1819914 (Refugee)

[2023] AATA 2465

1819914 (Refugee) [2023] AATA 2465 (23 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819914

COUNTRY OF REFERENCE:                  Sierra Leone

MEMBER:Senior Member G.A.F. Connolly

DATE:23 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 23 June 2023 at 5:30pm

CATCHWORDS
REFUFEE – protection visa – Sierra Leone – political opinion – All People's Congress campaigner – fear of harm from All People's Congress and Sierra Leone People's Party supporters – political violence – election campaigning – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 43
Migration Act 1958, ss 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v Minister for Immigration and Ethnic Affairs (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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 05 July 2018 by a delegate of the Minister for Home Affairs (Minister’s Delegate) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).[1]

   [1] see Protection Visa Assessment [File Number], dated 5 July 2018.

2. The male applicant is a citizen of Sierra Leone and is [age] years old.

3. [In] March 2018, the applicant was granted a visa to enter Australia for [specified purpose].[2]

   [2] see Protection Visa Assessment [File Number], dated 5 July 2018.

4. [Later in] March 2018, the applicant departed Sierra Leone.[3]

   [3] see Protection Visa Assessment [File Number], dated 5 July 2018.

5. [Later in] March 2018, the applicant arrived in Australia.[4]

   [4] see Protection Visa Assessment [File Number], dated 5 July 2018.

6. On 08 May 2018, the applicant lodged his claim for a protection visa.[5]

   [5] see Protection Visa Assessment [File Number], dated 5 July 2018.

7. [Later in] May 2018, the applicant’s [visa] ceased.

8. On 21 May 2018, the applicant made a statement to the Department of Home Affairs (Department).

9. On 22 May 2018, the applicant was interviewed by the Minister’s Delegate.

10. On 05 July 2018, the Minister’s Delegate refused the applicant’s claim for a protection visa.[6]  The Tribunal has read and considered the decision of the Minister’s Delegate.

    [6] Protection Visa Assessment [File Number], dated 5 July 2018, at 14.

11. On 20 July 2018, the applicant applied to this Tribunal for review of the decision of the Minister’s Delegate.

12. On 09 March 2023, the applicant appeared before the Tribunal on to give evidence and present arguments.  The applicant was unrepresented. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.

13. At the conclusion of the Tribunal hearing, the applicant was given a long period of time (to 14 April 2023) to prepare and file further submissions and evidence in support of his claim. What was eventually filed was bare and lacking in the needed detail, particularly as it related to the applicant’s case, as is discussed further in these reasons.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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. 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).

3. 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.

4. 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

1. In accordance with Ministerial Direction No.84, made under s 499 of the Migration 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.

2. The hearing before this Tribunal is a hearing de novo and not an appeal, strictly speaking, at least not an appeal to any court. The matter before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government.

3. In this matter, the Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act).  The Federal Court said this of the Tribunal’s task[7]:

   The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.

   It goes without saying that no two cases are the same and that each case must be judged according to its own facts and on its own merits.

   [7] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.

CONSIDERATION OF Claims and evidence

1. The substance of the applicant’s claim, repeated in the hearing before the Tribunal, is that he cannot return to Sierra Leone because he fears he will suffer harm from supporters of both the All People's Congress (APC) and the Sierra Leone People's Party (SLPP).

The Politics of Sierra Leone

Political parties and tribal loyalties

1. The 2020 United States Department of State’s report on Sierra Leone’s human rights situation, and, crucially, compiled after the 2018 elections, reported the following[8]:

   Strong ethnic loyalties, biases, and stereotypes existed among all ethnic groups. Ethnic loyalty was an important factor in the government, armed forces, and business. Complaints of ethnic discrimination in government appointments, contract assignments were common. Little ethnic segregation was apparent in urban areas, where interethnic marriage was common.

   [8] Department of State of the United States, 2020 Country Reports on Human Rights Practices: Sierra Leone, at 24.

