1804408 (Refugee)

[2024] AATA 1274

1804408 (Refugee) [2024] AATA 1274 (16 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804408

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Garry Fitzgerald

DATE:16 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 16 February 2024 at 4:01pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – particular social group – threats from money lenders – fear of killing – debt paid off – employment – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

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 dependants.

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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of Indonesia.  He applied for the visa on 27 January 2017. On 19 February 2018, the delegate refused to grant the visa, deciding that he did not satisfy s 36(2) of the Act.[1]

   [1]The applicant gave the Tribunal, for the purpose of the review, a copy of the Department’s refusal decision record.      

3. The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

   CRITERIA FOR A PROTECTION VISA

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

   Refugee

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a).

7. Under s 5J(1), a person has a well-founded fear of persecution:

   a.if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,

   b.if there is a real chance they would be persecuted for one or more of those reasons, and

   c.the real chance of persecution relates to all areas of the relevant country.

8. 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.

   Complementary protection

9. 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

10. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent report from DFAT on Indonesia is dated 24 July 2023 (DFAT country information).

    OTHER MATERIAL BEFORE THE TRIBUNAL FOR THE REVIEW

11. The Tribunal has also had regard to the documents contained in the applicant’s Department file [number], as provided to the Tribunal by the Department) and contained in the applicant’s Tribunal file. The applicant was not invited for an interview by the Department.  The Tribunal has also considered the oral evidence and arguments presented by the applicant at the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issues

12. The issues in this review are whether:

    a.there is a real chance that, if the applicant returns to Indonesia, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a), under s 36(2)(a) of the Act; and, if not,

    b.there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm, under s 36(2)(aa) of the Act.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality, country of reference and receiving country

14. The applicant’s nationality is not in issue. The Department was satisfied as to the identity documents that he produced. The Tribunal accepts that the applicant is an Indonesian citizen. Accordingly, Indonesia is the country of reference and receiving country for his application for a protection visa.

    The applicant’s personal background

15. Based on his application for a protection visa to the Department, departmental records and his oral evidence at the hearing, the Tribunal accepts that the applicant:

    a.is in his [age range];

    b.was born and lived in Bali in Indonesia, before coming to Australia in April 2012;

    c.is of Balinese ethnicity;

    d.is a Hindu;

    e.has family still living in Bali — his wife, and [specified children] who are both in their [age range];

    f.has a house in [Village 1] in Bali, where his wife and [one child] live, with [another child] living nearby with [a relative];

    g.worked in [industry 1] for many years, operated and owned a [small business], and briefly ran a [farm] in Bali before coming to Australia in 2012;

    h.has lived and worked mainly in Victoria and Queensland since coming to Australia;

    i.has worked mainly in farming while in Australia;

    j.has worked for the last two years at a factory [in Melbourne], doing [specified] processing;

    k.has supported his family in Indonesia while in Australia, by remitting money to them.

    The applicant’s claims for protection

16. The applicant lodged an application for a protection visa with the Department dated 27 January 2017 (the Departmental application) almost five years after arriving in Australia. 

17. In the Departmental application, he claimed protection because he ‘felt threatened by a debt collector and [was] uncomfortable to stay in my country since I was in a danger situation’.[2]   He also stated that in 2011 the debt collector ‘threatened me by pointing a knife on my neck and would kill if the debt is not paid immediately’.[3]  

    [2]Departmental application, response to question 89, on page 36.  Reproduced as written.     

    [3]Departmental application, response to question 91, on page 37.  Reproduced as written.     

18. In support of his Departmental application, he had lodged a one-page handwritten letter he wrote.  In that letter, he explained[4] that he had borrowed [amount] million Indonesian Rupiah[5] (IDR) from an ‘illegal bank’ in (apparently) about August 2008 (the Debt).[6]  In his oral evidence he identified the individual behind the ‘illegal bank’ who was the creditor for the Debt (the Creditor).  He entered into the Debt to pay off his loan from a ‘legal bank’ ([Bank 1]),[7] which he had taken out to fund his purchase of a [farm] in Bali in May 2008. 

    [4]As supplemented by his oral evidence at the hearing.    

    [5]This amount equals about AUD[amount], on 6 February 2024.  Exchange rate: 1 Australian Dollar (AUD) =  9,600.1347 Indonesian Rupiah (IDR) (Send IMT), Commonwealth Bank of Australia, accessed on 6 February 2024 at

    [6]The Debt had a 35% monthly interest rate.      

    [7]In his oral evidence he identified this bank as [Bank 1]. 

19. His [farm] business had collapsed when his [animals] caught [a disease], shortly after he started the business.  He went bankrupt and was unable to meet repayments on the Debt.  He ended up selling his house in 2010 but was only able to pay the interest on the Debt, not its principal sum.  He was threatened by the ‘debt collectors’, as described above, and fled to Australia in April 2012 to escape them.

