1821923 (Refugee)

[2024] AATA 3422

1821923 (Refugee) [2024] AATA 3422 (2 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821923

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Mark Oakman

DATE:2 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 02 July 2024 at 4:36pm

CATCHWORDS

REFUGEE – Protection Visa – Indonesia – race – mixed Arab ethnicity – difficulties in supporting himself as well as supporting his family – parents’ medical conditions – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 July 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 Indonesia, applied for the visa on 9 February 2018. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations.

3. The applicant appeared before the Tribunal on 14 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Receiving Country

11. The applicant provided a copy of his Indonesian passport. He stated in his protection visa application that he was a citizen of Indonesia and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of Indonesia. Indonesia is the receiving country for the purpose of this assessment.  

    Migration history

12. The applicant arrived in Australia in November 2012 on a student visa. He returned to Indonesia for a holiday in 2013 and his last arrival date in Australia was in January 2014. He lodged an application for a protection visa on 9 February 2018.

    Background

13. According to information given by the applicant in his application and at the hearing, he is [age] years old and was born in Bogor, Jawa Barat, Indonesia, where he lived in the family home throughout his time in Indonesia. He has never married and has no children. His parents divorced about 20 years ago. His father continues to live in the family home. His mother lives elsewhere in Bogor with one of his sisters. His brother, who is an Australian citizen, and his brother’s family, live close to his father in Bogor. His other sister lives close to Jakarta. He is Indonesian / Arabic and Muslim. He speaks, reads, and writes Indonesian and English. He attended school in Indonesia, completing high school ([year range]). He also completed a [qualification], and he [courses]. In Indonesia he worked as an [Occupation 1] for about 18 months (from 2007), and in an office for two years (from about 2009). He was unemployed for a short period before coming to Australia, during which time he was supported by his father.

14. In Australia he has completed [studies]. He initially worked in Australia as [various occupations] (between 12/2012 and 5/2017). Since mid-2017 he has worked as a [Occupation 2], where he currently works 48 hours a [week]. He sends money to his family in Indonesia and estimated he had sent between $10-15,000 to his family in the last 12 months.

    Evidence before the Department

15. In the protection visa application lodged 9 February 2018, the applicant made the following claims (see pages 17-19 of his application) [sic]:

    ·‘Select the country or countries from which this applicant is seeking protection and cannot return to – Indonesia.

    ·Provide reasons why this applicant left that country - I left Indonesia to join my family unit in Australia and my only close sibling that supports me.

    ·Did this applicant experience harm in that country? – Yes. I experienced severe financial hardship in Indonesia and sadness from being separate from my only close sibling who is an Australian.

    ·Did this applicant seek help within the country after the harm? Give details - No. My brother has supported me for many years and I wish to remain in Australia under complimentary protection to remain a family unit with my sibling.

    ·Did this applicant move, or try to move, to another part of the country to seek safety? Give details – Yes. I moved to Australia through the help of my Australian citizen brother and whom I have lived with ever since arriving in Australia.

    ·Explain what this applicant thinks will happen to them if they return to that country - I am unable to support myself in Indonesia and are not close with family members in Indonesia. My other siblings have all made their own families and do not provide me with financial support. Only my Australian sibling assists me in life and I wish to remain in Indonesia to stay as a family unit with my brother.

    ·Does this applicant think they will be harmed or mistreated if they return to that country? Give details – Yes. My primary concern if I was to return is the separation of my family unit and the inability to support myself in Indonesia. I seek complimentary protection to allow me to remain in Australia with my only close family member and Australian citizen.

    ·Does this applicant think the authorities can and will protect this applicant if they go back? Give details – No. Indonesia cannot offer me any assistance in the deprival of my livelihood and the separation of my sibling.

    ·Does this applicant think they would be able to relocate within that country to an area where they would not be harmed? Give details - No. I have nowhere to relocate to in Indonesia my only close family member resists in Australia and I beg the Australian government to allow me to stay in Australia with my brother.’

