1909150 (Refugee)

[2024] AATA 3529

1909150 (Refugee) [2024] AATA 3529 (15 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Amy Lee (MARN: 0215803)

CASE NUMBER:  1909150

COUNTRY OF REFERENCE:                   China

MEMBER:Sophie Manera

DATE:15 July 2024

PLACE OF DECISION:  Sydney

DECISION: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 second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 15 July 2024 at 10:42am

CATCHWORDS

REFUGEE – Protection Visa – China – religion – Christianity – there are not effective protection measures available – applicant has a well-founded fear of persecution for reason of religion – membership of the same family unit – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 April 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant is a [age]-year-old man. The second named applicant is a [age]-year-old woman. They are a married couple.

3. The applicants who claim to be citizens of China, applied for the visas on 17 January 2018. In their protection visa application, the first named applicant claimed to fear persecution on the basis of his religion, Christianity. The second named applicant did not make her own claims for protection.

4. The applicants were invited to an interview with an officer of the Department of Home Affairs to discuss their claims, but they did not attend.

5. The delegate accepted that the applicants are Christians, but refused to grant the visas on the basis that their profile is such that they are not of interest to the authorities and would not face a real chance or real risk of serious or significant harm in China on this basis.

6. The applicants provided a copy of the delegate’s decision record to the Tribunal.

7. On 29 April 2024, via their representative, the applicants provided the Tribunal with 2 written statements dated 15 and 22 April 2024, a bundle of photos of the applicants attending church in Sydney, a bundle of 2 documents in Mandarin which purport to be from the [Church 1] and a letter from [name], Chair of [the] Board of [Church 1], dated 21 April 2024.

8. The second named applicant raised her own claims for protection in her written statement dated 15 April 2024, namely that she fears harm on the basis of her religion, Christianity.

9. On 8 May 2024 the applicants, via their representative, provided the Tribunal with a letter from [name], Minister of [Church 1] dated 4 May 2024.  

10. On 17 June 2024 the applicants, via their representative, provided the Tribunal with a bundle of photos of them at a religious conference.

11. The applicants appeared before the Tribunal on 19 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

12. The applicants were represented in relation to the review.

    CRITERIA FOR A PROTECTION VISA

13. 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.

14. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

15. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

16. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

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

    Mandatory considerations

18. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether the applicants are Christians and whether at least one applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Nationality

20. In their application for a protection visa, the applicants claim to be citizens of China, born in Hebei province. 

21. The applicants provided scanned copies of their passport biodata pages in support of the protection visa application. These documents state the issuing authority is MPS Exit & Entry Administration.

22. There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicants, the Tribunal finds that they are citizens of China, and as such their protection claims will be assessed against China as the country of reference and ‘receiving country’ respectively.

    Analysis, findings and reasons

    Credibility

23. In assessing the credibility of the applicants’ claims, the Tribunal accepts that the benefit of the doubt should be given to applicants who are generally credible but unable to substantiate all of their claims. The Tribunal is also aware that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Furthermore, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant is not made out.[2] The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

    [1] MIMA v Rajalingam (1999) 93 FCR 220.

    [2] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.

24. While the Tribunal has concerns with some aspects of the applicants’ evidence, overall the Tribunal finds that the applicants are credible witnesses. The Tribunal took oral evidence from each applicant separately during the hearing, and it notes that the evidence was generally consistent. The claims made by the first named applicant in his protection visa application form were consistent with the evidence the applicants provided at the hearing. The Tribunal also notes the documents provided support the applicants’ assertion that they are Christians. Where the applicants’ evidence diverges, the Tribunal has explained below why it prefers one account over another.

    Religious claims

25. Each applicant said that they feared harm upon return to China because of their religion. They fear arrest and harm from the authorities because they are Christians. They claim to be Presbyterians. Both applicants said that they became Christians due to the influence of their fathers. Both of their fathers were active in the church, and their families were considered ‘host families’, as they would either host religious services at their home or would host guests who had travelled from afar to attend religious services. The first named applicant’s father gave sermons. He advocated the gospel. He would visit the sick and care for them.

26. Both applicants provided consistent accounts of their practice of Christianity in China. The applicant said that they attended a small group gathering on Sunday nights. They would also meet in groups to pray aloud while walking around the village.

27. The Tribunal asked the applicants about harm their family members or fellow church members had suffered in China. Both stated that prior to their marriage (they were married in 2003), the second named applicant’s father had been arrested and detained in a labour camp for approximately 3 months due to his religious activities. The second named applicant added that her father had also been arrested and detained a second time, for approximately 3 days in 2016.

28. The first named applicant did not mention the 2016 arrest when asked about the harm his father-in-law had faced in China. The Tribunal finds that if the second named applicant’s father had been arrested in 2016, the first named applicant would have known about it considering he was married to the second named applicant at that time. Considering the first named applicant had been told by his wife about his father-in-law’s arrest in 2003, the Tribunal finds that had the second named applicant’s father been again arrested in 2016, she would have told her husband about it.