2. The earlier 2018 report noted that the domestic ethnicities of Sierra Leoneans had some influence on political support in Sierra Leone, noting the two dominant groups or tribes of the Mende and the Themne each make up ~30% of the Sierra Leone population.  In that 2018 report, this was said[9]:

   The Mende traditionally supported the SLPP and the Themne the APC. The Limba, the third most populous ethnic group, traditionally supported the APC. Other ethnic groups had no strong political party affiliations. The opposition APC party had repeatedly accused the SLPP of giving preference to populations in the Southeast, who are mostly Mendes, in filling government positions. As of August 30, ministers from the Southeast held 54 percent of cabinet positions, ministers from the South ands East 25 percent, and those from the Western peninsular the remaining 16 percent.

The Sierra Leone Presidential election of 2018

[9] Department of State of the United States, Sierra Leone 2018 Human Rights Report, at 13-14.

1. Again, to refer to the 2020 United States Department of State’s review of the 2018 Sierra Leone election, this was noted:

   Elections and Political Participation Recent Elections: The March 2018 presidential election, in which Julius Maada Bio of the Sierra Leone People’s Party (SLPP) prevailed, and the January 2018 parliamentary election, were regarded by most observers as free and fair. Several parliamentary and local re-run and by-elections held on December 12 were regarded as free and fair. There were no national level elections held during the year.

   Political Parties and Political Participation: Political parties were free to register and operate in the country. A total of 17 political parties were registered with the Political Parties Registration Commission but only four were elected into parliament during the 2018 general elections. Fourteen traditional authorities (paramount chiefs) and three independent candidates were represented in the state legislature. The NGO Center for Accountability and Rule of Law reported clashes in Freetown between supporters of the APC and SLPP took place in January. In a January 27 incident, 27 persons were reportedly wounded. Police arrested 19 persons after the clash; all were later released on bail.

2. Reporting from various sources suggests that there was indeed some election violence in 2018, especially after the election results were announced.  The non-partisan Carter Centre compiled a comprehensive report on Sierra Leone’s elections to the effect that although there was periodic episodes of violence, “….for the most part the campaign was conducted in a peaceful manner.”[10]  As is noted below, the losing candidate in the 2018 elections lives undisturbed in Sierra Leone and is running again in the forthcoming 2023 elections.

   [10] Carter Centre, ‘Presidential and Parliamentary Elections in Sierra Leone’, 27 March 2018.

3. At the same time, in terms of the events of 2018, it can be noted that there have been for some time, instances of Sierra Leonean athletes and sporting players staying in host countries after competitions and games have finished.  This said, those Sierra Leone athletes who do overstay and then return to Sierra Leone, either voluntarily or as a result of deportation/removal, are unharmed on their return to Sierra Leone.[11]

   [11] Barrie M F 2016, ‘Sheriff Suma urges Sierra Leonean Olympians not to abscond’, BBC Sport, 11 July.

4. Accordingly, there is a dearth of evidence before the Tribunal that Sierra Leone, after the 2018 elections, was and is a place in which political supporters (of any political party party) are facing the threat of harms, of any kind, however defined, for their political opinions and/or their membership of any social groups.

CONSIDERATIONS OF THE APPLICANT’s CLAIM

Department’s issues with the Applicant’s credibility

1. At the Protection Visa hearing conducted by the Department on 05 July 2018, the Minister’s Delegate expressed their concern that the Applicant had been evasive about his relationship, while the applicant was in Sierra Leone, with the former Sierra Leone [athlete], [Mr A], who now lives in Australia.  The reason that [Mr A] lives in Australia is that, while he was part of the [Sierra Leone team], where [Mr A] was [an athlete], he did subsequently seek to flee the Sierra Leone team and seek asylum in Australia.[12] The Minister’s Delegate gave weight to the applicant already knowing [Mr A], and being evasive about their relationship, such that it seems from reading the Minister’s Delegate’s decision that this relationship between the applicant (soon to arrive in Australia) and [Mr A] was of crucial importance.   Reasonable minds may differ on the weight to be given to it in all of the circumstances of this case, particularly in respect of assessing the applicant’s credibility.  I note this as I have read these reservations but give less weight to them. 

   [12] [Source deleted].

The Applicant’s history in the context of the 2018 Elections

1. The applicant says that he is a member of the Sherbro tribe, which reported makes up ~2% of the Sierra Leone population.  A majority of the Sherbro tribe are Christian.  Like the Minister’s Delegate, I am aware of no evidence to the contrary nor was I given any reason to here doubt the applicant.[13]

   [13] see Protection Visa Assessment [File Number], dated 5 July 2018.