20. At the hearing, the applicant acknowledged that ‘things have changed’ since then. 

21. He said at the hearing that he has repaid the Debt in full.  There is now nothing owing or outstanding on the Debt.  The applicant explained this by reference to bank statements, receipts and other financial documents, which he had lodged with the Tribunal on 29 January 2024, before the hearing (the Financial Documents).  The Financial Documents comprise or show (as translated and explained where necessary at the hearing):

    a.two receipts from the Creditor in January 2023 and December 2023, made out to the applicant’s wife, which show repayments totalling IDR[the full amount] for the Debt principal;

    b.as of 26 January 2024, a statement in his wife’s name of the balance owing to [Bank 1] of about IDR[amount] million;[8] this balance relates, he said, to a further loan of initially IDR[amount] million, which he used to pay the Debt (this loan was secured by his new house in [Village 1] in Bali which he owns outright);

    c.details as to his account with [Bank 2].

    [8]The precise figure is IDR[amount].  This amount equals about AUD[amount], on 6 February 2024.  Exchange rate 1 AUD = 9,600.1347 IDR (Send IMT), Commonwealth Bank of Australia, accessed on 6 February 2024 at

22. At the hearing, the applicant said that he had also borrowed AUD[amount] from [Bank 2] to repay the Debt.  He still owes [Bank 2] about AUD[amount].  The Financial Documents did not evidence this loan or the balance owing on that loan; they just indicated that he had an account with [Bank 2].

23. As at the date of the hearing, the applicant said that his current debts to [Bank 1] and [Bank 2] for their loans total about AUD[amount]. 

24. The applicant accepted at the end of the hearing that he now had no fear of harm or problems arising from the Debt if he returned to Indonesia, because the Debt had been paid off. 

25. The applicant said his only concerns about returning to Indonesia now were economic and financial: namely, if he returned to Indonesia, how well he would cope with the repayment of the [Bank 1] and [Bank 2] loans and how well he would be able to live and support his family including [one child] who is studying), compared to if he remained in Australia, where he could earn more money.  He also mentioned a couple of times that he needed four more years in Australia to clear the current loans.  He said that he had no other concerns, if he were now to return to Indonesia.

26. The Tribunal’s own review of the material before it does not suggest or disclose any other claim or ground clearly or reasonably open to the applicant for seeking a protection visa, although it briefly refers to his ethnicity and religion below (about which no protection claims were made).

    FINDINGS AS TO THE CLAIMS

27. The Tribunal found the applicant to be a credible and candid witness at the hearing.  For the purposes of this review, it accepts his evidence as to his claims as being truthful, either as to the facts expressed or the sincerity of his beliefs about them.  It also accepts the evidence of his personal background.

    REASONS FOR THE TRIBUNAL’S DECISION

    Assessment of refugee criterion

28. To be eligible for the grant of a protection visa as a refugee, it must be established that the applicant has a well-founded fear of persecution in Indonesia. This requires, among other things, establishing that there is a real chance he would be persecuted, if he returned there, for reasons of his race, religion, nationality, membership of a particular social group or political opinion (the refugee reasons).  A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility, even if it is below 50 per cent: Chan v MIEA (1989) 169 CLR 379. The persecution must involve serious harm to the person: s 5J(4)(b).

29. In this case, the applicant left Indonesia to flee debt collectors.  As the Debt is now paid, he no longer fears returning to Indonesia because of that, but he wishes to remain in Australia to better be able to repay his more recent loans with [Bank 1] and [Bank 2] and to support his Indonesian family.  From the applicant’s point of view, these are understandable reasons to wish to remain in Australia. 

30. However, the Tribunal must assess whether he meets the refugee criterion.  To do so, it must be satisfied that he has a well-founded fear of persecution in Indonesia.  This requires, among other things, that there is a real chance that if he returned to Indonesia, he would be persecuted for one of the refugee reasons (required by s 5J(1)(a)), with such persecution involving serious harm (which is illustrated in s 5J(5)). 

31. In this case, the applicant does not fear being persecuted if he returns to Indonesia for any of the refugee reasons.[9]  He does not fear returning there because of any persecution by anyone; rather he seeks a better life financially, comparatively, in Australia. 

    [9]The applicant did not claim that he feared any persecution in Indonesia because of his ethnicity (Balinese) or his religion (Hindu).  The Tribunal notes, in any event, that the country information for Indonesia does not support the view that there is persecution against such groups.  As to his ethnicity, ‘Indonesia is one of the world’s most ethnically diverse countries’: see DFAT country information, paragraphs 3.1-3.5.  As to his religion, although Indonesia is a majority Muslim country, the dominant religion in the applicant’s home region of Bali is Hindu: over 80% of the population identify as such: see DFAT country information, paragraphs 3.18-3.20, 3.51-3.54.  DFAT ‘assesses that Hindus living in Bali do not face societal discrimination or violence based on their religion. Hindus living in other parts of the country where they are a small minority may face low-level societal discrimination. DFAT is not aware of reports of official discrimination against Hindus.’: DFAT country information: paragraph 3.54.     

