1913290 (Refugee)

[2024] AATA 3903

1913290 (Refugee) [2024] AATA 3903 (23 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913290

COUNTRY OF REFERENCE:                   China

MEMBER:Melissa Haag

DATE:23 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2024 at 1:55pm

CATCHWORDS

REFUGEE – protection visa – China – religion – underground Christian – arrested, detained, tortured, forced to sign confession and fined – applied for protection after period as unlawful non-citizen – low-level membership and activities accepted – inconsistent and unpersuasive claims and evidence – application completed by landlord – obtained passport and departed without difficulty – late and uncorroborated claim of bribery of officials – no church membership in Australia – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 35(2)(a), (aa), (2A), 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

BACKGROUND

1. The applicant is [Age] years old and a national of China. He arrived in Australia [in] July 2017 on a Visitor visa. He became an unlawful non-citizen on 3 October 2017 and lodged an application for a Protection visa on 25 January 2018.

2. On 3 May 2018, a delegate for the Minister of Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

3. In his protection visa application, the applicant provided limited family details of only his parents. He provided a single address in [Village], Pingdu, Shandong Province where he claimed to have lived up until he travelled to Australia. He stated that he completed his education in [Year] and was employed from [Year] to 2015 in a Factory. He identified his religion as ‘Other Christian.’

4. In response to questions in relation to his reasons for claiming protection, the applicant made the following claims:

   • He is of Christian religion and attends an ‘underground Church’. He faced ‘violent religious oppression’ by the Chinese Communist Party.
   • He was arrested while attending an underground Church gathering with 40 members of his Church and detained for one year, where he was ‘tortured,’ ‘beaten’ and guards spat on him calling him a religious fanatic. He was forced to sign a confession.
   • The religious policies in China do not allow him to have religious freedom and he would not be safe on return even if he moved to another city. He wants to be able to choose the place of worship that he finds himself comfortable in. He does not want a ‘ruthless regime’ to control his religious freedom.

   The interview

5. The applicant was invited to attend an interview with the Department of Home Affairs on 3 May 2019. The applicant did not contact the Department or attend the interview at the scheduled time.

   The delegate’s decision

6. A delegate of the Minister refused the Protection visa application. The delegate was not satisfied that the applicant is a refugee as defined by s5H(1) and a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk he will suffer significant harm. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations under s36(2)(aa) of the Act.

   The review application

7. The applicant applied for a review of the delegate’s decision on 27 May 2019 and provided a copy of the delegate’s decision record to the Tribunal.

8. The applicant appeared before the Tribunal on 21 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.

   CRITERIA FOR A PROTECTION VISA

   The relevant law

9. 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.

10. 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.

11. 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).

12. 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.

13. 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

    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

    Analysis, reasons and findings

14. For the following reasons, the Tribunal has decided to affirm the decision under review.

15. The applicant’s evidence at hearing that he practised Christianity in an underground Church in China was consistent with his written claims in the visa application. According to his evidence at hearing, his family followed Buddhist traditions. He gave evidence that he was married in [Year] and believed his wife was Buddhist because of her family traditions. He also said that he had a son born in [Year] and an older sister in China. The applicant said he was first introduced to Christianity in early 2016 by a friend from work who noticed that he was not happy at work and suggested attending the Church that she had been a part of for a long time. He said that his Christian practice involved him attending an unapproved Church where he practised ‘The Grace’ religion on ‘four or five’ occasions and on the ‘third or fourth’ occasion, he was accepted into the Church and baptised. His wife was supportive of his religious practice but did not attend Church with him. The Tribunal is willing to accept that the applicant began practising Christianity, was baptised in early 2016 and that he attended an unregistered Christian Church where he practised the religion he described as ‘The Grace’ on up to 5 occasions in Pingdu City, Shandong, China.

16. The applicant gave evidence that he attended the Grace Church for special occasions up to a total of ‘4 or 5’ times until the middle of October 2016 when the Chinese authorities raided a Church gathering and approximately 30 to 40 participants including the applicant were arrested and detained. The applicant said that he was detained for 2 months. When first asked about his arrest and detention, he said that he was detained and completed an education program which involved watching a tv program for an hour or two a day ‘for brainwashing’ following which he was locked in a dark room. The applicant claimed that after approximately 2 months, he signed a promise and confession not to participate in religious activities and paid a fine of $30,000, and they let him go. He said he was not provided a copy of the document or evidence of the payment.

