1813141 (Refugee)

[2024] AATA 1952

1813141 (Refugee) [2024] AATA 1952 (26 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813141

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Gabrielle Deal

DATE:26 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 29 April 2024 at 11:36am

CATCHWORDS

REFUGEE – protection visa – Vietnam – religion – Buddhist – imputed political opinion – environmental protests – detention – physical assault – restrictive religious registration processes – exit procedures – decision under review affirmed

LEGISLATION

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

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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 on 30 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, arrived in Australia [in] November 2017. On 6 December 2017 the applicant applied for the protection visa.

3. On 30 April 2018 the delegate refused to grant the protection visa. While the delegate appeared to accept the applicant was of Buddhist faith and had attended an environmental protest in Vietnam, the delegate did not accept the applicant was an activist or high profile or a religious leader. Overall, the delegate found the applicant did not have a profile of interest, did not meet the relevant definition of refugee, did not face a real risk of significant harm, and was not a person in respect of whom Australia had protection obligations.

4. The applicant lodged a ‘Application for review’ with the Tribunal on 6 May 2018 providing additional information and a copy of the delegate’s decision refusing the protection visa.

5. By email dated 13 November 2023 the applicant provided the Tribunal with a copy of his father’s death certificate and a signed ‘Pre-hearing information form’ containing additional information.

6. On 29 January 2024 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 2 February 2024 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

10. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

11. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

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

    CLAIMS

13. The applicant’s claims can be summarised as follows:

    • He is a male in his [age range], from [District 1], Hue Province, Vietnam
    • He grew up in [District 1], completing primary and secondary school in the area and then a college course in Hue City. In 2015 he moved to Binh Duong where he worked as [an occupation] for 2 years before departing from Vietnam to Australia in 2017.
    • His father passed away in [District 1] from illness in 2019. His mother and [specified family members] still live in Vietnam.
    • He belongs to a Buddhist group that is not socially accepted or supported by the government. He does not have freedom to practise his faith in Vietnam and he and others in his faith were impacted daily by government red tape.
    • He attended protest(s) about the environment and religion. He does not have freedom to express his views about the environment in Vietnam. He was put in custody because of his protest activity and was hit by police while in custody.
    • The communist government in Vietnam controls everything and he does not like or trust them. They use the police to control people and detain critics.
    • As a result of the issues he experienced in Vietnam, he legally fled from Vietnam to Australia in November 2017 in fear of his safety.
    • He fears being charged, put in prison, or otherwise harmed by the local government on account of his faith and political views and activities in Vietnam. He is so fearful he did not return to Vietnam even when his father passed away from illness in 2019.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

15. The applicant has consistently claimed to be a citizen of Vietnam, to not be a citizen of any other country, and to not have a right to reside elsewhere, and based on this and his Vietnamese passport and birth certificate I accept this. I consider Vietnam the receiving country.

16. In the applicant’s protection visa application form he claims he grew up in [District 1], that his parents and [siblings] (around [ages], respectively) still live in Vietnam, that he completed primary and secondary schooling in [District 1], then a course at [a named] College in Hue City, and then in 2015 moved to Binh Duong where he worked as [an occupation] in the 2 years leading up until his departure from Vietnam for Australia in 2017. The applicant’s birth certificate provides details in relation to his parents consistent with these claims including that his parents’ permanent residence is in [District 1] in Hue Province. At the review stage the applicant provided the Tribunal with a copy of his father’s death certificate showing his father passed away from illness in [District 1] [in] November 2019. Based on the consistent detail provided and supporting documents I accept the applicant’s claims regarding his family and address, education, and work history. While the applicant’s protection visa application form did not specify his ethnicity his father’s death certificate and the applicant’s birth certificate indicates the family are “Kinh” and DFAT’s 2022[1] report states that about 85 percent of the population in Vietnam is ethnically Kinh. I consider the applicant is Kinh.

    [1] DFAT 'DFAT Country Information Report - VIETNAM - 11 January 2022', 11 January 2022, 20220111094403.

17. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

18. In the applicant’s protection visa application form he claimed he was of Buddhist faith. He also said that whenever a religion undertook activities, they had to first ask for the government’s permission. In contrast, at the review stage the applicant claimed he belonged to the “channel” of Buddhism that was not supported by the government or “socially accepted” and indicated he was not able to practise his faith freely in Vietnam. In contrast to his evidence at the primary stage that religious groups had to ask the government for permission to do activities, at the review stage he said that this also restricted him in his daily life because the authorities were constantly restricting him by making him and many others go through “red tape” and then briefly stated “for example, to have local meetings or festivals”. Despite the provision of additional information at the review stage in response to the delegate’s decision refusing the protection visa, the applicant’s evidence in relation to these claims has been brief and generalised and suffers from gaps such as when these claimed event(s) occurred. He has not claimed to be a religious leader or organiser. In submissions at the review stage, he appeared to accept suggestions in the delegate’s decision that the applicant was not a religious leader, and submitted that this did not mean what he was claiming did not happen to him and made the generalised statement that this was happening to hundreds of others in Vietnam every day who wanted a better life in a country like Australia.

