his evidence to be vague, evasive, implausible and unconvincing. There were significant inconsistencies between his evidence to the Department and his evidence to the Tribunal. He was unable to provide a consistent and coherent account of events. His conduct was not consistent with his claims. The Tribunal finds that he is not a reliable or credible witness for the following reasons:

20. First, in his application for a Protection visa, the applicant claimed that his parents ran a business in his hometown for many years. He claimed that the local government required them to pay bribes and when his parents could no longer afford to pay them the gangsters went to his parents’ business and made threats. He claimed that his father was kicked, the gangsters threatened to detain him and ‘do something worse’ to him if his parents would not pay the bribes. He claimed that he experienced mental agonies as a result of the local government threats. He claimed that he was scared and experienced nightmares daily. He claimed that he is unable to relocate within China because Chinese authorities maintain contact and will monitor him wherever he goes.

21. During the hearing, the Tribunal discussed these claims with the applicant. He stated that his grandfather owned a [business] and when he retired his father took over the [business] in 2006 or 2007. His parents managed the [business] and continue to do so. When asked whether his parents had any problems running the business, he answered no. He then stated that his parents had to pay a local management fee. When asked what that fee was for, he responded that he did not know. He then stated that maybe it was a bribe and maybe they collected it with force. When asked who he was referring to as ‘they’, he responded that they are people from the local government or from [Agency 1].

22. The Tribunal asked the applicant how long his parents have been paying this local management fee. He responded that they have always had to pay it but in the beginning it was not much. They increased the amount when business was good. He then stated that they increased the amount every year. When asked when his parents stopped paying the local management fee, he initially stated at the time he left China. He then stated that his parents continued to pay the local management fee but refused to increase the amount. They then warned his parents to watch out for their son. He later claimed that they threatened to kidnap him if his parents did not pay the increased amount.

23. The applicant made new claims that his parents sent him to live in Shijiazhuang city for his safety. He lived there on his own for around a year prior to leaving China and travelling to Australia. When asked what difference it made in relation to whether he was there or not there as to whether his parents paid the money they were asked. He responded that his parents refused to pay the money so they used him as a threat and somehow hooligans got involved. When asked how it is that his parents are still able to run their [business], he responded by asking how they would eat and drink if they did not run their business. When the Tribunal pointed out that it would expect the local government to have shut down their business if they were not paying the local management fee, he agreed and said the business is very bad now.

24. The applicant’s evidence raises a number of issues for the Tribunal. Firstly, his claim that his parents refused to pay a bribe or, alternatively, the increase in the local management fee is not consistent with his claim in his visa application that his parents were really scared of the local government. The Tribunal is of the view that if they were scared of the local government as claimed and if the local government used gangsters or hooligans to enforce payment of the local management fee, it is implausible that they would have dared to antagonise them by refusing to pay the bribe or, alternately, refusing to pay the increase in the local management fee.

25. Secondly, if the applicant’s parents were no longer able to afford to pay the bribe or, alternatively, the increase in the local management fee as claimed it is implausible that they could afford to financially support him for a year while he lived in Shijiazhuang city prior to coming to Australia as well as pay for his application for a Student visa, airfare to Australia and tuition fees in Australia. His evidence to the Tribunal is that he did not do any paid work in China and just helped his parents by cleaning the [business]. He would therefore not have had the financial capacity to pay for any of these expenses himself.

26. Thirdly, the applicant claimed in his visa application that he is unable to relocate within China because Chinese authorities maintain contact and will monitor him wherever he goes. However, he was able to live in Shijiazhuang city in the same province (Hebei Province) for a year without being located. The Tribunal would expect that if his parents tried to thwart the threats made by the local government in relation to harming him by relocating him, the local government would have been able to use the resources available to them to locate him and pass on his address to the gangsters or hooligans they employed.

27. Fourthly, the applicant’s evidence is that he has an older sister who lives in China. He has not claimed that any threats were made against his sister or that any harm has befallen her. The Tribunal would expect that if the local government was resorting to threatening to harm him in order to put pressure on his parents to pay a bribe or, alternatively, the increase in the local management fee and they were unable to locate him, they would have threatened to harm his sister or actually harmed her to achieve that outcome. The Tribunal finds it implausible that no threats were made against his sister.

28. Fifthly, the Tribunal finds it implausible that the applicant’s parents are able to continue to run their [business] despite refusing to pay the local government a bribe or, alternatively, refusing to pay the increase in the local management fee. The Tribunal would expect that the local government would have penalised his parents for daring to challenge them by closing down their [business] or at least threatening to do so. This would have been a more effective form of persuasion as it would have affected their livelihood.

29. These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.

30. Second, in his visa application, the applicant claimed that when his parents could no longer afford to pay bribes gangsters went to his parents’ business and made threats. He claimed that his father was kicked. He has filed with the Tribunal a copy of the Department’s Decision Record dated 10 January 2018. It indicates that during his interview with the Department he gave a second version of events and claimed that his parents were assaulted by local gangsters at the request of the local authorities in April 2015 and his father was hospitalised for one year.  

31. During the hearing, the applicant gave a third version of events. He stated that after he left people would stand in front of his parents’ [business] every day. When his parents asked them to leave they hit, kicked and punched them. This happened in 2010 or 2011. When asked if his parents suffered any injuries, he responded that they did but the injuries were not serious. Where they were hit was swollen and painful. When asked if both his parents were injured, he responded mainly his father. When there was pushing and pulling his mother was hit. When asked whether they sought medical treatment, he responded that they went to the clinic in town to have a check up and get some medication for the swelling or pain.