2. In February 2018, it is undisputed that the applicant in 2018 was [an Occupation 1] at [a workplace] in Bo.[14]  The applicant was also a supporter of the All People’s Congress in some way.  The applicant had played [Sport 1] in Sierra Leone at club level and was, one can fairly deduce, well known in Bo and elsewhere.  It was the applicant’s evidence at the hearing that he had played [Sport 1] at [a higher level] and was well known as [an Occupation 1] at the Bo [community].  Additionally, the applicant coached [Sport 1] and was a mentor for young players.  There is evidence of the applicant being licensed by the relevant Sierra Leone [Sport 1] authorities to both play competitive [Sport 1] and to coach [Sport 1].[15]  The applicant mentioned that he was playing and coaching [Sport 1] in Australia but no evidence was supplied of this [Sport 1] activity by him, despite the leave and directions given to the applicant at the Tribunal hearing.

   [14] Applicant’s Statutory Declaration sworn 14 April 2023, at Annexure A, p1.

   [15] Applicant’s evidentiary bundle, filed 14 April 2023.

3. On 07 March 2018, the first round of elections in Sierra Leone, contested between Julius Maada Bio (of the SLPP) and Samura Kamara (representing the incumbent APC).  It was concerning at the hearing that the applicant could not identify with any precision when the first round of voting in 2018 occurred, given his claims that he was heavily involved in Sierra Leone politics, and he eventually incorrectly nominated 18 March 2018 as the first round. To be fair, the applicant may have confused the date with the formal announcement of first round results. In any case, this lack of precision did provide some grounds for concern.

4. In March 2018, the applicant was a supporter of the APC and this was not disputed by the Delegate’s decision.[16]  However, within Sierra Leone, because he was Sherbro, he said he was assumed to be a supporter of SLPP.[17]  The applicant’s evidence was he was attacked at political rallies as he was considered to be a political activist but also attacked by both APC and SLPP supporters.  He was also, he said, threatened with death, and physically beaten by political supporters in Bo. [18] There was also threats made against the applicant when he was in both Freetown and Bo.[19]  However, these claims were all made by the applicant and there is no evidence, independent of the applicant, that any of this occurred.

   [16] see Protection Visa Assessment [File Number], dated 5 July 2018.

   [17] Applicant’s Statutory Declaration sworn 14 April 2023, at Annexure A, p2.

   [18] Applicant’s Statutory Declaration sworn 14 April 2023, at Annexure A, p1-2.

   [19] Applicants oral evidence in the hearing dated 09 March 2023.

5. [In] March 2018, the applicant arrived in Australia.[20]

   [20] see Protection Visa Assessment [File Number], dated 5 July 2018.

6. On 31 March 2018, the second round of the Sierra Leone elections occurred. The winner was Julius Maada Bio of the SLPP. The loser of that election, Samura Kamara of the APC, remained in Sierra Leone, and is, again, contesting the forthcoming 2023 elections to be held on 24 June 2023.  Mr Kamara has not suffered any persecution or harm since losing the 2018 election.

7. The applicant supplied evidence (in April 2023) of post-elections violence in April and May 2018.[21]  However, this evidence is contradicted with what was found by the independent investigations of the 2018 elections that were done much closer to the date. 

   [21] Applicant’s evidentiary bundle, filed 14 April 2023.

8. On 08 May 2018, the applicant lodged his claim for a protection visa.[22]

   [22] see Protection Visa Assessment [File Number], dated 5 July 2018.

Assessing the applicant’s case

1. Overall, this is a difficult case.  It does seem on the evidence that the applicant is a political campaigner of some form.  The only question is whether the evidence supports a finding that the applicant’s case engages Australia’s protection obligations under either s 36(2)(a) or (aa). What has plagued this case, seemingly since the applicant first made his claim for protection in May 2018, has been a lack of evidence, which can only be supplied by the applicant.  It may be that the applicant does have a good case but he has, simply, not made it, at least to the degree that is necessary to persuade this Tribunal.

