1906441 (Refugee)

[2023] AATA 349

1906441 (Refugee) [2023] AATA 349 (18 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906441

COUNTRY OF REFERENCE:                   Saudi Arabia

MEMBER:Nora Lamont

DATE:18 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the first named applicant satisfies s 36(2)(a) of the Migration Act. The Tribunal affirms the decision not to grant the secondary applicant a protection visa.

Statement made on 18 January 2023 at 5:40am

CATCHWORDS
REFUGEE – protection visa – Saudi Arabia – religion and membership of particular social group – non-Muslim and bisexual woman with no male guardian – fear of harm from family, ex-husbands and authorities – abusive marriages from young age – deafness and mental health – inconsistent and confusing claims and evidence – country information – member of family unit – secondary applicant child in state care and granted child visa – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

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 February 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.   

The applicant who claims to be citizens of Saudi Arabia, applied for the visas on

24 September 2015.

3.    The applicant appeared before the Tribunal on 10 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s fiancé who was also acting as her representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

[Applicant #2]

4.    The secondary applicant is the daughter of the primary applicant. Prior to the hearing the Tribunal was notified that the secondary applicant was removed from the care of her mother and is under state protection. A Child Visa (Subclass 802) was granted to the secondary applicant and therefore as she is a permanent resident the Tribunal has affirmed the decision not to grant the applicant a protection visa.

5.    The issues in this case are whether Australia has protection obligations with respect to the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Criteria for a protection visa

6.    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.

7. 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.

1. 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).

2. 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.

3. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

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

CONSIDERATION OF Claims and evidence

1. The applicant is a [Age]-year-old female from Taif in the Kingdom of Saudi Arabia. She has [children] in Saudi Arabia and one daughter in Australia. She works in [job task] at [Employer], she is deaf in one ear and suffers from bi-polar. She is currently engaged, and her daughter is under the care of the state, but the applicant sees her daughter and wishes to be reunited in the future.

2. The applicant provided evidence of her nationality to the Department and the Tribunal and claims to be a national of Saudi Arabia. On this basis and given that the delegate had no concerns about the applicant’s claimed identity or nationality, the Tribunal accepts that the applicant is a national of the Kingdom of Saudi Arabia and has assessed her protection claims accordingly.

Submissions

1. The Tribunal had the following submissions before it: [1]

   [1] AAT Folio

• Audiology determination that the applicant is deaf in [one] ear and has partial hearing in [the other] ear.

• Letter from the applicant’s fiancé.

• Letter from the applicant.

• Letter from [Ms A] Domestic and Family Violence Specialist.

• Application for a Protection order against ex-husband.

• News article about a custody issue in Saudi Arabia.

• News article about three young Saudi’s who spoke out on social media and disappeared.

• News article about the Saudi government issued new conditions for marriages with foreigners.

• Letter from [Dr B] Psychiatrist at [Mental Health Services 1].

• Letter from [Mental Health service 2] about the applicant.

• Letter from [Dr. C] Consultant Psychiatrist [Mental Health service 2].

• Fatwa and other documents related to Saudi marriages.

• Letter from [Mr D] Clinical psychologist.

• Letter from [Ms E] Recovery Support Worker, [Organisation] Queensland.

• Child Protection Order.  

• Letter from [Ms F], [Office], Youth Justice and Multicultural Affairs.

• Department decision.

• Departmental File.

Claims

1. In summary the applicant claims to fear persecution at the hands of her family, the Saudi government, her ex-husbands and their associates as a member of a particular social group women in Saudi Arabia, for her non-religious views and anti-Islamic views, and her practice of Christianity, and for being bisexual.

2. The applicant’s claims as written in her protection visa application and in her interview and at the Tribunal hearing are summarised as follows: [2]

   [2] AAT Folio & [Reference] - 600584436

• She was forced to get married at the age of [Age] and developed psychological issues.

• She suffered nightly beatings, she was burnt and had her teeth shattered. She was striped and shamed in front of the neighbours.

• Her brother took her to Taif to get divorced.

