1811335 (Refugee)

[2018] AATA 3269

1811335 (Refugee) [2018] AATA 3269 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811335

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Nathan Goetz

DATE:9 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2018 at 1:45pm

CATCHWORDS

Refugee – Protection Visa – Fiji – Whether the applicant will suffer serious harm if returned to Fiji – Claims do not amount to serious harm – Claims not supported by country information – Where applicant does not want to be separated from family in Australia – Where applicant has a history of self-harm – Self-harm does not amount to serious or significant harm for the purposes of the visa – Decision affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499, 501(3A)
Migration Regulations 1994 (Cth), Schedule 2

CASES

Falzon v Minister for Immigration and Border Protection [2018] HCA 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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. On 22 March 2018, the [applicant] lodged an application for a protection visa. This was refused by the delegate on 17 April 2018.

3. On 20 April 2018, [the applicant] lodged with the Tribunal an application for review of this decision. His application for review included a copy of the delegate decision.

4. [The applicant] appeared before the Tribunal on 1 June 2018 to give evidence in support of his cases. As he is currently a detainee at [a particular immigration detention centre], he appeared by audio-visual link. He was represented by his registered migration [agent]. [The applicant]’s [mother] also gave evidence in support of her son’s application.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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 themself 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).

8. 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.

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

    Material before the Tribunal which was considered in this application

11. In considering this application, the Tribunal has considered the contents of the [departmental file], the contents of the Tribunal file 1811335, and the DFAT Country Information report on Fiji dated 27 September 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether [the applicant] is a refugee. If he is not a refugee the Tribunal must consider whether he meets the criteria for complimentary protection. If [the applicant] does not meet the criteria for complimentary protection, the Tribunal then needs to consider whether he meets the criteria for membership of the same family unit as a person who holds a protection visa.

    Background

13. [The applicant] was born on [a particular date] in [a particular location] in the Republic of Fiji. He is a citizen of Fiji and identifies his ethnicity as a ‘Pacific Islander’. He is a Christian who came to Australia [in] October 2008 as the holder of a [particular temporary visa].

14. [In] February 2009, [the applicant] was granted a [permanent] visa as a dependent of his mother. [In] October 2016, this visa was cancelled by the department under s.501 of the Act and he was liable for removal from Australia.

15. [The applicant] lodged a review of this cancellation with the Administrative Appeals Tribunal, but withdrew the application on 14 March 2017. [In] March 2017. He lodged a review with the Federal Court but withdrew this application [in] February 2018.

16. On 22 March 2018, he lodged his protection visa application but on the following day his application for an associated bridging visa was found to be invalid.

17. He has been in immigration detention since [April] 2017 following his release from criminal custody where he remains to this day.

18. [The applicant]’s [father] was born in Fiji but currently resides in Australia and is now an Australian citizen. His [mother] was born in Fiji and although she resides in Australia, she is a permanent resident and retains her Fijian citizenship. The applicant’s [partner] was born in Australia and is an Australian citizen. They have been in a relationship since [August] 2012.  He has [a number of] cousins, [a number of] aunts and an uncle who live in Australia.

    Claims

    Written protection visa application

19. The material before the delegate consisted on the applicant’s written protection visa application which the applicant signed on 5 March 2008. The applicant completed that application by himself.

20. When asked why he was seeking protection in Australia, [the applicant] stated that he was seeking protection in Australia so he did not have to return to Fiji. He wrote that he left Fiji because he no longer had any family in Fiji as his grandparents passed away and it was for that reason that his mother came to Fiji to bring him to Australia for a better life. He said that Australia is now his place and he is proud to call Australia home. He said that his grandparents looked after him when he was a kid. He wrote that if he returned to Fiji, he will be homeless and be separated from his family and friends as he has no ties to Fiji whatsoever. He wrote that he is [a relatively young age] and has his whole life ahead of him in Australia with his mum and his partner.

21. He stated that he experienced past harm in Fiji and that he feels like he will self-harm every day in Fiji as he will miss his mum and partner a lot, especially at his age and will have no one there to turn to for help. When asked whether he sought help within Fiji after suffering harm, he wrote that he has no one to turn to for help. He had no support from anyone over in Fiji because he does not have any family or friends. He wrote that when he came to Australia he got so much help from his mum and partner.

