1814130 (Refugee)

[2020] AATA 4528

1814130 (Refugee) [2020] AATA 4528 (9 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814130

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Paul Windsor

DATE:9 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 09 October 2020 at 4:33pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – religion – Christianity – mocked and attack by Falun Gong practitioners – non-appearance before the Tribunal – credibility concerns – delay in departing after visa granted – two return trips before applying for protection – freedom of religious belief in Taiwan – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 426A, 441A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
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 1 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Taiwan, applied for the visa on 27 November 2017.

3. In his protection visa application the applicant indicated he was born on [date] in New Taipei City, Taiwan.  He did not state his ethnicity but indicated he is a Mandarin speaker, a Christian and has never married.  He indicated he departed Taiwan legally [in] June 2017 on a Taiwanese passport issued [in] 2015 and arrived in Australia [in] June 2017, entering on a working holiday visa.[1]

   [1] See the Departmental file.

4. In his application, the applicant indicated that he sought protection in Australia because he feared he might be attacked by Falun Gong practitioners, who he claimed had mocked his Christian beliefs and punched him in November 2014.[2]

   [2] See the Departmental file.

5. After considering relevant country information, the delegate refused to grant the visa, finding that freedom of religious belief is protected by law in Taiwan and there is nothing to suggest there is discrimination between Falun Gong practitioners and Christians in Taiwan.  In relation to the complementary protection criterion, the delegate was not satisfied that there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there would be a real risk that he would suffer significant harm.

6. The applicant applied to the Tribunal for review of this decision on 15 May 2018.  He provided the Tribunal with a copy of the delegate’s decision record.[3]

   Failure to participate in the scheduled hearing

   [3] See the Tribunal file.

7. On 23 September 2020 the Tribunal wrote to the applicant advising that the Tribunal had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.  The applicant was invited to appear by telephone before the Tribunal to give evidence and present arguments at a hearing at 11:30 am on 9 October 2020.  The applicant was advised that the telephone number the Tribunal has for him is [phone number].  He was requested to advise if that number is not the correct number or if he would prefer the Tribunal call him on another number.  The applicant also was requested to read and complete an attached ‘Response to hearing invitation’ form within 7 days of receipt of the letter.

8. The letter advised the applicant that if he was not able to participate in the proposed telephone hearing he should advise the Tribunal as soon as possible.  He was advised to note that the Tribunal will only change the date if satisfied he has a very good reason for being granted an adjournment and, if the Tribunal did not advise him an adjournment had been granted, he must assume that the hearing will go ahead. 

9. The applicant was also advised that if he did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

10. The applicant did not respond to the hearing invitation.

11. The applicant was sent SMS reminder messages regarding the hearing on 2 and 8 October 2020 to his mobile phone number: [phone number].

12. On 9 October 2020 four unsuccessful attempts were made to contact the applicant on [phone number]: at 11:22 am; 11:25 am; 11:30 am; and 11:35 am.  On each occasion the call went to voicemail.[4]

    [4] See the relevant case note in the Tribunal file.

13. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act; the invitation, which was sent by email to the email address provided by the applicant in his review application, was not returned to sender; and SMS reminders about the hearing were sent to the mobile phone number provided by the applicant on two separate occasions.  The applicant did not respond to the invitation to attend the hearing and has not contacted the Tribunal to explain why he did not answer his phone and participate in the hearing.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CRITERIA FOR A PROTECTION VISA

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

19. 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 any 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

20. The applicant’s claims for protection were set out in his protection visa application. His claims were as follows:[5]

    [5] See the Departmental file.

    Q. 75.  I am seeking protection in Australia so that I do not have to return to: TAIWAN

    Q. 76.  Why did you leave that country?

    I am a Christian when I was 14 years old.  Our beliefs are different from FALUNGONG’s. That’s why our Christians are often in conflicts with followers of FALUNGONG.  In 11/2014. We were inviting students to pray in our church in that weekend.  Some FALUNGONG practitioners came to us and mocked our beliefs.  They said the purpose of our belief is used to scam money from Christians for the priest.  We were very angry and recriminated.  We abused each other.  But some of them punched us.  Both groups were taken to police station but policemen just said we should be friendly with each other and didn’t accuse them for punching.  After left police station some of them threatened to punch us again.

