1918020 (Refugee)

[2024] AATA 2642

1918020 (Refugee) [2024] AATA 2642 (4 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1918020

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Xanthe Emery

DATE:4 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2024 at 4:51pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – supporter of the two Christian breakaway states of Nadroga-Navosa and Ra – member of the Fiji Native Government in Exile – member of the Pacific Indigenous Samaritan Association Inc (PISAI) – association with Ms Oni Kirwin – economic hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 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 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 Immigration and Border Protection on 3 June 2016 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 Fiji, applied for the visa on 10 March 2016. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations.

3. On 13 July 2016 the applicant sought review of the delegate’s decision. On 18 July 2017 a differently constituted Tribunal (case number 1610574) found it did not have jurisdiction to review the delegate’s decision because the review application had not been made within the prescribed period.

4. On 28 June 2019 the Department of Home Affairs re-notified the applicant of its 2016 decision and on 5 July 2019 the applicant sought review of the delegate’s decision again, which is the review application to which this decision relates.

5. The applicant appeared before the Tribunal on 8 February 2024 to give evidence and present arguments. The applicant was represented in relation to the review until 30 January 2024, when his previous migration agent advised they no longer acted on behalf of the applicant. The migration agent did not attend the hearing and the applicant confirmed at hearing he was no longer represented by his former migration agent.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

8. 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).

9. 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.

10. 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

11. 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

    Background

12. In his protection visa application, and in oral evidence to the Tribunal, the applicant provided the following details. He was born in [year] in Suva, Fiji. He is an indigenous Fijian (iTaukei) and a Methodist Christian. He has a former partner in Fiji, with whom he shares a [age]-year-old daughter. He has a de facto partner here in Australia who is from NZ. They have been in a relationship for three or four years and his partner is currently about two months pregnant with their first child.

13. The applicant last arrived in Australia [in] December 2015 on a Tourist visa that was valid for three months. He travelled to Australia for the purpose of visiting his maternal grandparents.

14. His parents reside in Fiji but at the hearing the applicant said they are currently in Australia. His father was returning to Fiji the day of the hearing, but his mother was staying a bit longer because her mother (the applicant’s grandmother) lives in Australia. His parents no longer work. They live in the family home, at the same address in [Suburb 1] in Suva that the applicant provided in his visa application. He has a sister who resides in Australia, and a sister and [number] brothers who live in Fiji. His parents are retired. His sister in Fiji is an [Occupation 1], one of his brothers is a [Occupation 2], and his other brother is unemployed. His sister in Australia is a [Occupation 3].

15. Prior to travelling to Australia at the end of 2015, he had been employed in a [workplace] in Fiji for about five years. He has worked several jobs in [Australia]. He gave evidence he has worked consistently since about 2016. He has a certificate in [deleted] and [industry card].

    Evidence before the Department of Home Affairs

16. The applicant applied for a Protection (XA 866) visa on 10 March 2016. Together with his visa application form, the applicant provided a copy of his birth certificate and the biometrics page of his passport.

17. In his application, the applicant claimed he was a strong supporter of the two Christian breakaway states of Nadroga-Navosa and Ra, which were being closely monitored by the Bainimarama regime in Fiji. He claimed he was a citizen of the Fiji Native Government in Exile of the Christian breakaway states. He also claimed he was at risk of harm from the Bainimarama government because of his association with Ms Oni Kirwin, because he was a follower of Ms Kirwin, and because he was a member of the Pacific Indigenous Samaritan Association Inc (‘PISAI’). He claimed military and police brutality was happening in Fiji, including rape, torture and deaths in custody, and that he feared this would happen to him if he returned to Fiji. He claimed he was unable to relocate in Fiji and could not access protection from the authorities there because the Bainimarama government was over-militarized, the police had no power to protect him, and all the Ministries in Fiji were controlled by the military.

18. The applicant attended an interview with the delegate on 2 May 2016 to discuss his claims for protection. I have listened to an audio recording of this interview and am satisfied the delegate’s decision record accurately summarises aspects of the evidence the applicant gave at the interview. As set out in the delegate’s decision, at interview the applicant provided a lengthy submission that included photos, news articles, extracts of what appear to be the Fijian Constitution, and documents relating to the claimed ‘Fiji Native Government in Exile’ and PISAI, amongst other things. As also noted in the delegate’s decision, the applicant was unable to explain whether any of the information related specifically to him. He said he was not mentioned in any of the documents and was unsure what was contained in the submission.

19. On 3 June 2016 the delegate made their decision to refuse to grant the applicant a Protection visa. The delegate accepted the applicant did not support the then government of Fiji and opposed their policies. The delegate also accepted the applicant was a member of the Fiji Native Government in Exile and PISAI, and that he had attended a protest at the Department in April 2016. However, in light of country information, the delegate was not satisfied there was a real chance the applicant would be persecuted, or a real risk he would be subject to significant harm, because of his support for Ms Oni Kirwin, PISAI, and the Christian breakaway states.