29. As such, the Tribunal does not accept that the second named applicant’s father was arrested and detained for a few days in 2016. The Tribunal prefers the evidence given by the first named applicant, which is that the second named applicant’s father was only arrested and detained on one occasion, which took place prior to 2003.

30. The applicants also stated that they have 2 children in China, who suffered humiliation and discrimination for expressing their religious beliefs at school.

31. They said that one of their religious leaders, [Ms A], was arrested and detained in about November 2015.

32. Both stated that they had never been subject to physical harm nor arrest in China. However, on one occasion the first named applicant was attending a religious training camp in [a city] when members of the Public Security Bureau raided the gathering and started arresting people. The first named applicant managed to run away. The applicants then decided to flee to the second named applicant’s home county, [County 1]. The children remained living with the first named applicant’s parents.

33. Based on the consistent evidence between the applicants, and the general consistency with the claims contained in the written protection visa application form, the Tribunal accepts the following in relation to the applicants’ practice of Christianity in China:

    ·The applicants are Christians, specifically belonging to the Presbyterian faith, which is a denomination of Protestantism;

    ·The applicants’ fathers were active within their respective churches in China. The first named applicant’s father was considered an elder in the church. The second named applicant’s father was arrested and detained on one occasion;

    ·In China, the applicants attended Sunday night services at a ‘family church’, comprising of a small group of about 2 to 3 households in the neighbourhood who would gather, pray and worship together. There was no pastor at these services;

    ·The applicants would walk around the village in small groups and pray aloud;

    ·The applicants’ practice of Christianity was guided by [Ms A], who was arrested and detained in November 2015;

    ·Chinese authorities raided a religious training camp attended by the first named applicant, who managed to run away and avoid arrest.

34. In relation to their practice of Christianity in Australia, the applicants said that they currently attend the [Church 1]. They said they were found by church members to be helpful, and say have taken on additional responsibilities in this church in the past years. The applicants have served the church by assisting with serving meals, cleaning, arranging furniture for functions, and receiving guests who have come to visit the church. They attend a small group Bible study class on Sunday mornings, followed by a church service with the wider congregation. They attend a fortnightly fellowship gathering, where they listen to a religious presentation.

35. In relation to evangelising and preaching activities in Australia, the first named applicant said that the church provides members with pamphlets, which he drops into mailboxes. He has encouraged his roommates to attend church. The second named applicant did not state that she had undertaken evangelising in Australia.

36. The Tribunal accepts the applicants’ evidence relating to their practice of Christianity in Australia because it is consistent with their practice of Christianity in China and it is supported by the documentary evidence provided by the applicants. The Tribunal accepts that the first named applicant has been involved in evangelising activities in Australia, but the second named applicant has not.

37. The applicants confirmed that they had never been physically harmed as a result of their religion. However, the Tribunal accepts that the first named applicant attended a religious training camp which was raided by the authorities. The Tribunal finds that if he had not managed to run away, he would have been arrested and detained. The Tribunal accepts that shortly afterwards the applicants fled to another county, [County 1], and kept a low profile until they came to Australia.

38. The Tribunal has considered the first named applicant’s evangelising activities, and finds them to be an integral part of his practice of his religion. When asked how he evangelised in China, the first named applicant said that when he was young, he followed his father who distributed pamphlets in the village. As an adult, he participated in a mobile prayer group that engaged in praying aloud whilst walking around the village. He said that he would engage in conversations about Christianity with people on the street. He had been yelled at by strangers for doing this. He said that in Australia he does a mailbox drop of church pamphlets. He has been attending his church in Australia for over 4 years and hopes to take on more responsibility within the church. He has encouraged his roommates in Australia to attend church.

39. The Tribunal notes that the applicants belong to the Presbyterian denomination, which is an outward facing church whose purpose is to share the love of God and Jesus Christ with the world.[3] The Tribunal notes that [Church 1] values a lifestyle of sharing the love of God locally and globally by spreading the ‘Good News’ through evangelism, mission and community service.[4] The Tribunal accepts that the first named applicant’s religious activities in Australia are consistent with the objectives of the Presbyterian Church.

    [3]

    [4] [source deleted]

40. The Tribunal notes that both applicants’ fathers were prominent within their family church, and yet they have not suffered serious harm in China in recent years. However, on the first named applicant’s evidence, his father was warned by the local authorities that he would be detained if he continued to practise his religion. Furthermore, the Tribunal notes the first named applicant’s evidence that the family churches in the area have shut down due to harassment from the authorities. The Tribunal finds that the applicants’ fathers have not been harmed or harassed recently as they have not been able to practise their religion as they previously did. The Tribunal accepts the first named applicant’s evidence that his father is visited by the village secretary of the Chinese Communist Party to make sure that he is at home and is not out evangelising.

41. There are 5 officially recognised religions in China, including Protestantism. Since 2012, the government has introduced a program of sinicisation of religion. This requires religions to adapt their practices and doctrines to conform to traditional Chinese culture and values. Religious groups need to register with the government’s Patriotic Associations to operate and undertake religious activities.[5]

    [5] ‘Country Policy and Information Note China: Christians’, UK Home Office, 04 April 2024.

