1825403 (Refugee)

[2022] AATA 3633

1825403 (Refugee) [2022] AATA 3633 (7 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Samantha Smith (MARN: 1807936)

CASE NUMBER:  1825403

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Paul Noonan

DATE:7 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 7 July 2022 at 9.00am

CATCHWORDS  
REFUGEE – protection visa – Iraq – particular social group – a returnee from the West who has not resided in Iraq since being an infant – accent – English language tattoos – cultural unfamiliarity – ‘all areas of the receiving country’ – father’s tribal area – ongoing drug usage – psychological issues – state protection – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 5LA, 36, 65 
Migration Regulations 1994 (Cth), Schedule 2 

CASES 
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644

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 30 August 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 Iraq, applied for the visa on 10 October 2017. The delegate refused to grant the visa on the basis that the applicant’s fear of harm should he be required to return to Iraq is not well founded and there is not a real chance of significant harm to the applicant should he return to Iraq. The delegate was satisfied that the applicant’s country of nationality is Iraq and the Tribunal is also satisfied, on the basis of the biodata with respect to his Iraqi passport, a copy of which is retained on the Department’s systems and file, and accordingly has assessed his claims with respect to Iraq, as the country of reference or receiving country for the purposes of this appeal.

3. The applicant appeared before the Tribunal on 8 June 2022 to give evidence and present arguments. The hearing was conducted by video conference with the applicant from his point of current Australian incarceration. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The interpreter was only required to translate evidence from the applicant’s witness being his father.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing in person. In addition the applicant’s father [Mr A] and his brother [Mr B] attended the hearing in person and gave evidence.

   Criteria for a protection visa

5. 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.

6. 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.

7. 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).

8. 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.

9. 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.

10. Even if the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer persecution, he or she may be ineligible for a protection visa by operation of s 36(1C). Section 36(1C) provides that an applicant is taken not to satisfy the criterion in s 36(2)(a) where the Minister considers, on reasonable grounds that the applicant is a danger to Australia’s security or, having been judged by a final judgment of a particularly serious crime, is a danger to the Australian community. However, the Migration and Refugee Division of this Tribunal, considering an application for review of a decision to refuse or cancel a protection visa under Part 7 of the Act, has no power to determine s 36(1C) issues: ss 411(c) and (d).

    Mandatory considerations

11. 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.

    Procedural history

12. The applicant first arrived in Australia [in] July 1998 as a [age]-year-old child on a humanitarian visa with his Iraqi family. He has not left Australia since then.  On 7 March 2012 the applicant was sent a notice of intention to cancel his humanitarian visa under s 501(2). On 18 April 2012 the delegate decided not to cancel but sent the applicant a formal warning letter. On 3 May 2012 the applicant acknowledged this formal warning letter. On 28 August 2015 the applicant’s humanitarian visa was cancelled under s 501(3). The applicant was placed in immigration detention on 1 1 September 2015.  On 23 October 2015 the applicant was returned to criminal custody and he was granted a Bridging Visa. This visa ceased on 23 October 2016. On 7 March 2017 the cancellation was set aside however was reinstated on 18 May 2017. The applicant lodged an application for protection on 11 May 2018.

13. The applicant was interviewed by the delegate on 29 May 2018. The applicant remains in criminal custody. For the purposes of his application to the Tribunal the applicant provided a copy of the delegate’s decision.

    CONSIDERATION OF Claims and evidence

14. The applicant made the following pertinent disclosures with respect to his background and profile in his written claim for protection. He was born on [date] in Nasiriyah,  Dhi Qar, Iraq. He disclosed that he speaks, reads and writes English and speaks Arabic but cannot read or write Arabic. His religion is Shia Muslim. He is married to an Australian citizen and his parents and four siblings all reside in Australia. In addition to his current criminal custody he was also in criminal custody from June 2005 to November 2008, from September 2010 to August 2013 and from December 2014 to March 2015.

15. In his written claims for protection the applicant made the following claims (in summary) with respect to fearing persecution should he be required to return to Iraq as follows:

    ·He fears he will be harmed because he has married a Sunni woman and he is a Shia. The head of his father’s tribe has rejected the possibility of him returning to Iraq for this reason.

16. The delegate was satisfied that the applicant’s evidence with respect to the claimed rejection by his father’s tribe was not credible and as such should he be required to return to Iraq he would enjoy tribal protection and would not be subject to harm. Further the applicant’s subsequently introduced claim to fear harm from a former work colleague of his father’s while potentially credible was not a well-founded fear of harm as the applicant could access effective state and third-party protection should he require it. With respect to the applicant’s representative’s subsequently introduced claim that the applicant fears harm as a returnee from the West the delegate found that, as the applicant’s father had returned to Iraq in 2005 for a period of time without harm the applicant would also be able to do so and enjoy the protection of his tribe. In addition, the delegate found that the applicant’s subsequently introduced claim to fear harm due to forced separation from his wife and son does not constitute serious harm and as they are Australian citizens, they can choose whether to move to Iraq or not.