    Evidence before the Tribunal

20. As set out above, the applicant applied for review of the delegate’s decision on 5 July 2019 and provided a copy of the delegate’s decision record with his review application. No additional written material, information or evidence was provided to the Tribunal in support of the applicant’s claims for protection.

21. At the hearing on 8 February 2024, I discussed with the applicant his family, education, employment history, the places he has lived in Fiji and Australia, his migration history, and his claims for protection.

22. The applicant’s evidence was that at the time he applied for the protection visa, he was concerned about returning to Fiji because of his association with Ms Oni Kirwin, PISAI and the Christian breakaway states. He said that back then if you spoke out against the government, they would take you to camps and that he had seen videos of what they used to do when you were taken to the barracks. He confirmed he was not involved with these organisations in Fiji, and said it was something that started here in Australia. When I raised with the applicant that it had now been quite some time since his protection visa application, he confirmed he no longer holds fears of returning to Fiji for these reasons.

23. His evidence to the Tribunal was that he was not in touch with Ms Kirwin anymore and last saw her in 2017. He is no longer involved with PISAI or the Fiji Native Government in Exile and last attended a meeting with those groups in 2016 or 2017. He said the Fiji Native Government in Exile was not active anymore, and that PISAI was working with Indigenous Australians, teaching them about Fijian culture and practices, but he was no longer involved. He confirmed he was only involved with these organisations in Australia, not Fiji. Other than attending weekly meetings and making some financial contributions, he was not involved in any other activities with these organisations.

24. I discussed with the applicant that there had been an election in Fiji in December 2022, that a new Prime Minister and new government had been elected, comprised of a coalition of three parties which did not include former Prime Minister Bainimarama’s party. The applicant said he did not vote in the December 2022 election and had not engaged in any political activities. He said his family supported the campaign of the current Prime Minister, Mr Sitiveni Rabuka, by encouraging their family to vote for him. He no longer really supports the Social Democratic Liberal Party (‘SODELPA’), and now supports the People’s Alliance Party (‘PAP’). The applicant agreed the government had changed and again confirmed he had no worries about returning to Fiji now.

25. He confirmed he had not attended any other protests in Australia, since the protest outside the Department in April 2016 that he had told the delegate about.

26. He also confirmed he had not experienced any harm in Fiji in the past.

27. When asked whether there were any other reasons why he feared returning to Fiji, the applicant claimed that the economy there is very behind Australia and gave the example that wages are much lower than Australia. He said a day’s pay in Australia is equivalent to one week or a fortnight back in Fiji. He said if he returns, he won’t be able to support himself or his family. He agreed he could find a job, but said it was not stable enough to support a family because of a poor economy. Despite having lived in [Suburb 1] in Suva for the entire time he lived in Fiji, the applicant said he would go to his family village [if] he returned to Fiji, where he has extended family such as aunts and uncles, because it was cheaper to live there than Suva.

    Analysis, reasons and findings

28. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because he is a refugee or is owed complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality and receiving country

29. The applicant claims to be a citizen of Fiji and provided the Department with a copy of his Fijian passport and birth certificate. The delegate was satisfied of the applicant’s identity. In the absence of any evidence to the contrary, I am satisfied that the applicant is a citizen of Fiji and that Fiji is his receiving country for the purposes of assessing his claims for protection. There is no evidence before me that the applicant is a national of or has a right to enter and reside in any country other than Fiji.

    Claims regarding political opinion: opposition to Bainimarama government, association with Oni Kirwin, PISAI and the Christian breakaway states

30. Like the delegate, and on the basis of his evidence at interview with the delegate and his oral evidence to the Tribunal, I accept the applicant had some involvement with PISAI and the Fiji Native Government in Exile or Christian breakaway states during 2016 and possibly 2017 in Australia. I accept he had some association with Ms Oni Kirwin because of his membership of these organisations. I accept his evidence about the extent of his involvement with these organisations and Ms Kirwin, which was that he attended weekly meetings in Australia in 2016 and possibly 2017, made some financial contributions, and attended a single protest with PISAI against the Australian Department of Immigration and Border Protection in April 2016. I accept he was opposed to the previous Bainimarama government and what he considered were its policies.

31. The applicant’s evidence to the Tribunal was that he had not seen Ms Kirwin since 2017 and had last been involved with PISAI or the Fiji Native Government in Exile in 2016 or 2017. He also confirmed on several occasions during the hearing that he held no fears of returning to Fiji in connection with his former association with Ms Kirwin, PISAI and the Fiji Native Government in Exile, and given the change in government in Fiji. On the basis of his evidence that he did not vote in the 2022 Fijian election, was not involved in any political activities in connection with the election and has not been politically active other than his association with PISAI, Ms Oni Kirwin and the Fiji Native Government in Exile in 2016 and 2017, I find that the applicant would not seek to engage in political activities on return to Fiji.

32. Fiji held a general election in December 2022 in which a coalition of the People’s Alliance Party, the National Federation Party, and SODELPA won control of parliament. Sitiveni Rabuka became Prime Minister. The election ended the 16-year reign of the Fiji First government headed by former Prime Minister Frank Bainimarama.[1] In March 2023, former Prime Minister Bainimarama resigned from parliament.[2] He has since faced several criminal charges relating to his time in office, along with former attorney general Aiyaz Sayed-Khaiyum.[3]

    [1] ‘2022 Country Reports on Human Rights Practices: Fiji’, US Department of State, 20 March 2023: ‘Fiji’s new politics’, The Interpreter (The Lowy Institute), 17 January 2023:

    [2] ‘Former Fiji PM Frank Bainimarama quits parliament following ‘unjustified’ suspension’, The Guardian, 8 March 2023:

    [3] ‘Former Fiji prime minister Frank Bainimarama found guilty of interfering in police investigation’, ABC News, 14 March 2024: ‘Fiji’s former prime minister Frank Bainimarama to spend night in police custody after abuse of office charge’, ABC News, 6 February 2024:

33. I was unable to locate any recent country information which indicated that individuals previously associated with Ms Oni Kirwin and PISAI are currently of interest to the authorities in Fiji, nor did the applicant provide any. The most recent DFAT Country Information Report for Fiji, dated 20 May 2022, does not include any information about PISAI, Ms Oni Kirwin, the Fiji Native Government in Exile, or the Christian breakaway states. In 2017 DFAT reported that PISAI was based in Australia and did not have a reported presence in Fiji. DFAT reported it was not aware of any interest in Fiji regarding persons associated with PISAI, with the exception of Mereoni ‘Oni’ Kirwin herself, who was reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga.[4] In 2017 DFAT assessed that individuals associated with PISAI were at low risk of harassment and arrest or detention by the government solely for being a member or supporter.[5] I note there were reports of several groups of people in Fiji who were arrested, charged, convicted, and sentenced to terms of imprisonment for sedition and other offences in connection with the Nadroga-Navosa and Ra Sovereign Christian states.[6] However, there is no evidence before me that the applicant was involved in trying to establish these Christian separatist states in Fiji, beyond attending meetings of PISAI in Sydney and being a supporter of the Fiji Native Government Exile, nor did he claim he was at risk of harm in Fiji on this basis.

    [4] DFAT Country Information Report Fiji, 27 September 2017: 3.51.

    [5] DFAT Country Information Report Fiji, 27 September 2017: 3.56.

    [6] DFAT Country Information Report Fiji, 27 September 2017: 3.52, 3.54, 3.55; ‘Sedition case moved to High Court’, Fiji Sun, 27 August 2015: ‘Nadroga 16 still in custody’, Fiji Sun, 9 October 2015: ‘Fiji sedition arrests: Defence lawyer slams lack of evidence against clients’, ABC Pacific, 19 August 2015: ’16 sentenced for sedition’, The Fiji Times, 25 April 2021: ’14 people in Fiji convicted of sedition jailed’, Radio New Zealand, 29 September 2017:

1. The Department of Home Affairs Country of Origin Information Services Section stated in December 2023 that it had not located any reports of former Prime Minister Bainimarama, his supporters, or the military, pursuing Fijians who opposed the former government, since the Rabuka government was elected.[7]

   [7] ‘Common claims: Fiji’, Department of Home Affairs, Country of Origin Information Services Section, 11 December 2023: p 16.

2. In light of the country information set out above, and given the applicant’s honest admission that he had no fears or concerns about returning to Fiji, I am not satisfied he faces a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future, on return to Fiji, because of his previous association with PISAI, Ms Oni Kirwin, the Fiji Native Government in Exile, or his previous political opinion opposing the Bainimarama government.

   Claims regarding economic hardship

3. The applicant claimed that the Fijian economy was behind Australia and that wages were significantly lower. He gave evidence that he would be able to obtain employment but that he would not be able to support his family because of the poor economy.

4. I accept that living standards in Fiji are lower than in Australia, that the economy may be less advanced and less stable, and that wages may be lower than in Australia. I also accept the applicant has a preference to remain in Australia and that he has been a law-abiding member of the Australian community.

5. However, as discussed with the applicant at the hearing, any economic difficulties the applicant may face on return to Fiji are the result of the general economic conditions in Fiji and are not for one or more of the reasons in s 5J(1)(a) of the Act. Accordingly, I am not satisfied the applicant has a well-founded fear of persecution in Fiji as a result of any economic hardship he may face there, now or in the reasonably foreseeable future. Nor would any economic hardship from the general economic conditions in Fiji involve arbitrary deprivation of life, the death penalty, or an intentional act or omission amounting to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. As such, I am also not satisfied there is a real risk he will suffer significant harm for these reasons, now or in the reasonably foreseeable future, if he returns to Fiji.

   Conclusion

6. 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).

7. 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).

8. There is no evidence before me that the applicant satisfies s 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

   Xanthe Emery
   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.

   …