• She was jailed for practising witchcraft and not practising Islam and throwing the Koran into the toilet. She spent 6 months in jail. She was sentenced to die by beheading, but her friend bribed them to let her go.

• She married her friend named [Mr F] and she became pregnant. She still has warrants out for her arrest.

• For three years she was harassed.

• She applied for protection and divorced [Mr F]. His family would take her if she was to return to the Kingdom of Saudi Arabia.

• The applicant does not claim to be a Muslim. She put the Koran in the toilet.

• In her Departmental interview in 2018 she made the following claims:

• She is a lesbian and lives with her girlfriend. She had a relationship with a woman in Saudi Arabia.

• She is a catholic and her daughter attends a catholic school.

• Her ex-husband [Mr F] abused her, and she has a protection order against him.

At the Tribunal hearing the applicant claimed the following:

• A man named [Mr G] has been stalking her and taking videos of her.

• Her mother was a vicious woman, and her father pushed her brother off a building causing significant injuries.

• Her parents have disowned her.

Tribunal Hearing

1. The applicant asked for an interpreter, but she spoke perfect English, so it was not necessary to use the interpreter. As the applicant has severe mental health issues, I was aware of the way we interacted and was aware that some of her experiences were extremely painful to talk about. I did refer to the guidelines on Vulnerable Persons in my questioning and the manner in which I conducted the hearing. [3]

   [3] Migration and Refugee Division Guidelines on Vulnerable Persons November 2018

2. She spoke of her first husband, and he was extremely vicious and very violent. She was underage and her father had to get a license from the government, and she was married at age [Age]. She finally got a divorce from him when he divorced her in front of her father.

3. Her father was an Imam and held staunch beliefs about Islam and he was a very violent man.

4. She said that her second husband [Mr F] lived near her family, and they met at the bank. He helped her, and she ran away to Jeddah, but they talked her into going back and she threw the Koran in the toilet. She was taken to jail and spent 6 months in there. Her father was ashamed of her. She doesn’t like religion at all she can’t breathe. I asked her if she was a Catholic, he said no, she sent her daughter to a Catholic school, but she now goes to [another] Church. She also said that she does not speak anything but English now and she wished Saudi Arabia would burn to the ground.

5. I asked her how she got out of jail, and she said it was all foggy for her. Her dad was waiting for her, and he spit on her face and beat her with a stick. She then did the paperwork for getting married and moved to [Mr F]’s house. After she married him, he started to get violent. They came to Australia on a student visa and [Mr F] has a brother who lives in [City]. [Mr F]’s parents had her daughter, and they were violent towards her, so she brought her here.

6. Once in Australia [Mr F] was controlling and possessive and he became increasingly violent towards the applicant.

7. She started her divorce from [Mr F] in 2013 and he registered a legal divorce in Saudi Arabia in 2016. When he went back to Saudi Arabia, he left a USB stick and it contained videos that he had made in which he was stalking the applicant.

8. She said her daughter was taken from her in 2019 and the police were violent towards her, and she was bleeding from the ears. She is now deaf in one ear and partially deaf in another ear.

9. The applicant said that the Department asked her for a lot of documents, but she has no one in Saudi Arabia who can get her the documents and she cannot make contact as her family has disowned her. I asked her about going to [Country] and she said she never went to [Country] she got some false documents claiming to be from [Country], but she did not go to [Country].

10. We spoke about her relationship with [Ms H], and I have viewed correspondence and photos of the two of them together. I am satisfied they were in a relationship for several years.

11. If she returns to Saudi Arabia she will be beheaded and taken in the airport. Her family has disowned her and her sister whom she was close to was killed in a car accident. She was pushed to the limit when the Department requested documents and bringing up all the bad things from her past and drove her to multiple attempts at self-harm.

12. The applicant’s fiancé assisted her as her representative and participated in the hearing to a great extent given the applicant’s mental health status.

Mental Health

1. The applicant suffers from severe mental health issues including PTSD, Bipolar Type 2 and ADHD. She told the Tribunal she has been institutionalised (involuntarily) on three occasions and has tried to kill herself.  These three occasions were after her daughter was removed from her care in 2019. She also voluntarily entered the hospital herself to get treatment in 2020. The applicant is now receiving the help she needs to get better and get on with her life.