42. Although the government formally recognises 5 religions – Buddhism, Catholicism, Islam, Protestantism and Taoism – it closely monitors their houses of worship, clergy appointments and funding. Many activities that could help to maintain or expand these 5 religious groups are banned, including proselytising and organised religious education for children, such as Sunday schools or religious summer camps. Since President Xi Jinping came to power in 2012, local officials have been less likely to overlook such activities.[6]

    [6] ‘Measuring Religion in China’, Pew Research Center, 30 August 2023.

43. DFAT assesses that Protestant Christians face a moderate risk of official discrimination and are unable to practise their faith freely. Members and particularly leaders of large underground churches are most susceptible to such discrimination, and anyone who has linked their faith to politically sensitive subjects faces a higher risk.[7] Regulations prohibiting proselytising are generally enforced across China.[8]

    [7] ‘DFAT Country Information Report - People's Republic of China’, Department of Foreign Affairs and Trade, 21 December 2021 at 3.35.

    [8] Ibid at 3.26.

44. Christians who worship in unregistered churches or as part of an illegal cult and conduct themselves in such a way as to attract the local authorities’ attention to them, or their political, social or cultural views may face a real risk of persecution or serious harm.[9]

    [9] ‘Country Policy and Information Note China: Christians’, UK Home Office, 04 April 2024.

1. The 2022 US Department of State Report on International Religious Freedoms claims that authorities continue to arrest and otherwise detain leaders and members of religious groups, often those connected with groups not registered with the state-sanctioned religious associations. Authorities reportedly used vague or insubstantial charges, sometimes in connection with religious activity, to convict and sentence leaders and members of religious groups to years in prison. Due to the lack of transparency regarding law enforcement’s persecution of religious followers, estimates of those imprisoned during the year for their religious beliefs ranged from the low thousands to over 10,000.[10]

   [10] ‘2022 Report on International Religious Freedoms: China (Includes Hong Kong, Macau, Tibet, and Xinjiang)’, United States Department of State, 15 May 2023.

2. The Tribunal has considered the above-mentioned country information and finds it is consistent with the first named applicant’s evidence that religious freedoms in China have been tightening in the past decade. While the applicant and his father could previously distribute religious pamphlets in China, and while the applicants could previously pray aloud in public, these activities are now banned.

3. The Tribunal has considered the fact that the applicants did not attend the interview with an officer of the Department to discuss their claims for protection. The Tribunal has considered the applicants’ evidence that they were not aware of the interview, as the representative who prepared their protection visa application form did not inform them of the interview. The applicants said they did not have access to the email address used by their former representative until recently. The Tribunal is concerned by this evidence, as the Tribunal notes that the same email address was used consistently throughout the visa application process and application for review. Nevertheless, the Tribunal has given the applicants the benefit of the doubt and accepted that they did not know of their protection visa interview, considering that the applicants have a limited understanding of English and were wholly reliant on their former representative to guide them through the protection visa application process. The Tribunal does not make any adverse inference from the applicants’ failure to attend their protection interview.

4. On the basis of the above findings, the Tribunal finds that the first named applicant cannot return to China and practise his religion in the way that he has practised in Australia. On the contrary information, the Tribunal finds that were the first named applicant to practise his religion in China in the way that he has done in Australia, or in the way that he has previously done in China, he faces a real chance of being arrested, detained, physical harm, harassment, and social discrimination. The Tribunal finds this treatment constitutes serious harm for the purposes of s 5J(4)(b).

5. The Tribunal is satisfied that his religion is the essential and significant reason for the feared harm: s 5J(4)(a).

6. The Tribunal finds that the first named applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in China. Based on information specific to the Presbyterian faith, the Tribunal finds it would be unreasonable for the first named applicant to be discreet about his religion and abstain from evangelising. The Tribunal finds that requiring the applicant to conceal his religious beliefs, or cease to be involved in the practice of his Presbyterian faith, would fall within the exception in s 5J(3)(c)(i).

7. The Tribunal finds the authorities of China cannot or will not provide effective protection measures to the first named applicant. As the first named applicant has a well-founded fear of persecution from the state, the Tribunal finds he will not be able to obtain protection from the authorities. Section 5J(2) of the Act does not apply.

8. The Tribunal has considered s 36(3) of the Act, but based on the available evidence the Tribunal finds the first named applicant does not have a right to enter and reside in a third country and therefore s 36(3) is not applicable.

9. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

   Member of the same family unit

10. The Tribunal is not satisfied that the second named applicant, who is the wife of the first named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). The Tribunal finds that she has not been involved in the same evangelising activities as the first named applicant, and would not be recognised as a high-profile member of the church. The Tribunal also notes that she did not raise her own claims for protection in her protection visa application form.

11. However, the Tribunal is satisfied that the applicants are spouses. As such, the Tribunal is satisfied the second named applicant is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the second named applicant 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.

    DECISION

12. 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 second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Sophie Manera
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

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

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

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

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

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

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

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

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …