1908068 (Refugee) - [2024] ARTA 712

1908068 (REFUGEE) [2024] ARTA 712 (5 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1908068
Tribunal:General Member X Emery
Date:5 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 05 December 2024 at 1:57pm
CATCHWORDS
REFUGEE – protection visa – South Korea – exemption from mandatory military service because of accident and injuries – employment and social discrimination and financial hardship – depression and eating disorder – consent to decision without hearing – responsibility to specify particulars and previous evidence – delay in applying for protection – applied after lengthy period as unlawful non-citizen – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 348A(1), 425
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(b)(ii)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection (Subclass 866) visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act).
The applicant, who is a national of the Republic of Korea (South Korea), applied for the visa on 29 September 2017. On 15 March 2019 the delegate refused to grant the visa.
The applicant applied for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 3 April 2019.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the ART). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1)Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the ART. Anything done in, or relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for the purposes of the proceeding after the 14 October 2024. The Transitional Act gives the ART the authority to continue and finalise any aspect of the review not already completed by the AAT.[1]
[1] References in this decision to ‘the Tribunal’ include both references to the Administrative Appeals Tribunal and the Administrative Review Tribunal.
The applicant was represented at the time of his visa application and in relation to the review until 18 November 2024, when he completed a ‘Change of contact details’ form and withdrew his authorisation of his representative.
CLAIMS AND EVIDENCE
Background
The applicant is a [Age]-year-old male, born in [Month Year]. In his visa application, the applicant declared he was born in South Korea, was a South Korean citizen from birth, and did not hold any other citizenship or nationality. He declared he was ‘never married’ and had his parents and one younger sister in South Korea. He declared that he had never been employed.
Migration history
The delegate’s decision record includes a detailed history of the applicant’s travel in and out of Australia and the various visas he has held.
According to the delegate’s decision record, the applicant was granted a Working Holiday (Subclass 417) visa in January 2007, and first arrived in Australia [in] April 2007. The applicant was subsequently granted several Student visas and travelled in and out of Australia on multiple occasions. He last arrived in Australia [in] September 2011 as the holder of an Electronic Travel Authority (Subclass 976). That visa ceased on 22 December 2011 and the applicant became an unlawful non-citizen.
On 29 September 2017 the applicant applied for a Protection (Subclass 866) visa.
Evidence before the Department
The applicant’s protection visa application comprised the visa application form, together with a translated copy of his birth certificate, a certified copy of his NSW driver licence, and a Form 956 appointing his former representative, Ms En Jung ‘Esther’ Shin.
The Department file before me also includes a copy of the biodata pages of the applicant’s previous South Korean passport [Number 1] (issued [2011]) and his current South Korean passport [Number 2] (issued [2017]).
In his visa application, the applicant made the following claims to be owed protection:
a.He suffered from injuries from an accident which led to severe depression and exemption from mandatory military training.
b.He came to Australia and believed he became better. He returned to Korea for six months in 2012 but he felt discriminated against and his depression came back. He was suicidal. He felt scared and intimidated.
c.His exemption from military training affected his ability to find employment and make a living. Due to severe depression, financial constraints and low self-esteem, he began to have an eating disorder. He was not assisted by the government because he didn’t meet the threshold for disability and social security laws are weak in South Korea.
d.He sought help for his medical costs but was not eligible because he did not meet the level of disability severity.
e.He tried to move but South Korea is a small country with a unified law and moving suburbs does not make any changes. It is also difficult to change the culture surrounding treatment of people who are exempt from military training.
f.He fears he will not be accepted in society and will not feel a sense of belonging. His exemption from military training is a disadvantage in seeking employment and the government has not done anything to amend the difficulties and discrimination felt by those who are exempt.
The applicant was not invited to an interview with the delegate and no further information, evidence, or material was provided to the Department in support of his claims.