16. The applicant was not invited to an interview with the delegate. 

    Evidence before the Tribunal

17. The applicant lodged his application for review with the Tribunal on 29 July 2018 in relation to the refusal to grant his protection visa.

18. On 7 February 2024, the applicant emailed the Tribunal a completed pre-hearing information form. Under the heading Claims for protection, among other things, the form asks ‘Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country?’. The applicant responded:

    ·I hope Australian government can grant me a protection visa because I’m only family member who can give financial support for my family back home. My parents got medical issues that need financial support for their medical expenses. My father got [medical conditions] that needs continuous medical treatment. My mother got chronic arthritis that makes her unable to function properly on daily activities. I’m afraid I will no longer be able to support their medical expenses if I go back to Indonesia. I have been a good resident in Australia for the past 12 years and I have no criminal record, and I always try to establish a good relationship with other members of Australian community. Australia has been helping me in the last 12 years and I’m willing to contribute and give back to the community. I hope that I will be granted permit to stay in Australia so I can keep supporting my parents with their medical expenses and I’m the only one who can do that as my Australian citizen brother, who currently is living in Indonesia, got some serious health issue as well. He’s got blood in his brain stem. I hope the tribunal or Australian government can grant me protection visa or allow me to stay in Australia. Thank you for your concern.

19. The applicant was invited to a hearing on 27 March 2024. As he did not attend the Tribunal dismissed the application under s 426A(1A)(b) of the Act. The applicant applied for reinstatement of the application within the prescribed period and his application was reinstated. He appeared before the Tribunal in person on 14 May 2024 to give evidence and present arguments. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.

20. At the start of the hearing the applicant provided some recent Indonesian medical records concerning his father, mother, and brother.

    Analysis, reasons, and findings

21. The applicant said at the hearing that he left Indonesia because he wanted to study and to save some money. He was asked what he fears would happen to him if he returned to Indonesia. He said he felt he wouldn’t be able to support himself and his parents as well. He likes to give, to give donations and help people but, if he returned to Indonesia, he would not be able to do so. He’s donated to the building of a well for Muslim schools and for care to old people in Indonesia, and to [a charity] here. He said it is called ‘Zakat’ in Islam, an obligation to donate.

22. He also said that he loves his father, but his dad is a difficult person and if he returned it would stress him out. His brother also has difficulties with their father. He was asked what he meant by being stressed out, and said there were always problems with his father, he is always trying to embarrass you, embarrass you when they go out, he asks for money but not sure if it is for what he says it is, and he thinks his father, based on what he has seen on YouTube, has a narcissistic personality. He confirmed he had no other fears if he were to return to Indonesia. He was asked where he would live if he returned to Indonesia, and he said he would spend half his time with his father and half with his mother.  

23. He discussed the medical documents he provided to the Tribunal. They were in Indonesian. There were reports in relation to a check-up and tests his father had in December 2023. It refers to, among other things, his [conditions]. It gave treatment recommendations including seeing [medical specialists], and recommended he eat healthy, drink more water, get regular exercise etc. There was a medical report dated from April 2024 diagnosing his mother with arthritis of her hands and toes and osteoarthritis of her left knee. There was a hospital admission report from February 2024 for his brother. It diagnosed a stone in the left urinary tract, mentions medications and [treatment]. There was a report from April 2024 diagnosing his brother with [a] syndrome. The applicant said that although it wasn’t mentioned there, his brother had blood clots and previously had a stroke, and he is receiving further diagnoses and treatment. His mother also has [a medical condition].

24. He was then asked if he could confirm whether there were any other fears about returning to Indonesia that hadn’t been covered in the hearing. He said his ethnicity may make it difficult to find a job in a certain environment. He explained that as someone of mixed Arab ethnicity he might be treated badly in some work environments, such as being paid a different wage or colleagues would make it uncomfortable for him to be there until he quit. He was asked whether he had any problems like this when he previously worked in Indonesia. He said he was not sure what was the standard office wage, but he had heard he was getting a lower wage. Also, when he worked there it was like his office work mates were close to each other but not to him. He said they were working in administration and exports, there were around ten workers in the office, and they were managed by a [boss]. He did not have any problems with his boss. He was asked if, besides the thought he was paid less and that most of his work mates were closer to each other than they were to him, he had any other concerns of this nature and he said no. He said Indonesians like to talk to each other and sometimes in competition to each other, and they try to find your weaknesses. He said he had seen on You Tube and from his father that anti-Arab feeling had been increasing. 