32. The Tribunal asked the applicant whether his parents were involved in any other incidents like this. He responded yes. Prior to this there was also some pushing and pulling but this incident was the most serious. After the most serious incident (in 2010 or 2011), they continued to make threats and ask for money. His parents then asked him to leave (home). The threats did not stop after he left China. When asked what sort of threats were made after he left China, he responded that maybe it is a potential threat. If he returns to China, they will ask his parents to close the shop. They will take him as a threat and continue to collect the money. When asked whether his parents reported the assaults or the threats to the Police, he responded no, it was useless. They belong to the local government. They could not even report them to the city.

33. The Tribunal asked the applicant whether he had any problems in China. He responded that there is a possibility that he could be kidnapped as a threat. He was not kidnapped in China and did not have any problems. When asked why he claims that his returning to China would be a threat to him and his parents, he responded because they collect too much money and his parents will not give them the money. They want to take him for a threat. When asked what he thought would happen if he returned to China, he responded perhaps some conflict or problem might happen.

34. The Tribunal raised as issues with the applicant the inconsistencies in his evidence including the inconsistencies in relation to the injuries his father/parents suffered, when he/they suffered these injuries, where he/they received medical treatment, how long the treatment took and its concerns in relation to his credibility and the veracity of his claims. He declined to respond.

35. Third, the applicant’s conduct was not consistent with his claims. His evidence was that he came to Australia [in] January 2014 on a Student visa but he did not undertake any studies in Australia. His Student visa was cancelled because he did not pay his fees. He has worked in Australia in the [specified] industry and in a [business].

36. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 10 January 2018. It sets out his immigration history in Australia. The Tribunal raised as issues with the applicant his immigration history in Australia and his delay in applying for a Protection visa. The Tribunal noted that he came to Australia [in] January 2014 as the holder of a Subclass 573 Student visa which is a temporary visa. It required him to leave Australia before his Student visa expired. His Student visa was cancelled on 9 May 2017 and he thereafter remained in Australia as an unlawful non-citizen until 21 August 2017. During that period, he could have been deported to China.

37. The applicant applied for a Protection visa on 30 June 2017. This was 3 ½ years after he arrived in Australia. The Tribunal noted that it would expect that if he had been living away from home for about a year before he left China for his safety, he feared being kidnapped if he returned to China and had to leave home at midnight to get to the airport (for his safety), he would have sought immigration advice and applied for protection soon after his arrival in Australia. The Tribunal noted that his conduct was not consistent with his claims and raised concerns in relation to the credibility of his claims. He declined to respond.

38. The applicant’s conduct in living in Australia unlawfully and his delay in applying for a Protection visa raise issues in relation to his credibility and the veracity of his claims.

1. Fourth, during the hearing, the applicant gave evidence that he and his partner ([name], dob [deleted]) have been in a relationship for 6 years and they got married [in] February 2021. They have a daughter ([name], dob [deleted])  who was born in Australia. She attends pre-school. His partner came to Australia on a Student visa which has expired. He does not know when it expired. His partner and his daughter are living in Australia unlawfully. When asked why they are living here unlawfully, he responded because he is here. When asked why he did not include his partner and his daughter in his application for a Protection visa, he responded that he had the idea to include them. However, he heard that when the child was born he had 2 months to include her in his visa application. He did not know if he should include his wife in his application for a Protection visa.

2. The applicant’s evidence leads the Tribunal to the conclusion that he applied for a Protection visa to extend his stay in Australia so that he could continue to work here and support his partner and daughter. This raises further issues in relation to his credibility and the veracity of his claims.

   Other considerations

3. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on China and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Findings

4. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that he is not a witness of truth. The Tribunal finds that he has fabricated his material claims for the purpose of obtaining a Protection visa.

5. The Tribunal accepts that the applicant was born on [date] at Hebei, Hebei Province in China. The Tribunal accepts that his parents and older sister live in China. The Tribunal accepts that his grandfather owned a [business] which his father took over when his grandfather retired in 2006 or 2007. The Tribunal accepts that his parents have run that [business] since then and continue to do so. The Tribunal accepts that he helped out in his parents’ [business] when he was in China.

6. The Tribunal accepts that the applicant came to Australia [in] January 2014 as the holder of a Subclass 573 Student visa but did not undertake any studies in Australia. The Tribunal accepts that his Student visa was cancelled on 9 May 2017 and he thereafter remained in Australia as an unlawful non-citizen until 21 August 2017. The Tribunal accepts that he has been working [at workplaces] and in [businesses] since his arrival in Australia. 

7. The Tribunal accepts that the applicant and his partner [have] been in a relationship for 6 years and they got married [in] February 2021. The Tribunal accepts that they have a daughter [who] was born in Australia and attends pre-school. The Tribunal accepts that his partner came to Australia on a Student visa which has expired. The Tribunal notes that he claims that his partner and his daughter are living in Australia unlawfully and are doing so because he is here.

8. The Tribunal does not accept that the applicant’s parents paid the local government or [Agency 1] bribes or, alternatively, local management fees. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he was or is of adverse interest to gangsters, hooligans, local government authorities or any other Chinese authority. The Tribunal does not accept that he came to Australia for the reasons claimed or that he fears returning to China for the reasons claimed.  

9. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future. 

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

10. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

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

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

12. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future. 

13. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

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

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

    DECISION

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

L. Symons
         Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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