Country Information

1. DFAT does not have a Country Information Report for Saudi Arabia. The following country information is made up of a range of independent sources about the situation in Saudi Arabia.

Local laws

• Many laws in Saudi Arabia are different to those in Australia, including for same-sex relations and abandoning the Islamic religion. Punishments may include imprisonment, lashing and the death penalty. Get professional advice for local legal matters. You may be prevented from leaving the country until issues are resolved.
• It’s illegal to mock, provoke or question public order, religious values or public morals. Criticising Saudi Arabia, the royal family, the leadership or Islam is also against the law. These laws extend to social media posts, even historical ones. 
• It's against the law to have sexual relations or live together outside of marriage. If you're sexually assaulted, you may face criminal prosecution. Authorities may not consider you to be a victim of crime.
• Always carry your passport or residency card (iqama). There are checkpoints and identity checks can happen. It's an offence not to carry ID.
• In Saudi Arabia, both men and women are asked to dress modestly in public. Avoid tight fitting clothes or clothes with profane language or images. [4]

[4] Saudi Arabia Travel Advice & Safety | Smartraveller

Serious offences

Authorities can detain you without charge if you're suspected of committing an offence.
You may have to wait months for legal help or for a court appearance while authorities investigate.
Trials are held under Islamic law and procedures.
People convicted of serious offences can face:
Penalties for some offences are severe and can carry the death penalty. These offences include:

• long jail sentences
• lashing
• heavy fines
• deportation

• murder
• serious physical assault
• adultery
• rape
• same-sex relations
• abandoning the Islamic religion
• offences perceived to undermine the state

Illegal items

It's illegal to import, possess or trade in weapons and items held to be 'contrary to the tenets of Islam'. This includes:
Authorities scan passenger luggage on arrival. [5]

• alcohol
• pork products
• pornography – including images of scantily clad people, particularly women
• political and religious books, comics and materials, other than those about Islam
• drones, without prior approval

[5] Ibid

1. In Saudi Arabia, it's illegal to:

   • preach or publicly practice a religion other than Islam
   • produce or distribute printed or electronic material, without the Ministry of Culture and Information's authorisation
   • publicly display or wear non-Islamic religious symbols or text
   • be involved in charity and fundraising activities, including online or via social media without prior approval from local authorities
   • post advertisements that result in an income on social media without a license from the relevant local Saudi authorities. Violators could face five-year prison sentence and fines of up to five million Saudi riyals
   • offend the reputation of tourism in the Kingdom, which may include posting negative reviews online about tourist destinations and activities
   • say anything blasphemous
   • have sexual relations or live together outside of marriage
   • get pregnant or give birth outside of marriage

It's also illegal to:
This includes on social media, even historical ones.
It's illegal to possess or trade in alcohol in Saudi Arabia. Authorities have detained travellers on arrival when police smelt alcohol on their breath.
It's illegal to take photos of:

• mock, provoke or question public order, religious values or public morals
• criticise Saudi Arabia, its people, policy, the royal family, the leadership or Islam

• government buildings
• military sites and checkpoints
• diplomatic missions
• palaces
• motorcades
• some religious sites [6]

[6] Ibid

1. Saudi Arabia has a long history of the death penalty, and in March of 2022 they executed 81 men without a fair trial or due process.[7]

   [7] Saudi Arabia: Mass Execution of 81 Men | Human Rights Watch (hrw.org)

2. Women in Saudi Arabia have little to no rights. They cannot travel or get a passport without a male guardian; they have no freedom to marry, and child marriages are frequent. A woman cannot leave a prison or shelter without a male guardian approval, they are discriminated against in employment, healthcare, must adhere to a strict dress code, not be out in public with man who isn’t a relative and must not leave the home without a male guardian. [8]

   [8] Saudi Arabia: 10 Reasons Why Women Flee | Human Rights Watch (hrw.org)

Findings

1. I found some of the evidence the applicant was giving to be confusing. I note that the delegate considered the applicant was inconsistent with her claims and adding new claims.