22. When asked whether he would be harmed or mistreated if he returned to Fiji, he wrote that he would suffer self-harm and be bullied. He claimed that authorities would not be able to protect him if he returned to Fiji because he has no family and no backup support there as his grandparent had passed away and his grandparents was taking care of him previously. He said that he would not be able to relocate within Fiji where he would not be harmed because he had no family and nowhere to go and no place to stay.

    New statutory declaration

23. On 28 May 2018, the Tribunal received a statutory declaration from [the applicant] which stated the he wanted to add further information to his protection claims.

24. In the application he wrote that part of the reason for him leaving Fiji was from physical and mental abuse that was occurring. He wrote that he had grave concerns for himself if he was to return to Fiji because he was fearful of experiencing the same mental and physical abuse if he returned to Fiji. He wrote that he still experiences psychological trauma from the abuse that he experienced during his time in Fiji.

25. He claimed that he now suffers from depression and anxiety because of the years of mental and physical abuse that he experienced in Fiji. He suffers sleep deprivation, irregular mood swings and that he has grown to have an aggressive nature after the abuse and trauma he went through in Fiji, and after his time in detention.

26. He wrote that he has considered suicide and often resulted in drinking alcohol and drug use to prevent him from acting which has a significant impact on his overall health.

27. He wrote that his grandparents have raised him from birth and lived with him in Fiji. He wrote that before moving to Australia, they acted as his parental figures. Unfortunately, they have both passed away now and it saddens him tor return to Fiji because it will remind him of his grandparents passing away. He stated that he has family under his care who reside in Australia and fears that if he were to return to Fiji he will be financially independent, be a member of a minority group in the country and be foreign to the processes that exist in Fiji. He is unaware of how to seek employment and will be unsupported if he returns to Fiji. Unlike Australia, Fiji does not provide citizens with commonwealth assistance or support their day to day living. Also, he has no immediate family he can return to and he will endure further trauma in an attempt to restart his life. He stated that he may not overcome to language barrier that exists if he were deported back to Fiji because English is the only language he speaks and it will be difficult to find a job and seek medical assistance.

    Statutory declaration from his mother

28. Also on 28 May 2018, the Tribunal was provided with an historic statutory declaration by the applicant’s [mother]. This statutory declaration was used at the time that the applicant was brought to Australia and included as a dependent on his mother’s visa. She wrote that when her son was born when she was still in high school and that her parents took him away from her and she ran away from home. She worked to support herself and gave some money to the applicant for his food and milk. She would occasionally ask her father to give the applicant to her but this was refused.

29. She wrote that in [2007] she and her husband went to Fiji for her father’s [birthday]. That is when her father realised what he did was wrong by taking the applicant away from her. She was told by her father that he was too old to look after the applicant so he gave his authority and blessing for her to take and look after the applicant in Australia.

    Evidence given to the Tribunal

30. As the applicant was born on [a particular date] and arrived in Australia [in] October 2008, he arrived in Australia when he was [a young] age. He is now [a particular] age. The applicant was raised in Fiji by his mother’s parents. His mother had the applicant at a young age and she left the family home. The applicant has never met his biological father. When he was [a young age], his mother and new step-father brought him to Australia to join them here. His grandfather was getting sick and as his mother had entered into a new relationship with an Australian man. His grandfather died two or three months before the applicant came to Australia, while his grandmother died in 2017. He has no family in Australia because his grandparents had adopted his mother and had no children of their own.

31. The applicant told the Tribunal that he was treated differently as a child because he did not have a mother. He told the Tribunal that the ‘whole village’ treated him like this and he was made to do chores such as feeding the pigs. If he did not do chores he told the Tribunal that he would receive a ‘hiding’. As he had lighter colour skin in comparison to everyone else having darker colour skin, he was ‘being used’. The applicant’s mother confirmed from her own experience growing up that she had to do washing and that she was treated differently because she was adopted and told the Tribunal that her son experienced the same treatment.