25. In his protection visa application and at the hearing he provided generally consistent information about his family, education, and employment history, and I accept those details as summarised in the background above. At the hearing he provided generally detailed and consistent information about his fears, based on his financial and family’s health situation, if returned to Indonesia. I accept that he is concerned about his ability to support himself as well as support his family, particularly his parents with their health problems, if he returns to Indonesia. I accept his family’s various health issues as discussed at the hearing and supported by the medical documents supplied by the applicant.

26. There was only one aspect of the applicant’s evidence that I consider unsatisfactory. He raised towards the end of the hearing that he was also concerned, if returned to Indonesia, that his half-Arab ethnicity may mean he face a more difficult work environment. This claim was somewhat general, and certainly lacked the level of detail he was able to provide in relation to his general financial concerns. In short, he said he thought he may have previously been paid less than his work mates when working in the office, and that those work mates were closer to each other than they were towards him. He also made a vague reference to an increase in anti-Arab feelings based on unspecified things he saw on YouTube and that his father had said so as well. His assertions in this regard were ultimately very general and lacking in detail, again in contrast to his other evidence. Additionally, I do not consider it credible that he raised this issue towards the end of the hearing, after he had already earlier confirmed he had no other fears if he were to return to Indonesia. I discussed with the applicant that he had only just mentioned his concerns about possible workplace difficulties based on his part-Arab ethnicity; that he did not raise these concerns prior to this point; it may raise credibility concerns about this claim; and asked if he had any comments. The applicant said he understood the point, it was just his thoughts about what he may face if he goes back, and as there were questions about his going back it came into his mind. The Tribunal did not find his response convincing. Further, country information does not suggest that those of Arab, or part-Arab ethnicity, face discrimination or other concerns in Indonesia.[1] I do not accept that the applicant previously experienced any workplace discrimination or disadvantage because of his part-Arab ethnicity. I am not satisfied there is a real chance he may suffer any disadvantage in his employment, or otherwise suffer any harm, due to his part-Arab ethnicity, if he returns to Indonesia, now or in the reasonably foreseeable future.     

    [1] DFAT, ‘DFAT Country Information Report Indonesia’, 24 July 2023; US Department of State, ‘2023 Country Reports on Human Rights Practices - Indonesia', 22 April 2024; 'State of the Worlds Human Rights 2024', Amnesty International, 23 April 2024; and ‘Human Rights Watch World Report 2024', Human Rights Watch, 11 January 2024

27. The applicant is concerned that, if returned to Indonesia, he would have difficulties in supporting himself as well as supporting his family, including his parents who are in poor health and require ongoing treatment.

28. DFAT reports that, according to the World Bank, Indonesia’s economy is the largest in Southeast Asia and sixteenth largest globally, measured by GDP. Indonesia saw year-on-year GDP growth of 5-6 per cent between 2010 and 2019 but fell in 2020 during the first year of the COVID-19 pandemic. The economy recovered in 2021, with 3.7 per cent GDP growth and strong indications of further growth in the years ahead. According to the International Monetary Fund, the economy grew 5.3 per cent in 2022, and projected growth of 5 per cent in 2023. Major industries include resources, agriculture, and manufacturing, with the services sector having an increasing impact on the economy. Poverty has more than halved since the turn of the century, with March 2022 data from Statistica Indonesia indicating the poverty rate as 7.5 per cent in urban areas and 12.29 per cent in rural areas. The unemployment rate was 5.8 per cent in August 2022. Many Indonesians work in the informal sector, including small and medium enterprises, as contractors or in the gig economy. Work is easily obtained in Jakarta and other big cities. Personal connections, through family, previous work or within one’s own ethnic group, are helpful but not essential for finding informal work.[2] The Constitution (Indonesia) recognises social protection as a basic human right and obliges the state to provide social protection to all citizens.[3] Indonesia has a public health insurance scheme that is accessed through a monthly premium for those on an income otherwise the government pays premiums for those who are unemployed or poor. Indonesians with an income have access to a public insurance scheme that offers accident, life, and a pension.[4] Those without an income or who are poor may be eligible to access welfare services such as cash payments, food cards or subsidies, education, and healthcare.[5] Gaps in the social protection system mainly affect elderly women and those who work in the informal sector.[6]  