    Q. 77.  What do you think will happen to you if you return to that country?

    If I still to pray in the Christian church and invite people to take part in the pray FALUNGONG practitioners might attack me again.

    Q. 78.  Did you experience harm in that country?  Yes.

    FALUNGONG believers attacked me.

    Q. 79. Did you seek help within that country after the harm?  No

    The policemen don’t care about the conflicts between our two groups and the government always support Falun Gong practitioners.

    Q. 80.  Did you move, or try to move, to another part of that country to seek safety?  No

    It is not easy to move to another cities.  It is not easy to separate with my family.

    Q. 81.  Do you think you will be harmed or mistreated if you return to that country?  Yes

    It is the difference of our beliefs that make us in conflict with each other.

    Q. 82.  Do you think the authorities of that country can and will protect you if you go back?  No

    Government support FALUNGONG.  It provide money, sermon sites to FALUNGONG practitioners.

    Q. 83.  Do you think you would be able to relocate within that country to an area where you would not be harmed?  No

    I don’t want to separate with my family.

    Findings and reasons

    Identity

21. On the basis of the copy of his Taiwanese passport submitted to the Department,[6] the Tribunal accepts that the applicant is a national of Taiwan and that his identity is as claimed.  The Tribunal accepts that Taiwan is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Issues

    [6] See the Departmental file.

22. The issues in this review are whether the applicant 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 him being removed from Australia to his receiving country of Taiwan, there is a real risk he will suffer significant harm.

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

    Assessment of claims

24. 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 them.  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.)

    Claim to be at risk of harm from Falun Gong practitioners in Taiwan

25. The applicant claims that he and group of fellow Christians were mocked and attacked (punched) by Falun Gong practitioners when his church invited students to pray in their church one weekend in November 2014.  The applicant claims that Christians are often in conflict with followers of Falun Gong in Taiwan, that the police don’t care about the conflict between the two groups and the government always supports Falun Gong.  The applicant claims that he fears he will be harmed if he returns to Taiwan because of the difference in beliefs between the two groups.

26. The applicant has not provided any evidence to indicate either that there was conflict between Falun Gong practitioners and members of a Christian church in November 2014 or that there is broader conflict between Falun Gong practitioners and Christians in Taiwan.  He also has not provided any information to substantiate his assertion that the Taiwanese government favours Falun Gong practitioners over Christians.  Internet searches by the Tribunal also failed to uncover any information indicating or suggesting there was or is conflict between Falun Gong practitioners and Christians in Taiwan.

27. The Tribunal notes that the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant, indicates that the applicant first came to Australia [in] July 2015, on a working holiday visa granted on 26 March 2015.  The delay of more than three months in the applicant departing Taiwan after the grant of this visa strongly suggests that, if the applicant had been attacked by Falun Gong practitioners in November 2014 as claimed, he did not have significant concerns about his safety over the ensuing months, which might have resulted in him departing Taiwan shortly after his visa was granted on 26 March 2015.  The delegate’s decision record also indicates that the applicant departed Australia on two occasions, in early July 2016 for a little over two weeks, and again in June 2017 for nine days.  He indicated in his protection visa application that when he returned to Australia [in] June 2017, his port of departure was Taiwan, confirming that he had returned there at least once since he first came to Australia in July 2015.  That the applicant returned to Taiwan at least once (and possibly twice) since coming to Australia in July 2015 also undermines the applicant’s claim to have concerns about his safety in Taiwan.

28. Relevant country information on Taiwan indicates that the country is something of an exemplar in relation to religious freedom.  In it’s 2020 Freedom in the World report (covering 2019), Freedom House ranked Taiwan very highly (93 /100 points overall), commenting that ‘Taiwan’s vibrant and competitive democratic system has allowed three peaceful transfers of power between rival parties since 2000, and protections for civil liberties are generally robust’.  In relation to religious freedom, Taiwan achieved a rating of 4/4, with Freedom House commenting that ‘Taiwanese of all faiths can worship freely’ and that ‘Religious organizations that choose to register with the government receive tax-exempt status’.[7]