On 19 March 2019, the delegate refused to grant the applicant a protection visa. The delegate accepted, for the purposes of their assessment, that the applicant had suffered an accident, been exempt from compulsory military service in Korea, had suffered depression and an eating disorder, and had been discriminated against in respect of employment due to having been exempt from military service which brought back his depression and he became suicidal. The delegate accepted that the applicant would face a degree of social stigma for not having undertaken military service, and that he would not have the same employment opportunities and social status as those who had completed their service. However, the delegate did not accept the applicant would be denied any kind of employment such that his ability to subsist would be threatened. The delegate also found the applicant would have access to medical services in South Korea if needed to treat his depression or any other physical ailment. The delegate found that any societal discrimination or stigma was not so severe as to amount to persecution and that he was therefore not a refugee. In relation to complementary protection, the delegate found there was no real risk the applicant would suffer significant harm if he returned to South Korea.
Evidence before the Tribunal
The applicant applied for review of the delegate’s decision on 3 April 2019 and provided a copy of the delegate’s decision record with his review application. He also provided:
a.A 4-page untranslated document which appears to be in Korean. I am unable to discern what this document is or its relevance to the applicant’s case.
b.Another 4-page untranslated document which appears to be in a mix of Korean and English. This document appears to be a medical report of some kind. However, it is unclear what or who the report is in relation to.
No other evidence or information in support of the applicant’s claims for protection has been provided to the Tribunal.
On 23 September 2024, the Tribunal wrote to the applicant (via his representative, Ms Shin) in accordance with s 425 of the Migration Act as in force at the time, inviting him to appear at a hearing before me scheduled for 19 November 2024. This invitation advised the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. This invitation also requested the applicant complete and return a ‘response to hearing’ form within 7 days, and provide all documents he intended to rely on in support of his case by 12 November 2024.
On 13 November 2024 the Tribunal called the representative Ms Shin, as no response to the hearing invitation or any further documents had been received from her or the applicant. A case note on the Tribunal file evidences the content of this telephone call. Amongst other things, Ms Shin advised that she was still trying to get confirmation from the applicant about whether he would attend the hearing but that he had said he would like to. Ms Shin said she would contact the Tribunal by the end of the day but did not do so.
On 18 November 2024 (one day before the scheduled hearing) Ms Shin contacted the Tribunal by phone and advised that the applicant did not wish to attend the hearing scheduled for the following day but that she was seeking additional instructions on whether he wished to waive his entitlement to a hearing and have the Tribunal make a decision on the papers. The Tribunal requested that the applicant provide a signed ‘response to hearing invitation’ form, indicating his intentions regarding a decision on the papers.
Subsequently, the Tribunal received through its online system:
a.A ‘change of contact details’ form for the applicant updating his email and residential address and withdrawing the authorisation of his representative but not her authorisation as his authorised recipient, and;
b.Two completed ‘response to hearing invitation’ forms dated 18 November 2024 – one signed by the applicant, and another signed by Ms Shin, both of which indicated the applicant would not participate in the hearing scheduled for the following day.
In the completed ‘response to hearing invitation’ form signed by the applicant, at Part 1 he ticked the box indicating that he would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. He also indicated his representative would not participate. I acknowledge that the applicant also went on to complete Part 2 of this form, despite indicating he would not participate in the hearing, and stated that he would need a Korean interpreter. He did not complete Part 3 and 4 of the form, and then signed and dated the form at Part 5.
On 19 November 2024 the Tribunal wrote to the applicant and his authorised recipient (being Ms Shin) confirming receipt of the ‘response to hearing invitation’ form and noting that he had advised he would not participate in a hearing and consented to a decision on the material before the Tribunal. The Tribunal advised that the hearing scheduled for earlier that day had been cancelled accordingly. The Tribunal also requested the applicant complete a new ‘change of contact details’ form as the form submitted on 18 November 2024 was distorted and the applicant’s new contact details were difficult to read. It was noted with the applicant that his authorised recipient continued to be Ms Shin.
On 20 November 2024 Ms Shin emailed the Tribunal a further ‘change of contact details’ form that was legible and in which the applicant also withdrew his authorisation of Ms Shin as his authorised recipient.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Migration 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 because they are a ‘refugee’, or are owed ‘complementary protection’, or are a member of the same family unit as such a person and that person holds a protection visa of the same class.
