1803673 (Refugee)

[2021] AATA 4642

1803673 (Refugee) [2021] AATA 4642 (21 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803673

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Alison Murphy

DATE:21 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies
s 36(2)(a) of the Migration Act; and

(ii)that the Tribunal has no jurisdiction in relation to the second named applicant; and

(iii)that the third and fourth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 21 September 2021 at 11:21am

CATCHWORDS

REFUGEE – protection visa – Iraq – particular social group – women in Iraq – educated, professional woman who has actively advocated for women’s rights in Iraq – political opinion – commitment to women’s advocacy – Gender-based violence – no jurisdiction in relation to the second named applicant – membership of the same family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 36, 65, 91, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

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 17 January 2018 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 Iraq, applied for the visas on 14 September 2015. The delegate refused to grant the visas on the basis that the applicants were not owed protection by Australia.

3. On 31 January 2020, the second named applicant withdrew from the review application. As a consequence of his withdrawal, the Tribunal has no jurisdiction in respect of the second named applicant.

4. The first named applicant appeared before the Tribunal to give evidence and make arguments in support of her application on 15 September 2021. Due to COVID-19 public health directions in operation in Victoria at that time, the hearing proceeded by video. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicant was represented by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether any or all of the applicants meet one or more of the alternative criteria in s 36(2)(a), (aa), (b) or (c), that is whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person.

7. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Country of nationality

9. The first, second and third named applicants travelled to Australia on apparently genuine Iraqi passports, copies of which are contained on the Departmental file. They have at all times stated that they are citizens of Iraq and they have been assessed on that basis by the Department. The fourth named applicant was born in Australia and takes her Iraqi citizenship from her parents. The Tribunal finds that each of the applicants is an Iraqi citizen and has assessed their claims against that country.

   The applicant’s personal background

10. The first named applicant is a [age]-year-old woman from Baghdad, Iraq (the applicant). The second named applicant is her husband (the applicant husband), who has returned to Iraq in circumstances discussed later in these reasons. The third and fourth named applicants are their son and daughter, aged [age] and[age] respectively (the applicant children).

11. The applicant husband arrived in Australia [in] 2013 as the holder of a student visa, studying a [degree] at [University 1] after receiving a scholarship from the Iraqi government. The applicant and their children arrived in Australia as dependents on the applicant husband’s visa [in] January 2014.

12. The applicant grew up in Baghdad, Iraq. Her father was a [Occupation 1] and her mother (now deceased) a [occupation]. She is one of [number] siblings, all educated professionals. [Siblings’ occupations deleted].

13. The applicant attended primary and secondary school in Baghdad, before obtaining a [degree] from [a] University followed by [another qualification].

14. She then worked at [a workplace] in 2009/2010 before commencing work at [Organisation 1] in May 2010. [Organisation 1] is a non-government organisation providing support services for [women]. I note the applicant has provided an identity card issued to her by [Organisation 1] as well as a letter relating to the termination of her employment in November 2013.

15. The applicant and her children joined their husband and father in Australia in January 2014.

16. I accept each of the above matters to be true.

    The applicant’s claims for protection

17. In essence, the applicant claims to face persecution in Iraq because of her profile as an educated, professional woman who has actively advocated for women’s rights in Iraq.

18. The central factual issue in this review is whether the applicant has engaged in or been perceived to be engaged in activism or advocacy for women’s rights in Iraq as claimed. Related to this issue is the assessment of whether she has in the past been subjected to serious harm in Iraq for this reason, and whether there is a real chance she will again face serious or significant harm for that reason if she is returned to Iraq, now or in the reasonably foreseeable future.

19. The refugee assessment is a forward-looking test and it is not necessary for a person seeking asylum to prove they have suffered past harm in their country of origin. However in most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past.[1]

    [1] MIEA v Guo (1997) 191 CLR 559 at 575

20. The delegate did not accept the applicant’s claims to have been involved in advocacy and activism in Iraq. While the delegate accepted that the applicant’s background and employment history meant she would be viewed in Iraq as a ‘modern and educated professional’, the delegate did not accept that the applicant’s duties at [Organisation 1] included advocacy or activism. The delegate did not accept the applicant had received threats in Iraq for reasons of her advocacy or activism, nor that she would face harm on return for her political opinion or her role as a women’s advocate.

