1813007 (Refugee)

[2020] AATA 6211

1813007 (Refugee) [2020] AATA 6211 (27 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1813007

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Paul Windsor

DATE:27 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 July 2020 at 4:30pm

CATCHWORDS

REFUGEE – protection visa – Taiwan – particular social group – victims of loan sharks – criminal gangs – fear of forced prostitution – business debt – physical assault – internal relocation – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 2 May 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 Taiwan, applied for the visas on 16 August 2017.

3. In her protection visa application, [the applicant] indicated that she was born on [date] in Taichung City Taiwan, is of Taiwanese ethnicity and has never married.  She indicated she did not practice any religion.  She indicated she first entered Australia [in] October 2015 on a working holiday visa, and most recently arrived in Australia [in] November 2016, also entering on a working holiday visa.[1]

   [1] See the Departmental file.

4. [The second applicant] indicated that she was born on [date] in Kaohsiung Taiwan, is of Taiwanese ethnicity and has never married.  She indicated she did not practice any religion.

5. In her application, [the applicant] indicated that she sought protection in Australia because feared harm from gangsters in Taiwan.  She commented that she was the guarantor for a loan taken by another person who subsequently disappeared.  She indicated that a gangster collector came and forced her to pay a big amount under threat that they would sell her away.[2]  [The second applicant] did not make claims in her own right.

   [2] See the Departmental file.

6. The delegate found that [the second applicant] is the de facto partner of [the applicant], commenting that she had provided proof to the Department that they have been partners since 16 November 2016. The delegate refused to grant the visas finding that the refugee criterion was not satisfied because the claimed fear of harm was not for one or more of the five reasons mentioned in s.5J(1)(a) of the Act.  In relation to the complementary protection criterion, the delegate found that, on the information before them, [the applicant] could obtain from the Taiwanese police and judiciary, protection such that there would not be a real risk she would suffer significant harm, if returned to Taiwan.

7. The applicants applied to the Tribunal for review of this decision on 16 February 2019.  They provided the Tribunal with a copy of the delegate’s decision record.[3]

   [3] See the Tribunal file.

8. The applicants participated in a telephone hearing before the Tribunal on 24 July 2020.  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   Criteria for a protection visa

9. 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.

10. 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.

11. 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).

12. 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.

13. 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

14. 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.

    CONSIDERATION OF Claims and evidence

15. [The applicant]’s claims for protection were set out in her protection visa application. Her claims were as follows:[4]

    [4] See the Departmental file.

    I am seeking protection in Australia so that I do not have to return to:

    Taiwan

    Why did you leave that country?

    Because I am the guarantor of the lender named [Mr A].  now he disappear.  The gangster collector come and force me to pay the big amount.  otherwise they threaten to sell me away.  I tried to pay them but the amount still remain the actual after few months.

    What do you think will happen to you if you return to that country?

    They will hurt me and sell me away like others, they said.

    Did you experience harm in that country?  Yes

    They came to my house and destroy all my stuff and hit me.

    Did you seek help within that country after the harm?  Yes

    I went to the police make report but it doesn’t help me much.  the policeman do not have right to protect me everytime.

    Did you move, or try to move, to another part of that country to seek safety?  No

    Do you think you will be harmed or mistreated if you return to that country?  Yes

    They gangster hit me and even threatening to hurt me if I do not follow their instruction.

    Do you think the authorities of that country can and will protect you if you go back?  No

    I try to explain to the policeman my life in danger but they still do not protected me.

    Do you think you would be able to relocate within that country to an area where you would not be harmed?  No

    Findings and reasons

    Identity

16. On the basis of the copies of their Taiwanese passports submitted to the Department,[5] the Tribunal accepts that the applicants are nationals of Taiwan and that their identities are as claimed.  The Tribunal accepts that Taiwan is their ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Issues

    [5] See the Departmental file.

17. The issues in this review are whether either of the applicants has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Taiwan, there is a real risk either of the applicants will suffer significant harm.