32. The applicant came to Australia where he has continued to live with his mother and step-father, save for his period in juvenile detention and time in immigration detention. The applicant has a partner, but they do not have children and she does not live with the family. They have been together since 2012. The applicant completed Year 10 in schooling and told the Tribunal that he has previously worked at [a particular business] for one month where he [undertook a particular occupation], and has also worked at [a different business] for four or five months. He has [various vocational qualifications]. He had been assisted in gaining qualifications and employment through the involvement of juvenile justice agencies, noting that the applicant told the Tribunal in broad terms that he had previously found himself in trouble with the authorities.

33. The applicant confirmed that he had returned to Fiji on three occasions since he arrived in Australia. The first occasion was between [October] 2009 and [November] 2009 when he was [a particular] age. The second occasion was between [August] 2010 and [September] 2010 when he was [a particular age]. The third and last occasion was between [December] 2011 and [January] 2012 when he was [a particular age]. He told the Tribunal that he returned to Fiji with his mother and step-father to visit his grandmother.

34. The applicant told the Tribunal that he had self-harmed a couple of times previously. He did this while he was in juvenile detention as well as when he was in immigration detention. The self-harm in detention occurred when he left [a particular immigration detention centre] and went to [another immigration detention centre]. He told the Tribunal that he tried to [commit suicide] because he had ‘had enough of life’ and told the Tribunal that he was not currently medicated.

35. The applicant told the Tribunal that he could not go back to Fiji because he had no family support there and would not be able to make a ‘start’ of his life. He told the Tribunal that he was very stressed about returning to Fiji and had lost weight as a result of this stress. He told the Tribunal that if he went to Fiji he was going to hurt himself because he had nothing to look forward to. He told the Tribunal that he could not speak the Fijian language and would not be able to communicate if he was returned to Fiji. If he went back, he said that the ‘whole village’ would want to harm him.

36. The applicant told the Tribunal that the reason for the delay in lodging his protection visa application (which had been lodged on 22 March 2018) was due to his lawyers awaiting the outcome of Falzon v Minister for Immigration and Border Protection [2018] HCA 2 (7 February 2018). That case involved a challenge by Mr Falzon to the validity of s.501(3A) of the Act on the basis that it purported to confer the judicial power of the Commonwealth on the Minister. That contention was rejected by the High Court. The Tribunal understood the applicant to be saying that in the event that the section was found to be invalid, there would be no need to lodge a protection visa application because his dependent visa would have not been lawfully cancelled, and he could remain in Australia.

    FINDINGS AND REASONS

37. It is important to note that the Tribunal has paid no regard to the criminal offending which resulted in [the applicant]’s dependant visa being cancelled as that is immaterial to determining whether he is a refugee or a person who meets the criteria for complimentary protection. If [the applicant] was found to be a refugee or a personal entitled to complimentary protection by the Tribunal and the matter was remitted to the department, it would be a matter for the department to consider whether the applicant should be refused the protection visa on the basis of his character.

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

39. The Tribunal was concerned by the delay in the lodging of the protection application. The applicant has been in Australia since 2011, yet he lodged his protection visa application in 2018. However, the Tribunal does accept the explanation for the delay was due to the applicant waiting to find out the decision of the Falzon case for the reasons explained in his oral evidence and accordingly has not taken the delay issue into account when determining this application.

40. The Tribunal accepts that the applicant is [applicant's name] and that he is a citizen of Fiji. There is nothing before the Tribunal to suggest that the applicant can be returned to any country other than Fiji. The country of reference is Fiji.

41. The Tribunal accepts that the applicant may have felt that he was treated differently when he was growing up because he did not have a mother and was raised by his grandparents. It may have been that he was expected to do more chores than anyone else in his village and that he felt that he was treated differently because of the colour of his skin. However, the applicant left Fiji to reside in Australia when he was [a young] age. He is now a man of [a particular] age. As conceded by him, he would need to live as an independent person if he returned to Fiji as his only family in Fiji (grandfather and grandmother) are now deceased. The Tribunal struggles to accept that the applicant, as a man of [a majority age], would now be required to do anything by villagers in his childhood home that he did not want to do. There is nothing before the Tribunal to suggest that the children of adopted parents are at risk of serious harm in Fiji, nor is there anything before the Tribunal to suggest that the applicant, who has lighter skin than other Fijians, would suffer serious harm on that basis.