19. DFAT’s 2017[2] report noted that while freedom of religion was enshrined in the Constitution and the government maintained a strong atheistic stance, Vietnam was traditionally a Buddhist country, that more than half the population (mainly Kinh) were adherents of Mahayana Buddhism and 1.5 to 3 percent followed Hoa Hao Buddhism which held full government recognition and registration. It also reported an important aspect of Hoa Hao Buddhism was the emphasis on practising at home or while tending land, given most followers were farmers, unlike the applicant who has never claimed to be a farmer. It reported that the Penal Code established penalties for religious practices that in the government’s view undermined peace, national independence, and unity, that the government’s routine application of these laws led to limits on religious freedom, particularly in relation to unregistered organisations, but that a new Law on Belief and Religion had been passed in November 2016 providing some modest improvements essentially reducing some government red tape. It also reported that the government continued to monitor the activities of some religious groups, mainly unregistered church groups in ethnic minority communities, due to their real or perceived political activism and regularly blocked religious gatherings, and temporarily detained some members of unregistered groups, especially in ethnic minority areas. DFAT also noted authorities monitored and harassed leaders of unregistered Hoa Hao Buddhist groups, and that adherents of these groups who engaged in open criticism of the government entities in charge of registering Hoa Hao Buddhist groups faced a high risk of harassment, destruction of property, and pressure to join a government sanctioned group. DFAT’s 2017 report makes no mention of social discrimination in relation to Buddhists or unregistered Buddhist groups, and while I acknowledge it was only more recently published, DFAT’s 2022 report states that religious intolerance between people of different faiths is not an everyday problem in Vietnam.

    [2] DFAT, ‘DFAT Country Information Report Vietnam', 21 June 2017, CISEDB50AD4597

20. As detailed above the applicant’s claims regarding his faith have appeared somewhat exaggerated over time, brief and generalised, despite his provision of additional information at the review stage. On the evidence including the country information and based on the applicant’s profile as an educated Kinh male from Hue Province while I am willing to accept he is a Buddhist, and that he may have heard about religious organisers or leaders having to deal with government “red tape” in organising events, I do not accept he is part of a religious group that is not supported by the government, not socially accepted, unregistered, that he was unable to freely practise his faith, or that he was a religious leader or high profile or organised religious events or personally experienced issues in relation to government red tape as claimed.

21. The applicant claims he was detained and assaulted by police while in custody because of his participation in an environmental and religious protest. The applicant’s evidence in relation to this has been brief. In his visa application he stated “I was in custody because I ahere protest about environment and religion [sic]”. He also said that he did not have any freedom as he was put in custody after protesting “about environment [sic]”. He also briefly claimed to have been hit by Vietnamese police while in custody. At the review stage he indicated he did not have any freedom in Vietnam to express his environmental views. He does not claim to be high profile or a leader. In response to the delegate’s decision refusing the protection visa the applicant acknowledged he was not of high political stature or a highly public person but said that this did not mean that what he was claiming did not happen or was not happening to him and many other people every day in Vietnam. He also appeared to acknowledge the lack of evidence in his matter, in response to comments in the delegate’s decision, seemingly blaming this on the lack of support from the Vietnamese government for his religion and environmental protests and the Vietnamese government’s treatment of him and hundreds of other Vietnamese. At the review stage the applicant suggested that this fear prevented him from returning even after his father passed away in 2019, although I consider there are many practical reasons for why he might not have wanted to return to Vietnam at that time. DFAT’s 2017 report indicated that the Communist Party of Vietnam (CPV) tightly controlled political discourse and did not tolerate political expression against the CPV, the government or its policies. DFAT assessed that known active organisers or leaders of political opposition were at a high risk of intrusive surveillance, detention, arrest, and prosecution by authorities. DFAT also noted that the authorities would intimidate and shut down protests about land confiscation, human rights issues, or the government’s handling of issues, with those protesting also sometimes being detained and released the same day by authorities with few reported cases of plain clothed police using violence to break up protests in 2016. In 2016 the UK Home Office[3]  also reported those perceived to have taken part in opposition political activities or perceived as having involvement in opposition politics (like human rights defenders or journalists) may be seriously harmed by authorities. Both the 2017 DFAT and 2016 UK Home Office reports noted that the government imposed severe travel restrictions, which could include denial or confiscation of passports, on high profile activists, those deemed a threat to national interest, or perceived as having involvement in opposition politics.