    [2] DFAT, ‘DFAT Country Information Report Indonesia’, 24 July 2023.

    [3] 'Social Protection System Review of Indonesia', Organisation for Economic Co-operation and Development (OECD), 11 April 2019.

    [4] 'BTI 2022 Country Report - Indonesia', Bertelsmann Stiftung, 22 February 2022.

    [5] DFAT, 'DFAT Country Information Report - Indonesia ', 24 July 2023; and 'Social Protection System Review of Indonesia', OECD, 11 April 2019.

    [6] 'Social Protection System Review of Indonesia', OECD, 11 April 2019; and ‘How social protection can create a more equal Indonesia’, Asia & the Pacific Policy Society, 13 September 2022.

1. Based on the country information, I accept that if the applicant returns to Indonesia, he may face difficulty in initially finding employment and that any such employment is likely to be lower paid than his work in Australia. I also accept he will feel obliged to contribute to his family’s healthcare costs. When he previously lived in Indonesia he resided in Bogor. His father, his mother (together with one of his sisters) and his brother live in Bogor, although at different homes. He said at the hearing that if he returned to Indonesia, he would live for half his time with his father and for half his time with his mother. Given these factors, I find that, if he returns to Indonesia, he will return to live in Bogor at his parents’ homes. He also said at the hearing that his father, mother, and brother own their own homes in Bogor. The applicant worked as an [Occupation 1] and in an office when he was Indonesia. He has worked as [Occupations] in Australia. He is in his [age]. He speaks, reads, and writes Indonesian and English. He has shown himself to be resilient and resourceful by adapting to life in Australia. While I accept that he may face some difficulty in initially obtaining a job, and the job may be comparatively low paid by Australian standards, I am not satisfied on the evidence that the situation is such that his prospects are so limited that there is a real chance that he would be denied the capacity to earn a livelihood of any kind or experience hardship to the extent that would threaten his capacity to subsist or otherwise lead to serious harm. Additionally, the country information indicates the employment situation, and economic conditions, in Indonesia impact the population and the country generally. As such, I do not accept that any difficulties or hardship the applicant may face in obtaining employment, with the pay he receives for such employment, or any financial difficulties he experiences in contributing towards his family’s health care, would amount to persecution for any s 5J reason under the Act.    

2. Considering the findings set out above and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Indonesia now or in the foreseeable future, he faces a real chance of persecution.

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).

5. The country information indicates that the employment situation and economic conditions in Indonesia impact the country in general, rather than from an act or omission intended to cause pain or suffering that could reasonably be regarded as cruel or inhuman, severe pain or suffering or extreme humiliation as required by the relevant definitions of significant harm. I find on the evidence that any difficulties or hardship the applicant may experience in obtaining employment, the level of pay received, any financial difficulties he experiences in contributing towards his family’s health care and from his general financial situation in Indonesia, does not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment within the meaning of the Act. For the same reasons I find that there is not a real risk of the applicant being arbitrarily deprived of his life or the death penalty being carried out.

6. For the reasons set out above I have found that the applicant does not otherwise face a real chance of harm in relation to his claims or profile. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[7] he also does not face a real risk of any harm in Indonesia. I am not satisfied that the applicant faces a real risk of significant harm in Indonesia.

   [7] MIAC v SZQRB (2013) 210 FCR 505.

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

8. 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

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

   Mark Oakman
   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.

   …