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). The meaning and requirements of 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(1)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 there are 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
In accordance with Ministerial Direction No.84, made under s 499 of the Migration 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.
REASONS AND FINDINGS
Request for a decision without a hearing
The circumstances in which the Tribunal may reach a decision without a hearing are set out in s 106 of the Administrative Review Tribunal Act 2024 (the ART Act). They include where the only parties to the proceeding are the applicant and a non-participating party, and the applicant requests the Tribunal to make a decision without holding the hearing of the proceeding: s 106(3) of the ART Act.
Section 348A(1) of the Migration Act provides that the Respondent Minister in this proceeding is a non-participating party. Accordingly, s 106(3)(a) of the ART Act is met.
In the circumstances of this case, I am satisfied that the applicant’s response to the hearing invitation dated 18 November 2024 can be properly construed as a request to make a decision without holding the hearing of the proceeding. It accords with his representative’s oral advice on the same day that he did not wish to attend the hearing, and his low level of engagement with the review process.
While I note the applicant also completed Part 2 of the ‘response to hearing invitation’ form, in particular indicating that he would not experience any difficulties participating in the hearing and that he would need a Korean interpreter to participate in the hearing, I do not consider that this gives rise to an ambiguity in his response. I consider that it simply reflects a misunderstanding that Part 2 of the form needed to be completed, and that he requires an interpreter in any dealings with the Tribunal. The Tribunal’s correspondence to the applicant and Ms Shin on 19 November 2024 confirmed his advice that he would not participate in a hearing and consented to a decision on the material before the Tribunal, and advised that his hearing had been cancelled. Neither the applicant nor Ms Shin has raised any objection to this.
Accordingly, I am satisfied that the applicant has requested the Tribunal make a decision without holding the hearing of the proceeding: s 106(3)(b)(ii) of the ART Act.
It must also appear to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding: s 106(3)(c) of the ART Act.
In reviewing a decision to refuse to grant a protection visa, the issues which I am required to determine are:
a.whether there is a real chance the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a), if he returned to his receiving country, for the purpose of s 36(2)(a) of the Migration Act; and, if not;
b.whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Migration Act.
I have before me a copy of the Department’s file. As stated above at [10] and [11] this includes copies of the applicant’s identity documents. It also includes his visa application form which sets out his biographical information and his claims for Australia’s protection. The applicant has provided to the Tribunal a copy of the delegate’s decision record, which also includes information about the applicant’s migration history, his country of nationality, and his identity. Based on the material before me, I am able to determine the applicant’s identity and receiving country. I am also able to make findings and form conclusions about whether he meets the criteria for a protection visa in ss 36(2)(a) and (aa).
I have had regard to s 5AAA of the Migration Act, which provides that it is the responsibility of an applicant for a protection visa to specify all particulars of their claim to be owed protection and to provide sufficient evidence to establish the claim. I note the applicant has been represented since applying for the protection visa and for the duration of his review up until 18 November 2024. He has previously been requested to provide further evidence or information in support of his case in the Tribunal’s acknowledgement of review application letter dated 4 April 2019 and the hearing invitation dated 23 September 2024, but has not done so. Neither the applicant or his representative have provided any submissions or evidence addressing the delegate’s decision. There is no reason to believe that a further opportunity for the applicant to provide evidence, information, or submissions would be taken up by him.
In all of these circumstances, it appears to me that the issues for determination in this proceeding can be adequately determined in the absence of the parties, and I have proceeded to a decision on the material presently before me.
Identity and receiving country
The applicant claims to be a citizen of South Korea and copies of the biodata pages of his current and previous South Korean passports appear on the Department file before me. The applicant has also provided a copy of his NSW driver licence and birth certificate. The delegate was satisfied of the applicant’s identity and the authenticity of his passport. I have no reason to doubt the genuineness of these identity documents. In the absence of any evidence to the contrary, I am satisfied that the applicant is a citizen of South Korea and that South Korea is his receiving country for the purposes of assessing his claims for protection. There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than South Korea.
