1916417 (Refugee)

[2022] AATA 4785

1916417 (Refugee) [2022] AATA 4785 (18 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Louisa Wong

CASE NUMBER:  1916417

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Paul Noonan

DATE:18 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 18 October 2022 at 10.12am

CATCHWORDS

REFUGEE – Protection visa – Thailand – membership of a particular social group – a woman with a high risk of re-victimisation – a female ex sex worker in Thailand – a witness to a crime – a victim of domestic violence and sexual assault – no adverse contact or threats made by her ex-husband since the divorce –inconsistent and contradictory information–credibility concerns – decision under review affirmed

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 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Thailand, applied for the visa on 19 September 2018. The delegate refused to grant the visa on the basis that there are effective protection measures available to the applicant in Thailand from the authorities.

3. The applicant appeared before the Tribunal on 14 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The Tribunal noted representations were made prior to the hearing with respect to the mental health of the applicant. The applicant confirmed with the Tribunal at the commencement of the hearing that she was well and able to participate in the hearing process. The Tribunal found the applicant to be cogent and clear in her answers to the questions of the Tribunal and is satisfied that she was fit to give evidence. Further the Tribunal notes that the applicant was legally represented in relation to the review and that her representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

   Identity and country of reference

10. The applicant claims that she was born on [date]. Prior to moving to Australia she resided at [Pathum Thani], Thailand.  She provided a copy of the biodata page of her Thai passport to the Department, a copy of which is retained on the Department file and which confirmed the applicant’s date and place of birth. There is no evidence to suggest this document is a bogus document and, as such, the Tribunal accepts the applicant’s identity, as did the delegate.

11. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that she is a citizen of Thailand and as such her protection claim will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.

    Applicant’s original claims

12. In her application for protection the applicant stated that she only speaks, read and writes Thai. She is a Thai Buddhist. She stated that she was employed prior to leaving Thailand for 20 years as a process worker at a [factory]. 

13. The applicant first submitted claims for protection when she applied to the Department for protection. The applicant’s claims are as follows (in summary): Returning from work late at night she saw a girl (being a child) being attacked by some men. She decided to call the police and when they arrived the man abusing the child ran away. The man then returned to her place some days later and threatened to kill her. She decided it was not safe to try and move to another part of Thailand. She decided to travel to Australia as she was afraid the police cannot help her.

    ASSESSMENT OF CLAIMS AND FINDINGS

14. The issue in this case is whether the 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 affirmed.

    Credibility

15. When assessing claims, the Tribunal must make findings of fact in relation to the claims. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant's case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[1]. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant[2].

    [1] Section 5AAA, Migration Act 1958

    [2] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70, Randhawa v MIEA (1994) 35 ALD 1 at 13

16. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted[3]. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt[4]. However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

    [3] Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194

    [4] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at para 196

17. Prior to the Tribunal hearing the applicant introduced new claims. Her representative submitted that she now claims to fear persecution on the basis of her membership of a particular social group, namely as a woman with a high risk of re-victimisation, a female ex sex worker in Thailand (although the Tribunal notes this appears to relate to Australia only as there is no claim or evidence before the Tribunal that the applicant was a sex worker in Thailand), a woman with mental health concerns and suicide ideation. A victim of domestic violence and sexual assault and a witness to a crime.

    Claim - Domestic violence

18. The Tribunal discussed the applicant’s reasons why her domestic violence claim was not previously raised in her original claim. The applicant submitted that she had felt reluctant to disclose this information and had also been poorly advised previously and had been told her witness to a crime claim would be sufficient. The applicant informed the Tribunal that she had obtained a legal divorce form her husband prior to leaving Thailand. The Tribunal accepts that the applicant has experienced domestic violence from her husband in the past. However, she is now legally divorced from him. Further the applicant noted that neither herself, or her mother who resides in Thailand, have had any adverse contact with him since the divorce and the only contact with him was when her mother attended the funeral of one of his parents. The Tribunal is satisfied that the applicant’s relationship with her husband has amicably ended and that they have undertaken a legally recognised divorce in 2018 prior to her leaving the country. Further there has been no adverse contact or threats made by her ex-husband since the divorce. The Tribunal is satisfied that the applicant’s ex-husband is not adversely interested in the applicant and finds accordingly that there is no real chance of serious harm or real risk of significant harm from the applicant’s ex-husband should she return to Thailand as she was in fact actually planning to do, as she stated, prior to developing concerns with respect to her other claims dealt with below.