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

    Credibility 

19. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims.  Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

20. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

21. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

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

22. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

23. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

24. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

    Assessment of claims

    Background

25. At the start of the hearing both applicants indicated that everything in their applications was true and correct as far as they know and believe.  They indicated there were no mistakes they wished to correct.  Both indicated they did not have any help or assistance in preparing the applications.

26. [The applicant] indicated she was adopted and was brought up by the grandmother of her adoptive father.  She indicated that her adoptive parents have two other children.  She indicated that she met [the second applicant] in Taiwan around 2012, said that they have been in a relationship for around seven years, and confirmed that they came to Australia together.  She indicated that they want to marry but have not married at this stage pending resolution of their visa status in Australia.  The Tribunal put to the applicants that it understands that same sex marriage was legalised in Taiwan in 2019[6].  [The second applicant] indicated that she was aware of that.  Noting the delegate’s findings on this matter, the Tribunal accepts that [the applicant] and [the second applicant] are in a genuine de facto relationship.

    [6] ‘Thousands attend Taiwan’s first pride since legalisation of gay marriage’, The Guardian, 27 October 2019,

27. [The applicant] indicated that in Taiwan she had opened a [shop], selling [goods], and after that had worked as a customer support person for [business].  She indicated that in Australia she had worked on farms and in [products] factories.  She said she was currently living in [a named town in] Queensland where she works [processing products].

28. [The applicant] confirmed that she first came to Australia in October 2015 and said that she and [the second applicant] had returned to Taiwan on two occasions, firstly to apply for a second working holiday visa and again in October 2016 to visit her grandmother who was ill.

    Claim to owe money to a loan shark

29. The Tribunal asked [the applicant] why she first decided to come to Australia on a working holiday visa.  She replied that in Taiwan there was no way she could earn more money to pay back the debt she owed and the loan shark started to look for her and her family so she could not work like a normal person.

30. [The applicant] said that around 2008 a friend, [Mr A], suggested they open a [goods] shop together.  He told her they would need NT[amount] but she only had NT[amount] in savings and he did not have any capital so he said he would borrow [the remainder] (approximately AUD71,500 at the current exchange rate).  She indicated that she agreed to enter the venture but after four months the business faltered and they had to pay back the loan.  He indicated that, at this time, her friend told her that the borrowed money had actually come from a loan shark rather than a bank.  [The applicant] indicated that they tried to borrow money to pay back what they owed the loan shark but the interest rate was too high so they were not able to repay it.  She said that when people sent by the loan shark came to the shop and demanded that they repay the money, her friend got scared and fled.  She said that her friend had given a copy of her identity card (which she claimed she had copied and attached to the bank loan application form) to the loan shark, so she was the guarantor for the loan.

31. [The applicant] could not state what the interest rate on the claimed loan was, but said they had to repay [repayment amount] per month, which included both principal and interest.  She said they were expected to repay the money in two years and five months.  When queried that 29 monthly payments of NT[the repayment amount] only amounts to NT[a smaller amount], so would not cover principal and interest repayments to cover a [loan of that amount], [the applicant] said the loan sharks deduct the first month’s payment from the loan amount extended.  The Tribunal commented that this does not explain how the claimed loan could be repaid in two years and five months with monthly repayments of [that repayment amount].

32. [The applicant] claimed they made five repayments before her friend fled.  She indicated that the shop then closed in November 2008.  [The applicant] indicated that she made [amount] from selling the equipment that her friend had brought to the shop but said she did not pay any of this to the loan shark, instead she told them to find her friend.  She said in June 2009 the loan shark approached her and told her to sign a note stating that she had to pay [a remainder amount].  She said she signed it and then left Taichung City and relocated to Hsinchu City (about 100 km north of Taichung City).  She indicated that [the second applicant] was located there and she began working as a Customer Service officer in [a business].

33. [The applicant] indicated that she did not continue to make repayments on the loan, but when the loan shark could not find her they sent people to her adoptive parents’ house who splashed the house with paint and smashed things.  She indicated her adoptive father then reached an agreement with the loan shark where he paid [a repayment amount] per month to repay the loan but did not have to pay any interest. 