21. There is a significant amount of information and evidence available to the Tribunal that was not available to the delegate. As well, I consider the applicant to be a credible witness as to her history and experiences in Iraq. The applicant’s evidence is in all material respects consistent with her known history, the documents she has provided and independent country information about the situation in Iraq.

22. In its correspondence, [Organisation 1] describes itself as a [service] providing [support] for women, [and other groups]. The applicant’s consistent evidence is that in the context of her employment at [Organisation 1] she provided support services and counselling to vulnerable women. Those services included [information deleted]. Her clients were mostly women suffering from [deleted].

23. The delegate accepted that the applicant was employed by [Organisation 1] between 2010 and late 2013, but did not accept her work for that organisation could properly be described as ‘activism’ or ‘advocacy’. The basis of the delegate’s finding in this regard appears to be that while the applicant provided evidence of her employment, she did not provide evidence of her specific duties in the course of that employment. As well the delegate noted that a [specified] report [stated] that it had funded [Organisation 1] to provide [Service 1]. The delegate formed the view that an organisation providing [Service 1] would not also engage in advocacy of women’s rights or hire [unqualified] staff such as the applicant.

24. I do not accept that to be the case, rather I consider it likely that an organisation in receipt of foreign aid funding to provide [Service 1] for women would also be engaged in advocacy for women’s rights. Similarly I consider it likely that [unqualified] support staff would be involved such activities. I note that the termination letter from [Organisation 1] describes the applicant’s employment as ‘women’s activist’ and the organisation’s own activities as ‘providing support [for specified] women’.

25. DFAT reports that women in Iraq are constrained to traditional family roles, following years of repression in a strongly conservative culture and a loss of access to basic services. It notes that Iraqi women have limited access to employment and education and that women head approximately one in 10 households, most of whom are widowed, divorced, separated or caring for sick spouses. DFAT reports that this group is more exposed to poverty and food insecurity and particularly disadvantaged in terms of access to education, employment and adequate shelter.[2]

    [2] Australian Department of Foreign Affairs and Trade DFAT Country Information Report: Iraq 17 August 2020, 3.116–3.119

26. Gender-based violence is reportedly common in Iraq and domestic violence remains pervasive.[3] As Islam is the official religion of Iraq, ‘the situation of women very much depends on the implementation of Islamic law and on the priorities and interpretations of male-led religious authorities’.[4] I accept that in a strongly conservative and religious culture such as Iraq, the applicant’s activities of support, counselling and education for vulnerable women for [Organisation 1] are properly characterised as ‘advocacy’ and/or ‘activism’.

    [3] Ibid at 3.120

    [4] Ibid at 3.132

27. The applicant has consistently described the harassment and threats she was subjected to while working at [Organisation 1] from a [group]associated with the prominent Shi’ite cleric, [Muqtada al-Sadr]. The applicant has described being called into [their] office and warned that [some of her work] was not appropriate because [women] should stay at home. The organisation was also warned for accepting foreign aid to fund its activities, because the al-Sadr supporters considered it breached local and religious values.

28. Due to her concerns about her safety, the applicant on occasion asked male friends to accompany her to her workplace. This resulted in further complaints by members of the al-Sadr group to [Organisation 1] to the effect that men should not attend the premises because it was not appropriate that the 2 sexes should mix inside the building. The organisation was also warned by al-Sadr that the applicant should not promote women’s rights in the course of her employment or her safety could not be guaranteed. I consider the kinds of threats and harassment described by the applicant to be entirely consistent with the prevailing social, religious and political situation in Iraq.