    Claim – mental health

19. The Tribunal accepts that the applicant has in the past experienced suicide ideation and is currently receiving treatment from a psychologist. She currently uses sleeping pills and takes cholesterol medication. She has not been institutionalised or hospitalised recently for reason of her mental health. She is currently [working]. The Tribunal was aware of the applicant’s diagnosed mental impairment of depression but considers that this did not prevent her from being coherent and responsive to questioning over the course of the hearing. Further the applicant did not assert at any stage that she was unfit to give evidence or that her evidence is or may be affected by a medical condition.

20. As discussed with the applicant, DFAT assesses that in Thailand the Mental Health Act (2008) brought mental healthcare costs under the Universal Coverage Scheme (UCS) and established a Department of Mental Health (DMH). The DMH has undertaken numerous awareness-raising campaigns to reduce stigma attached to mental health, including through creating mass media networks for the dissemination of knowledge and research on mental health. There remains a general lack of societal understanding about mental health issues, however, and considerable stigma persists. Buddhist- and animist-influenced understandings of mental illness are reportedly common, with many attributing mental health symptoms to spiritual possession. In response, the DMH has worked with local monks on programs to recognise and treat people with mental health conditions, in addition to cooperating in programs that integrate Buddhist concepts of mindfulness and meditation with Western treatments. Despite considerable need, limited expenditure and a lack of staff have restricted access to mental health services, particularly for those living in rural and regional areas. As of 2017, Thailand had 9,436 mental health professionals, a rate of 14.36 per 100,000 population (compared to 214.81 in Australia); 19 dedicated mental hospitals (with 3,527 inpatients); 104 psychiatric units in general hospitals; one forensic inpatient unit; two residential care facilities; 830 mental health outpatient facilities attached to hospitals; and 62 outpatient facilities specifically for children and adolescents.[5]

    [5] DFAT Country Information Report, Thailand, 10 July 2020, p.13-14

21. The applicant simply responded that she wished for more time to explain to her daughter in Thailand what happened with respect to her escort work in Australia and she feared she would end up working in a bar in Thailand which would not be good for her mental health. The Tribunal is satisfied that the Thai authorities provide free and accessible mental health treatment for its citizens and undertakes education programs with respect to mental health stigma. The Tribunal considers that the applicant presents in a coherent manner and she is not reliant on significant psychological medication and has not been institutionalised for mental health reasons. As such the Tribunal is satisfied that she is not at risk of being generally stigmatised for reasons of her mental health in Thailand. In addition, while mental health services are more limited in rural areas, the applicant has demonstrated considerable resourcefulness including travelling to Australia and the Tribunal considers she will have the resources and capability to be able to travel to access available mental health resources should she require it. The Tribunal finds that, should the applicant require treatment for her mental health in Thailand, either now or in the reasonably foreseeable future, that she will be able to access treatment such that there is no real chance of serious harm or real risk of significant harm to her for reason of her mental health.

    Claim – re-victimisation, ex-sex worker, victim of sexual assault

22. The Tribunal discussed this claim with the applicant who stated that she had undertaken a short period of sex work in Canberra during the pandemic lockdowns because of a lack of other available work for her and that she had suffered an assault while doing this work. She confirmed that she had never undertaken such work in the past in Thailand. She submitted that an online profile had been established related to this work and she claimed this had subsequently been leaked to Thailand contacts via social media due to the actions of a past boyfriend. She felt ashamed about this and feared people would talk badly about her. She claimed that this had caused problems with her mother who had found out. She claimed this would also cause her problems in obtaining suitable employment and may force her to work in the sex industry or bars as she would be denied other work. The applicant and her representative also indicated this claim also related to her potentially falling victim to further domestic violence given her past experiences and expressed vulnerabilities.

23. The applicant agreed that she had reconciled with her mother. She agreed that she could live with her mother should she need to and would be able to access accommodation and support from this familial source.

24. The Tribunal accepts that the applicant worked for a brief period in the sex industry as an escort in Australia during the pandemic lockdowns. The Tribunal accepts that an online profile related to this work has been circulated on some social media however the applicant was extremely vague as to what the impact of this for her had been other than to express general feelings of shame with respect to her mother and daughter.

25. In addition, with respect to her expressed fear of future domestic violence, the Tribunal noted that The Family Institute Protection Act (2019) provides for significant measures to protect victims of domestic violence and there are also laws in place prohibiting discrimination on the grounds of sex.[6]  The Tribunal notes that the applicant undertook her own independent measures to obtain a divorce from her previous husband and she has familial support and the means to earn an independent income.