34. The Tribunal asked [the applicant] if there is any debt remaining.  Initially she replied that there is no debt, but then sought clarification, asking ‘what side’ of the debt the Tribunal was referring to.  She then indicated that her father still had five payments of [the repayment amount] to make.

35. The Tribunal asked [the applicant], if her father only has five more payments of [the repayment amount] to make - a total of NT[amount] (which equates to approximately AUD 4,770 at the current exchange rate) - what her concerns are about returning to Taiwan now.  She indicated that she had concerns when she lodged her protection visa application in August 2017 because the money owing had not been paid back at that time.  When asked if she still had concerns about returning to Taiwan now, given it is nearly three years since she lodged her application for protection, [the applicant] said she thought she would be okay if she went back to Taiwan now and she was just looking to repay the outstanding [remainder] as soon as possible.

36. The Tribunal has significant concerns with a number of aspects of [the applicant]’s account, including that, as it put to her at the hearing, she could have been so foolish as to go guarantor for her friend on [an amount] loan (and provide a copy of her identity card), without otherwise being involved in a process that she thinks is about securing a bank loan, but is actually with a loan shark, and where she has no idea what the interest rate is.  The Tribunal also found her claims regarding the quantum of the monthly repayments and duration of the claimed loan illogical, as discussed with her and as borne out by her claim that when the business folded after they had made five monthly payments, rather than the outstanding loan amount having reduced, she was told they still owed NT[amount] (NT[amount] more than the original loan amount). 

37. At the hearing, [the applicant] also indicated that, contrary to her written statement of claims, she was never harmed by the loan shark or their agents, and she was able to avoid the loan shark by relocating to another part of Taiwan.  When these discrepancies were put to her, [the applicant] responded that, contrary to what she stated in her application and confirmed at the start of the hearing, she wrote the application with the help of a friend.  She commented that when she lodged the application she felt she needed help from ‘this visa’ but now the debt is about to be cleared she understands that a protection visa is not applicable to her.

1. When asked if there were any other matters she wished to raise, [the applicant] said she would like to thank Australia for making it possible for her to be able repay the money.

2. When asked if there were matters she wished to raise, [the second applicant] said she came to Australia with [the applicant] and their purpose was to pay back the money [the applicant] owed and to save some money.  She commented that her situation is different to [the applicant’s] but added that she previously had a student loan and had to support her mother.  She said in Taiwan she was not able to save any money because she could only earn enough to meet her expenses.  She added that in the three years since she applied for protection she has paid back a lot of money and has also been able to save some money.

3. While the Tribunal has significant concerns and doubts about [the applicant]’s claim to have owed NT[amount] to a loan shark, as discussed above, the Tribunal accepts that she had a debt in Taiwan, possibly from a failed business venture, that she wished to repay through working in Australia, and that was her motivation for applying for a protection visa in August 2017, after having been in Australia since October 2015 on working holiday visas. 

4. The Tribunal finds that, by her own admission, any remaining debt has now been almost entirely repaid and [the applicant] (and [the second applicant]) do not fear they will suffer treatment amounting to serious or significant harm, from a loan shark, their agents or anyone else, should they return to Taiwan now.

   Refugee criterion

5. Given the findings above, the Tribunal concludes there is not a real chance that either of the applicants will face treatment amounting to persecution involving serious harm at the hands of a loan shark and/or their associates or agents for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should they return to Taiwan in the reasonably foreseeable future.

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

   Complementary protection criterion

7. Having concluded that neither of the applicants meets the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

8. In considering whether there is a real risk that either of the applicants will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Taiwan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]

   [7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

9. Considering the applicants’ circumstances, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Taiwan, there is a real risk that either of the applicants would suffer significant harm as set out in s.36(2A), from a loan shark and/or their associates or agents, or anyone else.

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

    Member of the same family unit

11. There is no suggestion that either of the applicants 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, neither applicant satisfies the criterion in s.36(2).

    decision

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

    Paul Windsor
    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.

    …