1. Further, the fact that the applicant returned to Fiji on three occasions suggests to the Tribunal that the applicant does not have a fear of returning to Fiji and that he did not leave because of past harm in Fiji. It is not credible that the applicant would return to a place that was so traumatic for him. The Tribunal rejects the applicant submission that the travel back to Fiji should be seen in the context of the applicant as a young child travelling back to Fiji with his parents and that he was, in effect, unable not to go. The Tribunal has difficulty in accepting this explanation because it does not accept that the applicant’s mother, who spoke of her own hardship growing up in Fiji, would willingly take her own child back to Fiji three times if there was any risk of harm to her child, or if her child had suffered any of the psychological torture claimed in the application.

2. The Tribunal has difficulty accepting that the applicant, who is [a young adult], would not be able to survive in Fiji without family support and because he does not speak Fijian. Fijian schools are required to teach in English[1] and as noted to the applicant during the hearing, English is an official language of Fiji[2]. His inability to speak Fijian or Fijian Hindi (the other two official languages of Fiji) would not be an independent to his livelihood on return to Fiji. The applicant has had previous experience of employment and has qualifications that would be of great assistance to him in gaining employment in Fiji. The Tribunal does not accept that the applicant would be unable to subsist if he were to return to Fiji. He has demonstrated a capacity to work and is educated to a Year 10 standard. The applicant stated that there was no reason that his mother and step-father could not visit him in Fiji, apart from the fact that he did not want them to waste their money by ‘coming and going’ to Fiji, and also accepted that he would be able to communicate with his family in Australia despite technology in Fiji being ‘pretty slow’. He would have access to emotional support from his family back in Australia.

   [1] DFAT COUNTRY INFORMATION REPORT FIJI, 27 September 2017 at 2.28

   [2] CIA World Fact Book

3. The Tribunal accepts that the applicant has previously self-harmed in Australia. It accepts his evidence that he did this twice while in juvenile detention and in immigration detention. That is very regrettable for the applicant and his family. The Tribunal accepts that these instances of self-harm have occurred because the applicant does not want to return to Fiji but finds that these events have occurred because he does not want to be separated from his family, not because he has any fear of harm if he were to return to Fiji. The Tribunal accepts that there is an inherent risk that the applicant, as a person who previously self-harmed, may do so again if he is returned to Fiji. However, this harm has not been directed at the applicant by any external source. Rather, it is a voluntary act done by the applicant because he does not want to be separated from his family in Australia. The Tribunal does not accept that self-harm meets the definition of serious harm or significant harm on the basis that the self-harm is a voluntary act done by the applicant to himself.

4. When considering the evidence as a whole, the Tribunal is satisfied that the applicant has lodged a protection application because he does not want to be separated from his family. As a result of his visa being cancelled and his potential deportation to Fiji, he is understandably upset and has self-harmed because he does not want to be separated from his family. He does not have any genuine fear of serious harm or significant harm if he were to be returned to Fiji. The only harm that the applicant faces is that which he would do to himself because he does not want to leave Australia and this harm is not serious harm or significant harm under s.36(2)(a) or s.36(2)(aa) respectively.

   Refugee

5. 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).

6. The Tribunal does not accept that there is a real chance now or in the foreseeable future that the applicant will suffer serious harm in Fiji on the basis on  race, religion, nationality, political opinion or membership of a particular social group.

   Complimentary Protection

7. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

8. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there is a real risk that the applicant will suffer the death penalty, arbitrary deprivation of life, torture, or cruel, inhuman or degrading treatment or punishment.

   Membership of the same family unit as a person who holds a protection visa

9. 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 criterion in s.36(2).

   DECISION

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

    Nathan Goetz

    Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

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

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

    but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)     significant physical harassment of the person;

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

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

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

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

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

    5K  Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L  Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA  Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    ..

    36Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

    …