32. The Tribunal accepts that the applicant believes that if he does return to Indonesia, he will be unable, in the foreseeable future, to cope as well with repayment of the [Bank 1] and [Bank 2] loans and to provide the same level of financial support to his family there as he could if he remained in Australia.   

33. However, in the Tribunal’s assessment, the applicant has sound financial and economic prospects in Indonesia.  He owns his own home in [Village 1] (albeit secured against the new [Bank 1] loan, but with an unknown amount of equity).  He has a family network there.  He has a substantial employment and work history, in Indonesia and in Australia.   The economy in Indonesia is doing well and employment prospects are good there, according to DFAT country information. [10]  The applicant did not agree with the positive appraisal of the Indonesian economy contained in the DFAT country information, but he did not give substantial reasons why he did not and he did say that Bali was busy again, with ‘traffic jams’ of tourists.  In the Tribunal’s view, he can secure work and an income in Indonesia for the foreseeable future if he returns, to meet his debts and help support his family.   

    [10]The economic overview of Indonesia, according to DFAT country information, is that it is the largest economy in Southeast Asia, with strong GDP growth between 2010 and 2019, and following the COVID-19 pandemic in 2020, continuing GDP growth in 2021-2023.  The unemployment rate was 5.8% in August 2022.  Informal work can be obtained without much difficulty in the tourism industry in Bali, as well as in big cities such as Jakarta and Surabaya: DFAT country information, paragraphs 2.7-2.11.  The World Bank reported Indonesian annual GDP growth of 5.3% and unemployment as 3.6% in 2022: accessed 6 February 2024.

34. Section 5J(5) of the Act sets out non-limiting instances of serious harm.  The most apposite instances of serious harm referred to in s 5J(5) in this case are those set out in s 5J(5)(d)–(f). Those instances require ‘significant economic hardship’, ‘denial of access to basic services’ or ‘denial of capacity to earn a livelihood of any kind’ which threaten the applicant’s capacity to subsist in Indonesia.  Based on the material before the Tribunal, there is no reason to conclude the applicant would be unable to so subsist in Indonesia in the foreseeable future.  The country information for Indonesia (referred to above) suggests that he could so subsist in that country, based on Indonesia’s adequate and improving overall economic and employment situation and his family network there, as well as his own personal attributes, such as his work history and experience in Australia and in Indonesia.

35. The Tribunal does not accept that there is a real chance he will suffer serious harm for a refugee reason in the foreseeable future if he returns to Indonesia.

36. The Tribunal therefore concludes that:

    a.the applicant does not fear persecution for any of the five refugee reasons required by s 5J(1)(a) if he returns to Indonesia; and

    b.there is not a real chance that, if the applicant returned to Indonesia, he would suffer serious harm and be so persecuted as required by ss 5J(1)(a), 5J(1)(b) and 5J(4)(b).

    Conclusion on refugee criterion

37. For the reasons given above, the Tribunal is not satisfied that the applicant:

    a.is a refugee within the meaning of s 5H;

    b.has a well-founded fear of persecution within the meaning of s 5J(1); and

    c.is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Complementary protection criterion

38. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal must consider the alternative criterion in s 36(2)(aa): namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Indonesia, there is a real risk he would suffer significant harm, as exhaustively defined in s 36(2A) of the Act.

39. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition[11] (which applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J).

    [11]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick & Jagot JJ, 20 March 2013) per Lander & Gordon JJ at [246], Besanko & Jagot JJ at [297], Flick J at [342].

1. Significant harm is defined in s 36(2A) of the Act as arbitrary deprivation of life, infliction of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment of or to the applicant.  In the Tribunal’s view, any financial harm the applicant claims, if he returns to Indonesia, would not constitute such significant harm.  It is obviously different to arbitrary deprivation of life or the death penalty.  It would not be intentionally inflicted on him by anyone, as required for torture, or the various treatment and punishments described in the section.

2. Based on the Tribunal’s consideration above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm.

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

   Assessment of family member criterion

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

   Protection in another country

5. There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country, apart from his country of nationality, Indonesia.  Accordingly, s 36(3) of the Act does not apply in this case.

   Conclusion

6. For the above reasons, the Tribunal is not satisfied that Australia has protection obligations in respect of the applicant pursuant to s 36(2) of the Act. Accordingly, the Tribunal has concluded that the decision under review should be affirmed.

   DECISION

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

   Garry Fitzgerald SC
   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.

   …