2. Taking the most generous view that this Tribunal can take of the applicant’s very bare case, it can be accepted that the applicant did engage in politics and that he did campaign for the APC and against the SLPP in the period just before the 2018 election.  The Tribunal has read and considered the evidence the applicant has filed with the Tribunal and accepts that the applicant promoted the APC as someone know for his [Sport 1] career.  However, the evidence cannot support anything further than this, and, again, this is the Tribunal taking the most generous view it can take of what little evidence has been filed by the applicant in the roughly five years of his case running, first before the Minister’s Delegate and now before this Tribunal.

3. To reiterate: where an applicant makes a claim of a fear of persecution, the mere fact that a person claims this fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is well-founded or that it is for the reason claimed. A fear of persecution is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation. An assertion, however passionately and/or repeatedly it is made, is not proof of its truth.

4. Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making of the kind done by this Tribunal, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is this Tribunal required to accept uncritically any and all of the claims and allegations made by an applicant.[23]  This is especially where a case such as this was first commenced in 2018 and it is now 2023, and where the Tribunal gave the applicant significant leave and directions as to what was required of the applicant.

   [23] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596, Nagalingam (1992) 38 FCR 191, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.

1. In determining whether or not an applicant is owed protection obligations by Australia, the Tribunal must first make findings of fact on the claims that she or he has made. This may - and, indeed, almost always will – involve an assessment of the particular applicant's credibility.  In assessing an applicant’s credibility, the Tribunal is aware of the importance of being, appropriately, sensitive to the difficulties faced by an applicant for protection.

2. The Tribunal is aware of the pressures on applicants and that not every case can be prepared to a state anywhere close to approaching perfection. As a general rule, this Tribunal grants the benefit of the doubt to applicants who are generally credible even if unable to substantiate all of their claims.  At the same time, an applicant who is not credible will, almost always, have their case rejected.

3. In a similar way, the Tribunal’s rejection of an applicant’s claims and allegations does not require the Tribunal to posit any rebutting evidence. This is so especially where those claims conflict with the independent evidence of the reality of an applicant’s country of nationality.[24]  If the independent evidence of the reality of Sierra Leone is that it is a safe place for a person in the applicant’s position to return to, then it is for the applicant to demonstrate, by argument and evidence, why, in their particular circumstances, their case is one that engages Australia’s protection obligations.

   [24] Randhawa (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai; (1994) 34 ALD 347 at 348 per Heerey J;  Kopalapillai (1998) 86 FCR 547.

FINDINGS

1. In this case, this applicant did seem to be trying his best to be honest with the Tribunal.  However, the applicant only, at most, supplied evidence that he was, briefly, involved in Sierra Leone politics in 2018.   There was, simply, no evidence of the kind that the applicant was someone whose case would trigger Australia’s protection obligations. This is especially so given that the applicant’s case had been on foot for some five years and he had been given, even after the Tribunal hearing, every opportunity and ever more time to make his case and supply evidence in support of it.  It is the applicant’s responsibility to make their case. This applicant failed to do this and there is no evidence, otherwise, independent of the applicant, that he is someone to whom Australia owes protection obligations.

CONCLUSION

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has any protection obligations under s 36(2)(a).

2. 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).

DECISION

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

Statement made on 23 June 2023 at 5:30pm

Graham Alfred Frederick Connolly

Senior Member

Administrative Appeals Tribunal

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.

…

5HMeaning 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.

…

5JMeaning 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.

1. 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.

1. 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:

1. 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;

2. conceal his or her true race, ethnicity, nationality or country of origin;

3. alter his or her political beliefs or conceal his or her true political beliefs;

4. conceal a physical, psychological or intellectual disability;

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

6. alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

1. 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.

1. 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.

1. 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.

5KMembership 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:

1. the first person has ever experienced; or

2. 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.

5LMembership 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:

1. the characteristic is an innate or immutable characteristic;

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

3. the characteristic distinguishes the group from society; and

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

5LAEffective 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:

1. the relevant State; or

2. 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.

1. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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:

1. is mentioned in paragraph (a); and

2. 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:

1. is mentioned in paragraph (aa); and

2. 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.

…