17. The Tribunal discussed the applicant’s personal history at the commencement of the hearing. It is undisputed that the applicant has an extensive criminal history in Australia and history of length periods of incarceration. The applicant noted that he had an extensive problem with amphetamine use which he submitted he had lately overcome. He stated that he is not religious and submitted that, while he considered himself Muslim, he did not really know much about the religion. He does not speak Arabic that well. He submitted he has been clean of drugs since being last placed into prison in 2015. The Tribunal noted that the applicant appears to have extensive tattoos, which the applicant then proceeded to show the Tribunal. He said he had obtained these when he was younger. The Tribunal noted extensive English language tattoos on the applicant’s arms. The applicant confirmed that he has lived his entire life in Australia apart from a short period as an infant. He did not return to Iraq when his father returned there and was involved in drugs and crime in Australia at that stage. The Tribunal notes that the applicant spoke English with a strong Australian accent. The applicant informed the Tribunal that he is on a mental health plan but is not currently taking any medication. The applicant stated that he would not know what to do in Iraq and fears he would be targeted for kidnapping, extortion, and violent crime as a Western man.

18. During the course of taking evidence from the applicant the Tribunal formed the view that he knew very little about Iraq. Indeed, at several stages the applicant stated that he did not really know what the situation was there at all and stated that he really just relied on what his father told him about Iraq. The Tribunal noted that the delegate had found the video professing to state that his father’s tribe was unwilling to accept him was not credible. The applicant stated that he did not know much about it and had not viewed it and had just been told it was a video from his father’s tribe. Equally he does not have any personal knowledge of his father’s business affairs in Iraq or his dealings with his tribe or his wife’s tribe. Everything he understands about these issues is based upon what his father told him. The Tribunal has carefully considered the applicant’s claims about his fear with respect to marrying a Sunni woman and his father’s business dealings and had regard to his and the witness’s evidence with respect to these claims and the claims themselves. It is however not necessary to set out the Tribunal’s findings with respect to these claims as the Tribunal has found that the applicant is a refugee based on the claim that he is a member of the particular social group “a returnee from the West who has not resided in Iraq since being an infant”. The Tribunal considers this claim in detail below.

19. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal is satisfied that the applicant is a member of a particular social group, as per the requirements of s 5L of the Act. The group is defined by the Tribunal as having characteristics innate and fundamental to their member’s identity being “a returnee from the West who has not resided in Iraq since being an infant” and the characteristic is clearly not a fear of persecution and considers the current country information reflects that a member of this particular social group is entitled to Australia’s protection for the following reasons.

20. DFAT in its current travel advisory for Iraq, as at 30 June 2022[1], states as follows:

    [1] Iraq Travel Advice & Safety | Smartraveller (accessed 30 June 2022)

    ·We’ve reviewed our advice for Iraq. We haven’t changed the level of our advice, do not travel to Iraq. The security situation there remains volatile. There’s a risk the security situation could deteriorate further. Due to the volatile security environment and the ongoing threat of kidnappings, you should leave Iraq immediately by commercial means if it is safe to do so.

    ·There's a very high, ongoing threat of kidnapping.

    Sources report that terrorists and criminal groups continue to look for opportunities to kidnap Westerners throughout Iraq. Kidnappers have targeted:

    ·     academics

    ·     journalists

    ·     people working for NGOs

    ·     people working for foreign companies

    Criminal gangs and terrorists demand large ransoms for releasing hostages. Ransom payments to terrorist groups are likely to breach Australian anti-terrorism financing laws.
    The Australian Government's longstanding policy is that it doesn't make payments or concessions to kidnappers.

    • The security situation is unstable and could deteriorate further with little warning. You should leave immediately by commercial means if it's safe to do so. If you decide to travel to or stay in Iraq despite our advice, get professional security advice.
    • There’s a very high, ongoing risk of kidnapping. Terrorists and criminal gangs may kidnap expats working in Iraq. Academics, journalists and aid workers are at particular risk.
    • Large, coordinated attacks by armed groups have resulted in death and injury. Terrorist attacks occur without warning. Avoid possible targets such as crowded places and public spaces, including markets, transport hubs, places of worship and government facilities. If you must visit them, always have an exit plan.
    • Attacks using improvised explosive devices (IEDs) occur in many areas of the country, including Baghdad.
    • Political rallies and protests often happen in Baghdad and other regions of Iraq. These grow quickly and can turn violent. Avoid large public gatherings. If you're caught in an affected area, stay indoors. Follow the advice of local authorities or your security provider.
    • Violent crime and corruption are common. Crime includes kidnapping, murder and robbery. Organised criminal gangs, militia and tribal groups are significant threats. If you decide to travel to or stay in Iraq despite our advice, travel with your vehicle doors locked and windows up. Secure your accommodation against intruders.