17. The Tribunal has significant concerns about the credibility of the applicant’s evidence that he was arrested and detained by the Chinese authorities in October 2016 based on the following inconsistencies. First, in his visa application he stated that he was detained for 1 year in October 2017 and in his evidence he said that he was detained for 2 months in October 2016. When the Tribunal raised the inconsistencies between the visa application and his evidence, he said that his evidence at hearing was correct and that his landlord filled in the application for him so perhaps some parts were not clear. Second, when the applicant first gave evidence about his experience while he was detained, he said that he was required to watch a TV program for ‘brainwashing’ and then locked in a dark room. When the Tribunal raised concerns that this was different from his visa application where he claimed to have been physically harmed, he claimed that he was subjected to bright lights so he could not sleep and he was beaten with a book in a cloth. The applicant offered no explanation why he had not mentioned this earlier in evidence. Further, the Tribunal notes that the applicant made no mention in his visa application that he paid a bond of $30,000 in order to be released. The Tribunal has considered the applicant’s explanation that his landlord completed the application form such that some parts may not have been clear. However, the applicant had earlier given evidence that he knew his landlord very well, communicated with his in Mandarin, had met him when he first arrived at the airport and he provided him with free rent until he found a job. He also said that his landlord helped him settle into life in Australia and had been a substantial support to him from July 2017 up to when the visa application was lodged in 2018. He said the landlord was the one to tell him about the protection visa when he couldn’t get work and assisted him to apply for the visa. Given the ongoing relationship and level of communication between the applicant and his landlord, the Tribunal does not accept the applicant’s explanation as believable that significant inconsistencies in his evidence were the result of a miscommunication. For the above reasons, the Tribunal finds the applicant’s evidence as to his arrest and detention by the Chinese authorities to be unpersuasive and unreliable. The Tribunal does not accept that the applicant was arrested and detained by the Chinese authorities while attending at an unregistered Grace Church gathering either in 2016 or in 2017, nor that he was detained for any period of time or that he was physically or mentally harmed or subject to religious re-education. The Tribunal does not accept that he was required to pay a fine or that he was released subject to restrictions as to his religious practice or reporting requirements.

18. The applicant also gave evidence that he was being monitored by the Chinese authorities prior to travelling to Australia. He claims that his phone and identity documents will be monitored by the authorities so that they know when he returns to China. Having not accepted the applicant’s claim that he was arrested and detained by the Chinese authorities, and given his limited involvement in the Grace Church limited to him attending to pray on up to 5 occasions in 2016, his limited religious activity in Australia and no evidence that he has been proselytising, the Tribunal does not find it convincing that he would be of adverse interest to and his religious activities monitored by the Chinese authorities. Further, the applicant gave evidence that he was able to apply for a Passport himself without any difficulties. The Tribunal raised with the applicant that his evidence that he was being monitored and of adverse interest to the Chinese authorities before travelling to Australia did not seem to accord with him being able to apply for a Passport and depart China in his own name without any difficulty. The Tribunal raised with the applicant that the DFAT Country Information Report on China states that exit and entry is strictly regulated by the Chinese authorities making it very difficult to obtain a passport and exit China without coming to the attention of the Chinese authorities if he was being monitored.[1]  The applicant responded that in China there are ‘ways around things’ and ‘connections or contacts, gifts and bribes.’ The Tribunal asked if he was suggesting that he bribed an official to obtain a passport and exit China and he answered ‘yes.’ However, he did not offer any further information about the claimed bribery. The Tribunal found his evidence was lacking in detail and unreliable. He also did not offer any further explanation why he would not have raised this in his earlier evidence where he first told the Tribunal that he had not had any difficulties obtaining a passport himself.

    [1] DFAT Country Information Report People’s Republic of China, 22 December 2021 at 5.31, 5.33 and 5.35.

19. The Tribunal has considered the DFAT country information regarding the strict regulation of entry and exit requirements to China, and the applicant’s initial spontaneous response that he was able to apply for a passport without any difficulties and does not accept as persuasive or credible the applicants claim that he had to bribe an official to obtain a passport. The Tribunal finds that the applicant was able to depart China on a passport issued by the Chinese authorities in his own name and there is no evidence that it is a false document. This suggests that he was not being monitored by the Chinese authorities and that he was not of adverse interest to the Chinese authorities before departing China in 2017.  The Tribunal finds that following his Christian practice at the Grace Church in China the applicant was not of any adverse interest to the authorities before he travelled to Australia in July 2017.