    [3] UK Home Office, 'Country Policy and Information Note. Vietnam: Political opponents. Version 2.0', 30 November 2016, OGD7C848D100.

22. Despite the provision of additional information at the review stage in response to the delegate’s decision refusing the protection visa, the applicant’s evidence about his claimed political and religious protest(s) and detention and assault by police is brief and generalised and suffers from gaps such as when these event(s) occurred. Moreover, at odds with the country information noted above reporting of severe restrictions on movement for high profile activists, those perceived a threat to national interest, or as involved in opposition politics, and his claim to have been of ongoing interest to authorities, the applicant was issued with a passport by the Vietnamese government in 2016 and then legally travelled on this passport to Australia in 2017 without issue. As noted above I do not accept the applicant is an adherent of a religious group that is unsupported by the government or society or unregistered. I have found, among other things, that his claims and evidence regarding his faith have been somewhat exaggerated with time. On the evidence, I also do not accept the applicant participated in protest(s) in Vietnam as claimed, that he was detained and hit by police while in custody as claimed, or that he had an adverse profile of interest with the Vietnamese authorities when he left Vietnam in 2017. Based on the consistent claim and supporting documents like his passport I accept the applicant legally travelled to Australia in 2017, however I do not accept he fled Vietnam in fear of his safety for the reasons claimed. The applicant has not claimed involvement in any political activities whether critical of the Vietnamese government or otherwise over the last 7 or so years since being in Australia and I do not consider that he has had any involvement in such activities in Australia. While I am willing to accept as plausible that the applicant privately holds views critical of the CPV, as he has said he does not like or trust the CPV who he claims use the police to control people, I do not accept he has publicly voiced these views or any other privately held political, environmental, or religious views that he may hold, and based on this I do not accept he has a genuine desire to do so now or in the reasonably foreseeable future. I am not satisfied the applicant is an activist or that he has an adverse profile of interest with the Vietnamese authorities.

1. As noted above I accept the applicant is a Buddhist in his [age range] from [District 1] in Hue where he still has some family, that he worked briefly [in] Vietnam after finishing college and legally travelled to Australia in 2017. While the applicant lived for a short period in Binh Duong prior to his departure for Australia, he is originally from [District 1] where it appears he still has family, and for this reason I consider that if he were to return to Vietnam he would very likely return to there. DFAT’s 2022 report notes that after the Vietnam War and establishment of the unified Socialist Republic, the state created official religious groups and since then has required many religious groups to register with the government. The government currently recognises 38 religious organisations linked to 16 religious traditions including Buddhism, Islam, and Catholicism. DFAT reports of a number of Buddhist religions practised in Vietnam including Mahyana Buddhism, Theravada Buddhism and Hoa Hao Buddhist. DFAT assesses that Buddhists who belong to registered organisations and are not politically active face a low risk of official discrimination, meaning there is not a pattern of this behaviour, and that more generally, adherents of officially recognised religious groups are generally able to practise their faith with minimal interference. DFAT reports that religious intolerance between people of different faiths is not an everyday problem in Vietnam. The 2022 DFAT and 2023 UK Home Office[4] reports indicate some protests are tolerated, especially on practical issues such as environmental concerns, and that while the possibility of low-level activists being arrested cannot be discounted, those who publicly criticise the government face a moderate risk (meaning the incidence suggests a pattern of this behaviour) of official discrimination, and ultimately whether an individual is at risk of persecution will depend on their level of involvement, actions, the topic, and any past interest in them, among other things. The UK Home Office notes that those who protest on political or sensitive topics may be intimidated, arrested, and subsequently released by police although the UK Home Office expresses the view that this is not, in general, sufficiently serious by its nature and/or repetition to amount to persecution. As noted above I do not accept the applicant is a member of a Buddhist group unsupported by the government or society, or that is unregistered, or that he is an activist or has an adverse profile of interest with the Vietnamese authorities. Based on the country information detailed above and the applicant’s profile I am not satisfied he faces a real chance of being charged, detained, or otherwise harmed by the authorities or anyone else because of his faith, any privately held political, environmental, religious, or other views, or for any other reason. ‘Real chance’ and ‘real risk’ involve the same standard. For the same reasons, I am also not satisfied the applicant faces a ‘real risk’ of being charged, detained, or otherwise harmed by the authorities or anyone else for the reasons claimed.

   [4] UK Home Office, 'Country Policy and Information Note Vietnam: Opposition to the state', 31 August 2023, 20230901142428.

2. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

3. 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).

4. 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).

5. 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

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

   Gabrielle Deal
   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.

   …