    [7] Freedom in the World 2020, Taiwan, Freedom House, >

    Similarly, the US Department of State International Religious Freedom report for 2019 indicates that the constitution of Taiwan provides for the free exercise and equal treatment under the law of all religions, which ‘shall not be restricted by law’ except as necessary for reasons of protecting the freedoms of others, imminent danger, social order, or public welfare.  While it is reported that most of the Taiwanese population consider themselves Buddhist (35 per cent) and Taoist (33 per cent), and 20 per cent are non-identifying or non-religious, the remainder includes a wide and diverse range of groups including Protestants (2.6 per cent) and Catholics (1.3 per cent).  The report indicates that many people incorporate practices of other faiths into their religious beliefs, and that, in addition to organized religious groups, many individuals also practice traditional folk religions, which include some aspects of shamanism, ancestor worship, and animism.  Some practitioners of Buddhism, Taoism, and other traditional religions also practice Falun Gong, a self-described spiritual discipline. The report indicates that, according to the leadership of the Falun Gong Society of Taiwan, Falun Gong practitioners number in the hundreds of thousands. [8] 

    [8] US Department Of State, Office of International Religious Freedom, 2019 Report on International Religious Freedom: Taiwan, >

    The report also indicates that registered religious groups operate on an income tax-free basis, receive case-by-case exemptions from building taxes, and must submit annual reports on their financial operations. Nonregistered groups are not eligible for the tax advantages available to registered religious organizations.  Many individual places of worship choose not to register and instead operate as the personal property of their leaders. The Falun Gong is registered as a sports organization and not as a religious organization.  There is nothing in the report, including the Status of Societal Respect for Religious Freedom section, to indicate or suggest that the government favours any particular religious organisations or that there are societal tensions between Christians and Falun Gong practitioners.  The report comments that the Presbyterian Church in Taiwan, in collaboration with other organizations, hosted the Taiwan International Religious Freedom Forum from May 30 to June 1 2019, and President Tsai Ing-wen, delivering the opening remarks, stated that Taiwan's religious freedom sets the standard in the Indo-Pacific region.[9]

    [9] US Department Of State, Office of International Religious Freedom, International Religious Freedom report for 2019, Taiwan, <>

29. Considering the available evidence and the relevant country information the Tribunal considers it most unlikely that the applicant was attacked by Falun Gong practitioners in November 2014 as claimed. If this did occur, the Tribunal considers it was an isolated incident among two groups of youths and not reflective of any broader tensions between Christian groups and Falun Gong practitioners in Taiwan. If the police were dismissive of the incident and simply counselled the two groups to be friendly with each other, as claimed, the Tribunal consider this would have been because they saw the incident as a trivial one, not because they don’t care about Christians or because the government favours Falun Gong practitioners over Christians. In this regard the Tribunal notes country information that indicates both that the Taiwanese National Police Administration enjoys high levels of citizen confidence (a 2016 survey indicated that citizen satisfaction levels with the police reached over 73 per cent),[10] and in 2019 Transparency International ranked Taiwan in the top 17 per cent of most clean/least corrupt countries (among 180 countries surveyed) in its Corruption Perceptions Index. Accordingly, the Tribunal concludes that there is not a real chance that the applicant would suffer treatment amounting to persecution involving serious harm from Falun Gong practitioners or supporters, or the Taiwanese government and its authorities, because of his Christian faith or practices, should he return to Taiwan.

    [10] ‘Statistics shows satisfaction with police reached all-time high 73.3%’, National Police Agency, Ministry of Interior, 23 September 2016 

    Refugee criterion

1. Given the Tribunal’s findings above, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm at the hands of Falun Gong practitioners or supporters, or the Taiwanese government and its authorities, or anyone else due to his Christian religious beliefs and/or practices, or for one or more of the other four reasons mentioned in s.5J(1)(a) of the Act, should he return to Taiwan in the reasonably foreseeable future.

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

   Complementary protection criterion

3. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

4. In considering whether there is a real risk that the applicant 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.[11]

   [11] 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].

5. Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Taiwan, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from Falun Gong practitioners or supporters, or the Taiwanese government and its authorities or anyone else.

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

   Member of the same family unit

7. 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

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

   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.

   …