20. Further, the applicant gave evidence that in Australia from 2017 to 2024 he has not attended any religious gatherings and that his religious practise is limited to ‘saying a prayer on weekends.’ The applicant also gave evidence that he did not have any direct contact with members from the Grace faith but believes that they are still operating based on information from his sister. The Tribunal asked the applicant about his religious beliefs as a member of the Grace faith.  He said that his religious beliefs were ‘Christianity’ and his faith is based on ‘goodness, equality and everyone is equal.’ The Tribunal raised with the applicant that the Tribunal had not located any country information about his specific Christian Grace faith and asked the applicant if he knew about the history or the founders of his Church. The Tribunal also asked what differentiates his Christian Grace faith from other registered Christian Churches such that he could not attend a registered Christian Church. The Tribunal asked whether his Church was still operating as an unregistered Christian Grace Church in China.

21. The applicant responded that his ‘faith is pretty good’ and if he goes to a registered Christian Church he would have difficulty accepting it and it would betray his faith. He said that he didn’t know about other Christian faiths but the main principles of his faith were ‘goodness, equality, everyone is equal.’ He said that he was baptised into his Grace faith and cannot change his faith. He stated that his religion ‘is legal and reasonable’ but China is a one-party state and will not allow it. He said the faith he attaches to is Grace and Love, they are a small clan and not recognised. He said they are deemed ‘illegal’ and the authorities will take action against him on return to China for his practise. The applicant said that he did not know about the background or founders of the Grace faith. He did not give evidence that his religion was tied to politically sensitive ideologies or suggest that proselytising.

22. According to the DFAT Country Information Report People’s Republic of China, 22 December 2021:

    ·China recognises five religions, including Christian religions of Protestant and Catholic denominations [at 3.22].

    ·Under Xi Jinping, China has introduced a campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure a ‘correct’ version of religion is practised by adherents in China… Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power [at 3.24].

    ·Regulations prohibiting proselytising are generally enforced across China but enforcement may vary from place to place [at 3.26].

    ·Overall, an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political or security issues [at 3.27].

23. While the Tribunal was unable to locate specific information that the Christian Grace religion was banned or an underground Church, it is willing to accept the applicant’s evidence that the Church is an unregistered Christian faith which at the time of his last involvement in 2016 was attended by approximately 40 members, and which he believes is still operating in China ‘in secret.’ However, the Tribunal finds that the applicant’s knowledge and understanding of the Christian Grace religion is commensurate with a low level of involvement in the Grace religion, consistent with him having attended the unregistered Christian Grace Church a total of up to 5 times in 2016. The Tribunal finds that between 2017 and 2024, the applicant did not engage in any Christian religious gatherings in Australia by choice or maintain any direct contact with the Grace Church in China. The Tribunal finds that during this period the applicant’s practice has been confined to weekend prayers in private at his home. There is no evidence to suggest that he has ever engaged in proselytising either in China or in Australia. The Tribunal finds that if the applicant returned to China, he would continue to practise the Christian Grace religion at the same limited level he has been practising in Australia over the past 7 years by his own choice. There was no persuasive evidence before the Tribunal and it does not accept that the applicant’s limited activity in respect of the Christian Grace religion would bring him to the adverse attention of the Chinese authorities upon his return to China. The Tribunal has earlier rejected the applicant’s claim that he was previously detained or monitored by the Chinese authorities prior to travelling to Australia in 2017.

1. For the above reasons, the Tribunal finds that there is no real chance that the applicant would face serious harm if he were to return to China and practice the Christian Grace religion at the same level he has been doing in Australia. The Tribunal finds that there is no real chance that he would come to the adverse attention of the Chinese authorities for the reason of his previous attendance at up to 5 Christian Grace Church gatherings in China in 2016 or his private prayer activities in Australia between 2017 and 2024. The Tribunal has rejected the applicant’s evidence that he was arrested and detained in China for reason of his religious practice in 2016 or 2017 and that he was monitored by the Chinese authorities prior to his travel to Australia.

2. The Tribunal finds that there is no real chance that the applicant would face persecution for the reason of his religion, imputed political opinion or any of the other reasons listed in s5J(1)(a) of the Act. For the same reasons, the Tribunal finds that there is no real risk that the applicant would come to the adverse attention of the Chinese authorities if removed to China. The Tribunal finds that there is no real risk he would suffer significant harm for reasons arising from his past association with the Grace Church, his limited private religious activities in Australia or if he were to continue to practise his Christian Grace Church religion at the same level he has been practising in Australia from 2017 to 2024.

   Conclusions

3. On the basis of the evidence before me, the Tribunal does not accept that there is a real chance that the applicant would be persecuted for the reason of his race, religion, nationality, political opinion, or membership of any particular social group if he were to return to China. Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the purposes of s5J of the Act.  The Tribunal finds that the applicant is not a refugee for the purposes of s.5H(1) and therefore that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).

4. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons outlined above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s5(1). Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).

5. There is no suggestion that the applicant satisfies s 36(2) 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

6. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Melissa Haag
   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.

   …