1822091 (Refugee)

[2023] AATA 3988

1822091 (Refugee) [2023] AATA 3988 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Simon Jeans (MARN: 9253749)

CASE NUMBER:  1822091

COUNTRY OF REFERENCE:                   Uganda

MEMBER:Jane Marquard

DATE:22 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 22 August 2023 at 2:57pm

CATCHWORDS

REFUGEE – protection visa – Uganda – particular social group – male homosexuals – fear of detention – fear of killing – overstaying in Australia – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 417, 425, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

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

   BACKGROUND TO THE REVIEW

2. The applicant is a man from [Town 1] in Kampala, Uganda. He was born in [specified year].

3. The applicant first arrived in Australia [in] March 2018 on a [temporary] visa to [attend an event] held in [Australia]. He remained in Australia after the completion of the [event].

4. He applied to the Department for the protection visa on 14 May 2018. He claimed protection on the basis of being persecuted as a homosexual man in Uganda.

5. A delegate of the Department of Home Affairs (the Department) refused to grant the visa on 26 July 2018. The delegate did not accept that the applicant’s claims were credible and was not satisfied that he met the refugee or complementary protection criterion for the visa.

6. The applicant applied for review with the Administrative Appeals Tribunal (the Tribunal) on 31 July 2018. On 1 August 2018 the Tribunal wrote to the applicant to acknowledge the receipt of the application for review. The applicant was invited to provide material or written arguments in support of the review as soon as possible. No further material was provided. On 28 June 2023 the Tribunal wrote to the applicant to notify him that his matter was being prepared for allocation to a Tribunal Member, and he was invited to provide any additional evidence. No further material was received by the Tribunal.

7. On 12 July 2023 the Tribunal invited the applicant to appear at a hearing on 7 August 2023.

8. In a letter to the Tribunal from the applicant’s representative, Mr Simon Jeans, dated 27 July 2023, the Tribunal was requested to make a decision on the review without a hearing. The Tribunal was notified that the applicant intends making a request to the Minister for Home Affairs under s 417 of the Act. This provision allows the Minister in his or her discretion to make a decision more favourable than a decision made by the Tribunal, where there are unique or exceptional circumstances.

9. As the applicant consented to a determination of the matter without a hearing, the Tribunal proceeded to cancel the scheduled hearing and has made a decision on the papers in accordance with s 425(2)(b) of the Act.

   RELEVANT LAW AND PRINCIPLES

10. The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

    [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

11. Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]

    [2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).

    [3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

    [4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.

12. 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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

13. 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.

14. 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.

15. 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).

16. 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–5LA, which are extracted in the attachment to this decision.

17. 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

18. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Responsibility of applicant to specify particulars and provide evidence

19. 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 of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.

    EVIDENCE CONSIDERED IN THIS REVIEW

20. The Tribunal has taken into consideration the evidence in the Department files including the application and supporting documents, as well as the letter from the applicant’s representative dated 27 July 2023 to this Tribunal.

21. No Tribunal hearing was held in this matter as the applicant consented to the matter being determined on the papers before it (s 425(2)(b) of the Act).

22. The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[5]

    FINDINGS

    [5] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

    Nationality

23. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

24. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

25. The applicant had a Ugandan passport issued in 2012, which expired in 2022. The Tribunal is satisfied based on the applicant’s passport and details provided in his application that the applicant is a national of Uganda, and that Uganda is the receiving country for the purposes of the legislation.

    Findings about the applicant’s background and personal particulars

26. The Tribunal accepts the following information about the applicant’s background and personal particulars as there is no reason to doubt this evidence.

27. The applicant was born in [Town 1], Kampala, Uganda. Prior to travelling to Australia, he was living in [Town 2], Uganda.

28. The applicant speaks English and Swahili. His religion is Islam.

29. The applicant’s parents have passed away. His [specified family members] live in Uganda. He also has a son from a previous relationship, who also resides in Uganda.

30. The applicant was [an occupation 1] in Uganda. News articles were provided to corroborate this. He travelled to Australia to [attend an event] held in [Australia].

    Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

31. 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.[6]

    [6] Section 5H(1) of the Act.

32. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

33. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·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 above; and

    ·the real chance of persecution relates to all areas of a receiving country.

34. The Tribunal has considered whether there is a real chance that if the applicant returned to Uganda he would be persecuted for one of the reasons in the legislation. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept;[7] not only must a person fear persecution, there must also be a prospect of that fear being realised.

    [7] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>

    The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[8]

    [8] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

35. In his application for the visa, the applicant outlined his reasons for leaving Uganda as follows:

    I left my country to [attend an event in a delegation]. Whilst I was in a relationship with my defacto partner, (x), the relationship had been maintained in secret prior to the arrival in Australia for one year and 3 months.

    I travelled to Australia with my defacto partner who was also [an occupation 1]. We had no intentions of anyone ever finding out about our relationship. We had planned to keep our relationship a secret and return to Uganda. We were aware of the consequences of being gay in Uganda and as such had never planned to make the relationship public and return to Uganda.

    [In] April 2018 (x)and I were having sexual intercourse in our room in [the specified accommodation]. Our [colleague] walked into our room which had the door closed and witnessed us having sexual intercourse. He expressed his anger and disgust and we begged him to keep it secret.

