Evidence
Evidence Before The Court
The issue in this case is whether any applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether any applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment. CLAIMS AND EVIDENCEClaims and evidence provided to the DepartmentProtection visa application According to information contained in the protection visa application form that was completed by the applicant on 3 November 2017, the applicant is a [Age]-year-old Bangladeshi national who: · was born in Dhaka, Bangladesh.· married the second named applicant on [Date].· has the following family members in Bangladesh:o [Ms A], the applicant’s mother ([DOB])o [Mr B], the applicant’s brother ([DOB])o [Mr C], the applicant’s brother ([DOB])o [Ms D], the applicant’s sister (DOB was not provided)o [Ms E], the applicant’s sister (DOB was not provided).· lived at the following addresses prior to travelling to Australia:o [Address 1], [Thana/sub-district], Dhaka, Bangladesho [Address 2], [Sub-district], Dhaka, Bangladesho [Address 3] [Sub-district] Dhaka, Bangladesh. In relation to his claims for protection, the applicant made a statutory declaration on 2 November 2017 in which the following claims were raised:Profile as a BNP supporter, financial contributor and anti-Awami League activist· He is a political activist and supports the Bangladesh Nationalist Party (BNP). He supported the BNP from a young age through political activities and financial contributions. He gradually became ‘a known BNP cadre in the eyes of the Awami League’ because he:osupported [Mr E] when he contested the national election in 2008 by organising meetings and providing financial contributions for banners and leaflets. oattended programs and meetings organised by [Mr F] who was the [Branch] President of the BNP;osupported [Mr G], the BNP candidate who contested the April 2015 City Corporation Election, by campaigning door to door and providing financial contributions to prepare banners, meetings and leaflets.Profile as a wealthy businessman· He has a considerable business profile in Dhaka, Bangladesh and is perceived to be a wealthy businessman. After completing his studies, he initially looked after his brother’s business. He then started his own business, [Business name 1], in Dhaka. As his business grew, he became of interest to the ruling Awami League (AL).Intimidation, threats and extortion· He was targeted, intimated and threatened by the AL ‘due to [his] political opinion and forced to provide financial contribution to the Awami League and its affiliated criminal gang’. After he and his wife were married in [Year], his wife received telephone calls demanding money. The demands for money and extortion threats grew during 2016 as the AL sought to raise funds for its next national election campaign. These threats and extortion were particularised as follows:o[Mr H]’s gang demanded BDT[1] 1 million from him. He paid the amount on 18 February 2016.[1] BDT is the acronym for the currency Bangladeshi TakaoThe gang demanded a further BDT 1.2 million. He paid that amount to them on 17 October 2016.oIn early December 2016, the gang demanded a further BDT 1.5 million. He could not make the payment. The gang became angry and threatened him. They also warned him not to make any further financial contributions to the BNP or engage in political activities for them. Despite the threats he continued to support the BNP and did not stop his political activities.oOn 27 December 2016 at around 11am, he was attacked on the way to his business by 10-12 people from [Mr H]’s gang. The gang insisted he pay the BDT 1.5 million they had demanded in early December 2016. As he pleaded for more time, he was hit with an iron rod and sustained injuries. He was admitted to hospital after the attack and treated for his injuries.oIn February 2017, the gang demanded he BDT 5 million. To avoid harm, he told them he would organise the payment by selling village properties that he owned because he could not raise that amount from his business.oIn June 2017, the gang demanded he pay BDT 1 million by 15 August 2017.Reasons for leaving Bangladesh· As a result of his fear of ongoing extortion from the gang and possible abduction of his family members for ransom, he and his family applied for an Australian visitor visa in July 2017. They left their house in Dhaka and went to stay in his village. The Australian visitor visas were granted on 18 August 2017 but, due to poor internet coverage and access in his village, he eventually found out about the visa approvals on 28 August 2017.· He and his family were unable to depart Bangladesh for Australia until [October] 2017 as his wife was suffering mental health issues and required treatment.Fear of harm if the applicants return to Bangladesh· As a result of his business profile and political activities, if he returns to Bangladesh, he and his family will face a real risk of harm, including ‘torture, degrading, inhumane and cruel treatment; abduction; extortion; or murder’.Absence of effective protection from the Bangladeshi authorities· The applicant and his family are unable to obtain protection in Bangladesh as the AL are in power and have a close and direct link with the Bangladesh authorities.Relocation not an option· The applicant and his family are unable to relocate within Bangladesh because:o he intends to continue to support the BNP;o his wife and child would be vulnerable targets for extortion, abduction and possibly sexual abuse by the AL because of his political opinion; ando there are practical difficulties in relocating with a young family.