Real chance of persecution or real risk of significant harm
The applicant claims that he had an accident which lead to severe depression and exemption from military training. He came to Australia and felt better. He claims he returned to Korea for six months in 2012 but was discriminated against and he became depressed, suicidal and developed an eating disorder, and that government assistance or social security was not available because he did not meet the threshold for disability. He fears that he will be discriminated against in employment in South Korea and will not be accepted in society because he was exempt from military service.

The applicant has provided limited detail and evidence in support of his claims for protection. The extent of the detail regarding the applicant’s claims for protection is that which is set out in the visa application form. This lacks sufficient detail to satisfy me that the applicant is a person in respect of whom Australia has protection obligations. For example, there is no detail about the accident the applicant claims to have suffered, when and how he obtained an exemption from military service, or the nature or extent of the discrimination he claims to have experienced.
Other than his written claims, there is no other evidence before me of the applicant’s claimed accident, of his military service exemption, or of his depression or eating disorder. The applicant’s claims indicate he sought and obtained medical treatment, but no evidence of any medical treatment in Australia or South Korea has been provided other than, possibly, the untranslated documents he gave to the Tribunal. I am unable to give any weight to these two documents he provided with his review application because they are not translated and I am unable to read them or determine their relevance to the applicant’s case.
As noted above, s 5AAA provides that it is the responsibility of an applicant for protection to specify all particulars of their claims and to provide sufficient evidence to establish the claims. As stated elsewhere in this decision, the applicant has been represented since the making of his protection visa application in September 2017 until 18 November 2024.
Despite the delegate refusing to grant him a protection visa, and the Tribunal advising it was unable to make a favourable decision on the material before it, and the applicant having the benefit of a legal representative, he has provided no further information or evidence to the Tribunal and has declined opportunities to present his case or provide additional evidence in support of his claims.
I am also concerned by the applicant’s migration history as set out in the delegate’s decision record, which the applicant provided to the Tribunal. It records that the applicant last arrived in Australia [in] September 2011 on an Electronic Travel Authority (Subclass 976), which ceased on 22 December 2011. The applicant remained in Australia as an unlawful non-citizen and did not apply for protection for almost six years. This lengthy delay in applying for protection after his last entry into Australia also causes me to doubt the reliability or credibility of his claims.
My concerns regarding the applicant’s migration history, together with the limited and general evidence the applicant has provided in support of his claims for protection, lead me to have significant doubts about or not to accept central aspects of his claims.
Given the limited information before me, I have serious doubts about whether the applicant had an accident, became depressed, and that this lead to him being exempt from military service. The applicant has not provided evidence of his exemption from military service in South Korea. However, for the purpose of this decision, I accept the applicant was exempt from compulsory military service.
The applicant has provided almost no detail about the nature or extent of any discrimination or stigma or other harm he personally experienced in South Korea as a result of having not undertaken his military service. As a result, I am not prepared to accept he was discriminated against in employment, or unable to find work or make a living, or experienced societal stigma or exclusion, because he had not undertaken or was exempt from military service, when he returned to South Korea. I also do not accept he became depressed, was suicidal, and developed an eating disorder, and that he did not receive government assistance, social security, or disability support for his health conditions. On the information before me, I do not accept the applicant has suffered or will suffer from depression, an eating disorder, or any other mental or physical health conditions now or in the reasonably foreseeable future.
I do not accept he will experience any harm should he return to South Korea because he was exempt from military service, including discrimination in employment or from society generally, or an inability to find work and make a living, or societal stigma or exclusion, or that he will suffer from any mental or other health conditions as a result. Accordingly, I am not satisfied that the applicant faces a real chance of persecution, now or in the reasonably foreseeable future, on return to South Korea, for the reasons he claims or for any other reasons. Nor am I satisfied there is a real risk he will suffer significant harm, as a necessary and foreseeable consequence of being removed to South Korea.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa). There is no evidence before me that the applicant satisfies s 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
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.
…