    [6] Ibid, p. 33-34

26. Overall, the Tribunal considers these claims to be highly speculative in nature. The Tribunal does not accept as reasonably plausible that the applicant’s brief stint, undertaken through economic necessity working in the Australian escort industry, will cause her to be denied alternative gainful employment in Thailand or that she will be at risk of re-victimisation or otherwise forced to work in the sex industry to survive in Thailand because of this personal history, or that she will be at risk of further domestic violence due to her profile.

27. The Tribunal does not accept that there is a real chance of serious harm or a real risk of significant harm to the applicant for these reasons should she be required to return to Thailand. She has the support of her mother and can live with her if required. Further she gave evidence that she has significant experience in the hospitality industry and is a chef. The Tribunal is satisfied that the applicant will be able to enjoy the support of her mother while re-establishing herself in Thailand and will be able to find gainful work in the hospitality industry.

    Claim – a witness to a crime

28. The Tribunal has serious concerns as to the credibility of the applicant’s original claim to have fled Thailand for fear of harm due to being a witness to a claimed crime against a child on the street while returning from work late at night. As discussed at hearing the applicant has been highly inconsistent and vague with respect to crucial details pertaining to this claimed incident. In her written claim she stated the victim was a girl being abused variously by men and a man. In her subsequent declaration to the Tribunal she stated the claimed victim was a boy and he was being abused by a group of men. Further she stated in her claim that she decided to call police and the police investigated but the man ran away. He then found out she had reported him and threatened her. In her subsequent declaration she stated that she hailed a nearby police car and the men approached her and threatened her with a gun. They then came to her house looking for her and she decided to move away.

1. The Tribunal put to the applicant that it may expect consistency with respect to important details such as being threatened with a gun, the manner in which she called the police, the sex of the alleged child victim, and the number of perpetrators and that these inconsistencies may cause it to doubt the credibility of the claim. The applicant and her representative submitted that she had been badly advised previously and had not spoken the language and that she had relied upon her previous representative to accurately recount her claim which had not happened. The Tribunal discussed with the applicant that it may expect that she would seek to ensure that her claims were accurately reflected with respect to her primary claim for protection and reason for having decided to leave Thailand. The applicant simply stated that she had not checked the accuracy of her claims and she couldn’t check because her phone reception was bad. The applicant’s representative noted that the previous representative, who helped prepare the claim, made several errors and omissions and that the claim was poorly written with internal contradictions.

2. Overall, the Tribunal does not accept as reasonably plausible that the applicant would not seek to ensure that her claims and evidence to the original decision maker were accurate and included such crucial details as being threatened with a gun which is an event that would reasonably be expected to be emphasised in her original claim for protection. The Tribunal considers that the inconsistencies recounted above are significant and are not plausibly attributable solely to previous poor representation. The Tribunal has considered the applicant’s mental health and whether this may have contributed to the inconsistencies. It was not submitted that her coherent cognitive abilities were impaired to such an extent as to explain such serious inconsistencies or that she was impaired to such an extent that she was incapable of ensuring that her claims for protection were made out accurately and fully. Rather the blame was primarily laid upon the poor standard of her previous representation. The Tribunal finds that the applicant’s inconsistent evidence significantly undermines her credibility with respect to this claim. Given these concerns the Tribunal does not accept as credible that the applicant was a witness to a crime against a child on the street late at night while returning from work or that she was threatened with harm by criminals for this reason. It follows that there is no real chance of serious harm or a real risk of significant harm to the applicant for this reason should she be required to return to Thailand.

3. The Tribunal has also considered the accepted cumulative profile of the applicant being a woman with mental health concerns, who has suffered past domestic violence and who has worked briefly in the sex industry in Australia and suffered an assault whilst doing so and with a social media exposure of this work and whether this may result in a real chance of serious harm or a real risk of significant harm to her in Thailand. As noted at hearing Thailand provides it citizens with access to a universal health plan including mental health treatment should they require treatment. Further that The Family Institute Protection Act (2019) provides for significant measures to protect victims of domestic violence.[7] Further the applicant has supportive family in Thailand and other clear avenues for seeking work outside of the sex industry such as in hospitality. Overall, and having considered relevant country information, the Tribunal does not accept the applicant’s cumulative profile results in a real chance of serious harm either now or in the reasonably foreseeable future or a real risk of significant harm, should she be required to return to Thailand.

   [7] Ibid, p. 33-34

4. 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).

5. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

6. 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

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

   Paul Noonan
   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.

   …