Decision
Reasons for decision
For the above reasons, the Tribunal is satisfied that there is a real chance that the applicant will suffer serious harm from AL party activists, the state and/or its security forces, including possible arrest and physical violence because he supports the BNP and actively opposes the current government. The Tribunal observes that similar reasoning was applied by the Tribunal in case number 1836961[29] where Member Flood considered claims comparable to those in the present case in relation to an applicant who was assisted by the representative in the present case. [29] 1836961 (Refugee) [2023] AATA 1234 (15 March 2023), accessible at >Various reports and news articles including DFAT’s latest country information report indicate that the AL uses the state machinery against its political opponents and reveal that the security forces have been active in arresting and detaining BNP members and activists, preventing them from expressing their political opinions and participating in activities which are seen to be anti-government.In Bangladesh, ruling parties, both the AL and the BNP, and their affiliated organisations control state machinery and exploit it to supress their opposition while in office. The police and Rapid Action Battalion (RAB) are lead agencies in targeting political opponents, operating with impunity.[30] An August 2021 Human Rights Watch report on enforced disappearances in Bangladesh found credible and consistent evidence that Bangladesh security forces routinely commit enforced disappearances, and human rights organisations in the country assess that the RAB is responsible for more enforced disappearances than any other unit.[31] On 10 December 2021, the US government imposed sanctions on the RAB and several of its former officials in response to credible allegations of serious human rights abuses including extrajudicial killings, torture, and enforced disappearances.[32] The AL also uses the courts and legal processes to suppress opponents including through laying fictitious charges against AL opponents.[33][30] BTI 2022 Country Information Report: Bangladesh, Bertelsmann Stiftung, 23 February 2022[31] Bangladesh: 86 victims of Enforced Disappearance Still Missing, Human Rights Watch 16 August 2021[32] Bangladesh: Stop Reprisals Against Victims, Activists, Human Rights Watch, 7 April 2022; UN: Ban Abusive Bangladesh Unit from Peacekeeping, Human Rights Watch 20 January 2022[33] Democracy decaying in Bangladesh, East Asia Forum 6 March 2018In light of the country information discussed above, the Tribunal is satisfied that effective protection measures will not be available to the applicant in Bangladesh against the harm he fears on account of his political opinion. The Tribunal is also satisfied that the harm the applicant fears relates to all areas of the country and that relocation within Bangladesh will not offer the applicant protection from the harm he is likely to face on return to Bangladesh.For these reasons the Tribunal is satisfied that there is a real chance the applicant will suffer serious harm if he returns to Bangladesh now or in the reasonably foreseeable future for reason of his political opinion. Therefore, the Tribunal finds the applicant has a well-founded fear of persecution in Bangladesh and satisfies the criterion set out in s 36(2)(a) of the Act.Section 36(3) provides that Australia is taken not to have protection obligations to non- citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. Based on the information before it, the Tribunal is satisfied that the applicant does not have a right to enter or reside in a third country.Finally, the Tribunal acknowledges the Memorandum of Advice from [Mr AA] dated 5 September 2023 setting out his advice in relation to ‘the proper approach to compile a proof of evidence for a witness. The Tribunal does not seek to cavil with the matters raised therein but draws to the representative’s attention that it has a Practice Direction geared towards organising evidence and submissions in a manner that facilitates the Tribunal managing cases expeditiously and in line with its other objectives specified within s 2A of the Administrative Appeals Tribunal Act 1975. The Tribunal observes that there is a distinction between evidence, which in this case consists of the particulars of the applicant’s claims, and legal submissions which are made for the purposes of explaining how that evidence satisfies the relevant criteria. In this case, the Tribunal observes that a blurring of this distinction has meant that the Tribunal needed to perform additional work in order to discharge its decision-making task. ConclusionFor 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).Claims have been obliquely raised in relation to the applicants being at risk of gender-based violence in Bangladesh as a result of the applicant’s proposed political activities and profile. These claims were not vigorously pursued at hearing and there is a paucity of material before the Tribunal to enable it to make a positive finding in that regard. Accordingly, the Tribunal is not satisfied that they are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the spouse of the applicant and that the third named applicant is the child of the applicant. The Tribunal is satisfied that they are members of the same family unit as the applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.DECISIONThe Tribunal remits the matter for reconsideration with the following directions:(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and (ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.Peter PapadopoulosMemberAttachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958The relevant law 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.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).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 below.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 below.Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouses, de facto partners and dependent children.Mandatory considerationsIn 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.Extract of key provisions of the Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
The Tribunal remits the matter for reconsideration with the following directions:(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and (ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.Peter PapadopoulosMemberAttachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958The relevant law 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.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).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 below.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 below.Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouses, de facto partners and dependent children.Mandatory considerationsIn 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.Extract of key provisions of the Migration Act 19585 (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 familyFor 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 familyFor 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.…