   
   

   I have considered that the applicant’s mental health has made these inconsistencies appear and that her trauma has closed of part of her mind to the incidences that are painful from her past.

2. Based on the applicant’s oral and written evidence and the country information I accept the following:

• The applicant was married at a young age and was beaten by her husband. Based on the applicant’s oral evidence and emotion during the hearing the Tribunal accepts that this happened to the applicant.

• The applicant’s parents were religious and violent. The applicant was consistent about her upbringing, her father and mothers’ violence and their extreme religious views.

• The applicant was jailed for flushing the Koran in the toilet. However, I do not accept that the applicant was convicted and faced the death penalty as she was released from jail and did manage to get out of the country, return and come back to Australia without being caught or put into jail again.

• The applicant married [Mr F] and he became violent. There were documents provided in relation to this.

• The applicant had a DVO on her ex-husband. The applicant provided police reports and a DVO naming her ex-husband.

• Her daughter was taken away from her. The Tribunal did receive notification from Child Protection that she had been removed from the home and that she did receive a child visa (Subclass 802). There is also evidence that the applicant is working towards reunification with her daughter.

• She suffers from severe mental illness and is deaf after a head injury. The applicant provided multiple medical documents and paperwork related to her ongoing mental health issues and treatment she is receiving. 

• The applicant has had some sexual relationships with women in the past. From the applicant’s evidence she was in some relationship with a woman named [Ms H] in Australia and a woman named [Ms I]. Her fiancé also spoke that he knew she was bisexual.  Country information indicates that Saudi Arabia criminalises same sex sexual activity between both men and women. If found guilty the law imposes the death penalty. There have been consistent reports of violence against LGBTIQ+ people in recent years, including murder, assault, harassment and the denial of basic rights and services. [9]

• The applicant is not a Muslim and does not practice nor respect the religion. Whilst she is not an atheist, she would be considered one upon return and it remains illegal in Saudi Arabia. Conversion from Islam to another religion is grounds for the charge of apostasy, which is legally punishable by death, although courts have not carried out a death sentence for apostasy in recent years. The Basic Law states the duty of every citizen is to defend Islam, society, and the homeland.[10]

  [9] Saudi Arabia | Human Dignity Trust

  [10] apotasty in saudi arabia http: reports Saudi-Arabia

1. The Tribunal finds that the harm feared by the applicant is from government authorities and her family, including her ex-husband and his associates and that it amounts to serious harm as described in s 5J(1)(c) of the Act. The Tribunal is further satisfied that the essential and significant for the harm feared is the applicant’s anti Muslim religion opinion, her serious mental health, her bisexuality and as a member of a particular social group women in Saudi Arabia without a male guardian and that the harm is systemic and discriminatory.

2. Given the treatment of women, the background of the applicant and her anti-religious opinion and given that the government of the Kingdom of Saudi Arabia is one of the perpetrators of the feared harm, the Tribunal finds there is no effective state protection available to the applicant from the harm feared. For these reasons the Tribunal is also satisfied that the real chance of persecution relates to all areas of Saudi Arabia as required by s 5J(1)(c) of the Act.

3. For these reasons, the Tribunal finds that the applicant faces a well-founded fear of persecution on return to Saudi Arabia for her non-religious beliefs, her serious mental health and as a member of a particular social group women without a male guardian in Saudi Arabia and her sexuality.

4. The Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s 5J of the Act. In Accordance with s 5H(1)(a) of the Act, the Tribunal is satisfied that the applicant is outside their country of nationality and, owing to a well-founded fear of persecution, is unwilling to avail herself to the protection of that country. There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant. The Tribunal finds that for purposes of s 36(2)(a) of the Act, the applicant is a refugee.

5. Given these findings it is unnecessary to consider the other criterion under s 36(2)(aa) of the Act.

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

Conclusion

1. The Tribunal remits the matter for reconsideration with the direction that the first named applicant satisfies s.36(2)a) of the Migration Act. The Tribunal affirms the decision not to grant the secondary applicant a protection visa.

Nora Lamont
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.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (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.

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