29. Following those warnings the applicant was asked by her employer to limit her activities in support for their clients and to stop advocating for women’s rights. The applicant was both frightened by the experience and upset by the limitations imposed on her role and she ceased working for several months. During that time she came to the view that performing her role on a limited basis was better than not performing it at all and she returned to work after about 4 months.

30. The applicant has described being asked by her employer to organise [an event]. The [event] was essentially gate crashed by a [prominent woman] associated with the al-Sadr party, who [recited] verses of the Quran, telling the women present that they should stay at home and not work or leave their houses. The applicant asked that [woman] to allow the [event to proceed], resulting in an [argument].

31. The applicant has consistently stated that after this event, an envelope was found in the front garden of their home containing a threatening letter and a bullet. A copy of that letter and its English language translation is contained on the departmental file. The letter is addressed to the applicant by name and states among other things that she must comply with the instructions of His Eminence Sayyid Muqtada al-Sadr regarding the organisation of women’s events and activities for Muslim women. The letter stated that she was asked to refrain from promoting western cultures alien to Islamic society and culture, which she had been doing under the pretexts of freedom and education of women. The letter stated that she has not taken those warnings very seriously and therefore her punishment would be severe.

32. The applicant was extremely frightened and stopped work immediately. Her husband returned to Iraq at the end of July 2013 and stayed for 2 months, making arrangements for the applicant and their children to join him in Australia. The applicant did not return to [Organisation 1] until November 2013 when she made a brief visit to return some property of the organisation and finalise her contract. As she approached the building, she saw [a security guard associated with al-Sadr] watching her.

33. Two days later a bomb exploded in her father’s [Workplace 1]. Prior to that her father had been a [Occupation 1] at that location for many years without incident. No-one was injured in the explosion but the building was significantly damaged. The matter was reported to the authorities but no suspects were identified and the [Workplace 1] has never re-opened. I have viewed the photograph of the [Workplace 1] submitted by the applicant as well as the translation into English of the name of the sign on top of the [Workplace 1], [name deleted]. A document [dated] 16 September 2009 confirms that the [Workplace 1] in Baghdad, [is] owned by  [name], the applicant’s father.

34. The applicant has acknowledged that she cannot be certain that the bombing of her father’s [Workplace 1] related to her own activities with [Organisation 1], although that is her strong belief. I do not discount that possibility as remote, rather I consider it to be more likely than not.

35. The applicant left Iraq for Australia in January 2014 and has not returned since. Since her arrival in Australia she has given birth to her second child and undertaken further advocacy activities within the Muslim and broader community here. She is a member of and volunteer with [two named organisations]. She has undertaken [various courses related to support services for women].

36. She operates [a social media] page advocating for women’s [rights]. I have viewed translations of threatening comments that have been posted on that [social media] page by individuals who object to her opinions. The gist of those comments are to accuse her of talking freely against al-Sayyid (Muqtada) because she is outside of Iraq, to threaten that al-Sayyid has a long memory and that there is no place for her in Iraq. The commentators accuse her of talking rubbish and spreading lies and suggest that she should return to Iraq and speak so that she can see how the men of al-Sayyid deal with her.

37. As set out above, I accept the applicant to be a credible witness and I accept the documents she has provided to the Tribunal and the Department to be genuine. I accept her account of her experiences in Iraq and Australia, which I consider to be consistent with available country information about the situation for women and women’s advocates in Iraq. I accept the applicant’s political opinions about women’s rights are genuinely held and that if she returns to Iraq, she will continue to advocate for the rights of women.

38. In its most recent report, DFAT assesses that the majority of Iraqi women, regardless of ethnicity or socio-economic status, face a high risk of official and societal discrimination and gender-based violence. DFAT notes that in particular Iraqi women working to advocate for women’s rights face a high risk of violence, including targeted killings. NGOs also face harassment and violence from armed groups, while civil society activists advocating for the rights of women are particularly at risk of attack with many fleeing the Arab parts of Iraq for Turkey or the Kurdistan Region of Iraq.[5]

    [5] Australian Department of Foreign Affairs and Trade DFAT Country Information Report: Iraq 17 August 2020, 3.86, 3.132

39. In view of DFAT’s advice, I accept there to be a real chance the applicant will be targeted for serious harm if she returns to Iraq, now or in the foreseeable future for reasons of her gender, her political opinion and her commitment to women’s advocacy.