21. The Tribunal notes and has considered the latest DFAT Country Information Report about Iraq which sets out that large numbers of dual nationals from the West do return to Iraq and resettle in their communities.[2] However, the distinction in this case is that the applicant is not returning as a person at all familiar with Iraqi culture or who is returning to reassimilate in any way. The applicant is clearly identifiable as a Western man by his accent and appearance with English language tattoos, halting Arabic and general cultural unfamiliarity. The Tribunal considers that there is simply no guarantee that pleadings from the applicant’s father for patronage from his tribe would be heeded in the face of such cultural discord, especially if this is accompanied by problematic behavioural issues associated with drug addiction as reflected in his continual incarceration in Australia. Further the country travel advice clearly reflects that, from the moment the applicant arrives in Iraq, he will be at extensive risk of being identified as a Westerner and targeted for kidnapping and other forms of violent crime. As such there is no guarantee that he would even be able to reach the area of his father’s tribe in the south of Iraq and as noted above his fate there would remain highly uncertain in the Tribunal’s view.

    [2] DFAT Country Information Report – Iraq, 17 August 2020, p.64

22. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

23. Given the above country information, and the accepted profile of the applicant, the Tribunal finds that there is a real chance that, in the reasonably foreseeable future, the applicant will be subjected to serious harm in the form of targeted kidnapping and other forms of violent crime for reason of his membership of the particular social group “a returnee from the West who has not resided in Iraq since being an infant”. The Tribunal is also satisfied, from the evidence of the applicant given at hearing, that this fear of harm is subjectively held by him.

24. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

25. The Tribunal has carefully considered the reasoning of the delegate that the applicant’s father was able to safely return to his tribal area and that as such the applicant would also enjoy the tribe’s protection. The Tribunal is not satisfied that the tribe would or could guarantee protection to the applicant given his profile as a Western man with English language tattoos and his potentially ongoing drug usage and associated psychological issues. The applicant would, even in the applicant’s father’s tribe’s area, remain a clear potential target for targeted or opportunistic crime such as kidnapping or violent robbery or assault given the country information relevant to a person of his particular social group. As the Tribunal is not satisfied on this point it finds that the real chance of persecution relates to all areas of the country.

1. The Tribunal finds that the applicant’s membership of the particular social group of “a returnee from the West who has not resided in Iraq since being an infant” is the essential and significant reason for the persecution as per s 5J(4)(a), that the harm feared constitutes serious harm as per s 5J(4)(b) and that it would be as a result of systematic and discriminatory conduct against the applicant as per s 5J(4)(c).

2. The Tribunal must also consider the issue of state protection and whether the applicant is unable or unwilling to avail themselves of the protection of the Iraqi authorities. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

3. In general the police in Iraq are assessed as engaging in significant levels of corruption, and abuse of people in detention is frequent.[3]  Popular Mobilisation Forces, which are local militias that often step in above the police, also engage extensively in corruption, killing, kidnapping and extortion throughout the country.[4] Human rights groups have consistently raised concerns that impunity for abuses committed by security authorities and other official bodies remains the norm. All state protection institutions are significantly subject to and affected by Corruption, particularly the police.[5] Given this country information with respect to the state of the authorities the Tribunal finds that the State does not offer an appropriate criminal law, a reasonably effective police force and an impartial judicial system and as such the State is not taken to offer protection against persecution. Accordingly, the applicant’s fear of persecution is well-founded.

   [3] DFAT Country Information Report, p.58-59

   [4] Ibid, p.58

   [5] Ibid, p.56

4. The Tribunal must also consider whether the exception contained in s 5J(3) applies to the applicant, that is whether he could take reasonable steps to modify his behaviour so as to avoid persecution. His appearance, cultural unfamiliarity, language and accent are innate and immutable characteristics and as such fall within the exception to s 5J(3) set out at s 5(J)(3)(b).   

5. Finally, there is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside, whether temporarily or permanently, in any country apart from Iraq and as such the exception with respect to third country protection contained at s 36(3) does not apply.

   Conclusion

6. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

7. The Tribunal notes that the material before it may give rise to issues relating to s 36(1C) of the Act. The Migration and Refugee Division of this Tribunal, in considering an application for review of a decision to refuse or cancel a protection visa, has no power to consider s 36(1C) issues. Accordingly, the matter will be remitted to the Department for reconsideration, including consideration as to whether the applicant is ineligible for the grant of a protection visa by s 36(1C).

   decision

8. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   Paul Noonan
   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.

   …