    He immediately told our [manager] who expressed his disgust and anger. He expressed my acts were one of evil and that we should be killed. He advised I had performed satanic acts and we would be killed when we returned to Uganda. He took my passport and would not return it. He advised he took my passport to prevent me from running away. He planned to give it to authorities so we would be immediately arrested upon return. He has now returned to Uganda and has given our passports to the authorities. He has made it public that we have performed homosexual acts and should be killed. He has told me family who have now exiled me from the clan and advised that they will kill me upon my return.

    A [local staff member] heard the screaming argument and threats of our [manager]. She held us flee the [accommodation] and gave us refuge in her home. She bought us tickets to Adelaide by bus and we left [the accommodation] to flee from our [delegation] and [manager] who were threatening harm. We are aware they have now returned to Uganda and advised the authorities and handed in our passports for immediate arrest.

    I have lost my family, friends and professional [career] as they have made my relationship public. I had no intentions to make my relationship public as I was aware of the consequences. I am also aware that my case has been made public on the internet which Ugandan authorities have access to. I will be seen to have brought s[h]ame to my country.

36. The applicant provided photographs of himself and his [colleague] to the Department. He reiterated his claims at an interview with a delegate of the Department. He claimed that he feared returning to Uganda because he would be persecuted as a gay man. He referred to criminalisation of same sex behaviour pursuant to the Anti Homosexuality Act 2014. He said that he feared that he would be subject to arrest, imprisonment, life imprisonment or the death penalty. He claimed to fear the authorities and also his family and friends who had exiled and threatened him.

37. In a letter to the Tribunal from the applicant’s representative dated 27 July 2023 it was stated:

    We refer to the above matter set down for hearing on 7 August 2023.

    We are instructed to request the Tribunal proceed to make a decision without a hearing. The applicant understands this means the decision under review will be affirmed.

    The applicant accepts the claims advanced in his application were not correct and they are withdrawn. While he has some concerns about the attitude of the government of Uganda, not having returned after [attending the event], he accepts the prospects of any harm are remote.

    The applicant intends making a request to the Minister for Immigration, Citizenship and Multicultural Affairs under s.417 of the Migration Act 1958.

38. In the letter from the applicant’s representative dated 27 July 2023, it is stated that the claims advanced in the application to the Department ‘were not correct’ and were withdrawn. Based on this notification, the Tribunal is not satisfied that the applicant is a homosexual man or that he was in a secret homosexual relationship with a [colleague] for one year and three months prior to travelling to Australia. The Tribunal is also not satisfied that another [colleague] discovered them having sexual intercourse in April 2018. The Tribunal is not satisfied that the [colleague] informed the [manager] who was disgusted, took away the applicant’s passport and informed the authorities. The Tribunal is also not satisfied that the applicant received death threats from family, and that they exiled him because of his sexual orientation. The Tribunal is not satisfied about these claims because the Tribunal has been notified by the applicant’s representative that these claims are not correct and are withdrawn.

39. As the Tribunal does not accept that the applicant is a homosexual man, the Tribunal is also not satisfied that there is a real chance of serious harm from the authorities or from family or community members if the applicant were to return to Uganda in the reasonably foreseeable future for reasons of his sexual orientation. The Tribunal is not satisfied that there is a real chance that he would be arrested, killed or otherwise harmed.

40. The applicant’s representative stated in the letter dated 27 July 2023 that the applicant ‘has some concerns about the attitude of the government of Uganda, not having returned after [attending the event]’. However, he concedes that ‘the prospects of any harm are remote.’ The Tribunal notes that the applicant, while having some concerns about the attitude of the government to persons who [fail to return after an event], does not suggest that there is a real chance of serious harm, acknowledging that the chance of harm is remote. The concept of ‘real chance’ was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility. The Tribunal is not satisfied therefore that there is a real chance of serious harm from the authorities were the applicant to return to Uganda for reasons of his political opinion or as a member of a particular social group of ‘returnee asylum seekers’ or [event participants delaying their return] or any other similar group.

1. The Tribunal notes that the applicant’s representative confirmed that the applicant is aware that the decision of the Department will be affirmed by the Tribunal.

2. No other claims have been advanced by the applicant.

3. The Tribunal is not satisfied for the reasons set out above that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.

   Does the applicant meet the complementary protection criterion?

4. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).

5. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.

6. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Convention definition: MIAC v SZQRB [2013] FCAFC 33.

7. The applicant’s representative in the letter dated 27 July 2023 confirmed that the claims made in the application are not correct and are withdrawn. On this basis the Tribunal is not satisfied that there is a real chance of serious harm for this applicant based on sexual orientation were the applicant to return to Uganda in the reasonably foreseeable future. For reasons set out earlier, the Tribunal is also not satisfied that there is a real chance of serious harm for any other reason. For the same reasons, on the basis of the reasoning in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation. The Tribunal notes that the applicant’s representative has confirmed that the applicant is aware that the decision in this matter will be affirmed.

8. The Tribunal is not satisfied for the reasons set out above that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Uganda there is a real risk of significant harm.

   Ministerial intervention

9. The representative notified the Tribunal that the applicant intends making a request to the Minister for Immigration, Citizenship and Multicultural Affairs for exercise of ministerial discretion under s 417 of the Act.

   CONCLUDING PARAGRAPHS

10. 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).

11. 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).

12. 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 criteria in s 36(2).

    DECISION

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

    Jane Marquard
    Member

    
    

    ATTACHMENT A – 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.

    …