40. Considering all of the matters above, I am satisfied the applicant has a well-founded fear of persecution for the combined reasons of her membership of the particular social group ‘women in Iraq’ and her actual and imputed political opinion should she return to Iraq, now or in the reasonably foreseeable future. It follows that she meets the definition of a refugee set out in s 5H of the Act.

    The applicant husband (the second named applicant)

41. The applicant husband returned to Iraq in December 2019 in circumstances which are relevant to set out. As noted above, in December 2012 the applicant husband was granted a student visa to study a [degree] at [University 1]. He funded those studies through a scholarship from the Iraqi government. Independent sources confirm that Iraq’s Higher Committee for Education Development (HCED) commenced the Iraq Educational Initiative in 2009–2010 as part of Iraq’s rebuilding strategy. By March 2012, a total of 22,000 scholarships had been awarded to masters and doctorate students, primarily pursuing studies in the hard sciences, engineering and agriculture.[6]

    [6] ICEF $200 million in international scholarships makes Iraq a viable emerging market, 5 March 2013 at - ICEF Monitor - Market intelligence for international student recruitment

42. The HCED stated that the purpose of the program was to fill the gap between the standard of education in Iraq and the rest of the world, by sending thousands of students to study in the world’s best accredited universities. Scholarships are distributed based on the population of each province and once an applicant has entered into the scholarship program, it is not possible to withdraw. The HCED website states that this is to ensure the best use of government resources and that a student that seeks to withdraw will be subject to ‘all administrative and legal consequences mentioned in the rules in effect’ and ‘the articles of the contract signed between the student and HCED’.[7]

    [7] FAQ (hcediraq.org)

43. As is usual in such arrangements, the applicant husband entered into a contract with the Iraqi government to ensure his return to Iraq at the completion of his studies so that the Iraqi people benefit from their government’s spending. His father and sister-in-law gave personal guarantees that he would return. In 2020 the applicant’s husband sought to exchange their personal guarantees for a property his father owned in Najaf. However the ownership of that property was disputed and the applicant husband’s family were unable to prove their claim to ownership in court. In support of this, the applicant has submitted an order [from the court]. The court document confirms the plaintiff’s claims were rejected and he was ordered to pay costs. 

1. I accept the applicant husband returned to Iraq to ensure that his father and sister-in-law were not penalised for his breach of his scholarship conditions and that the family hope to be reunited in the future. As a consequence of his withdrawal from the review application, the Tribunal has no jurisdiction in respect of the applicant husband.

   The applicant children (the third and fourth named applicants)

2. The applicant’s children are currently aged [age] and [age]. For the reasons set out above I have accepted that the threats made against the applicant in Iraq were directed towards both the applicant and her family. I have also accepted that the [Workplace 1] owned by the applicant’s father was damaged in a bomb explosion that was likely in retaliation for the applicant’s activities at [Organisation 1].

3. In such circumstances I accept that there is a real chance the applicant children would be subjected to serious harm if they returned to Iraq due to their relationship with and proximity to their mother. It follows that I am satisfied they face a well-founded fear of persecution for reasons of their membership of the particular social group comprising the applicant’s family, should they return to Iraq now or in the reasonably foreseeable future.

   CONCLUSIONS

4. For the reasons given above the Tribunal is satisfied that each of the first, third and fourth named applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).

5. For the reasons given above, the Tribunal has no jurisdiction in respect of the second named applicant.

   DECISION

6. The Tribunal remits the matter for reconsideration with the following directions:

   (i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

   (ii)that the Tribunal has no jurisdiction in relation to the second named applicant; and

   (ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   Alison Murphy
   Member

   
   

   ATTACHMENT A – THE RELEVANT LAW

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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.

    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.

    …