1919535 (Refugee) - [2024] AATA 4319

1919535 (Refugee) [2024] AATA 4319 (12 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1919535

COUNTRY OF REFERENCE: Fiji
MEMBER:Xanthe Emery
DATE:12 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 September 2024 at 5:49pm
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – failed asylum seeker – economic conditions – education – employment – child maintenance – fear of detention – homelessness – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 669
GLD18 v MHA [2020] FCAFC 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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Fiji, applied for the visa on 19 December 2018. On 5 July 2019 the delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant applied for review of the delegate’s decision on 18 July 2019.
The applicant appeared before the Tribunal on 23 August 2024 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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 (‘the Department’), 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
The applicant is [an age]-year-old man from Fiji. He was born in [Province 1], Fiji in [specified year]. He was married in December 2005 and has [number] children of this marriage. He was divorced from his wife in December 2021. His ex-wife and [children] reside in Fiji. [A number] of his children are currently residing with his mother (their grandmother) is [City 1], while [one child] resides with [specified family members]. The applicant’s father recently passed away. The applicant has [specified siblings] in Fiji. He also has extended family in Fiji and Australia.
According to the delegate’s decision record, the applicant was granted a Visitor (Subclass 600) visa on 29 November 2017 and travelled in and out of Australia on that visa on multiple occasions. He last arrived in Australia [in] September 2018 and has not returned to Fiji since.
Evidence before the Department of Home Affairs
The applicant applied for a Protection (Subclass 866) visa on 19 December 2018. Together with his visa application form, the applicant provided the following documents:
a.A copy of the biodata page of his Fijian passport, issued [in] 2013 and expiring [in] 2023.
b.A copy of his Fijian birth certificate.
c.A copy of his marriage certificate, evidencing his marriage in Fiji [in] December 2005.
In his visa application, the applicant claimed that he left Fiji because of the economic situation and the inability of the government to help young people develop. He claimed he was deprived of an education and the opportunity to secure worthwhile employment. Depriving a young person of education and employment is persecution, and being paid $2.68 per hour was slave labour. He was psychologically harmed by way of a deep depression, knowing he had no future. He won’t be able to support himself as he ages and will finish up being granted a ‘beggar’s license’, which would be insulting and harmful. He did not seek help in Fiji or try to move because the cost of moving away from home for work for low pay would leave him in poverty.
The applicant claimed that if he returned to Fiji, he would not get any employment and would be deprived of a living. He claimed that because he has left Fiji and applied for protection he won’t get a chance for meaningful employment, that information on those applying for protection is fed back to the Fijian government, and that he would be deprived of a pension. The authorities will not protect him, and he cannot relocate.
The applicant was not invited to an interview with the delegate and no further information or evidence was submitted to the Department in support of the applicant’s claims.
On 5 July 2019, the delegate refused to grant the applicant a protection visa. The delegate found that the economic hardship and the mental health issues the applicant may face in the future would not amount to persecution. The delegate did not accept that the Australian government would disclose information about protection applications to the Fijian government and was not satisfied the applicant faced a real chance of serious harm as a failed asylum seeker if he returned to Fiji. The delegate also did not accept the applicant faced a real risk of significant harm on return to Fiji as a failed asylum seeker, or because of the economic conditions, or because of his mental health.
Evidence before the Tribunal
The applicant applied for review of the delegate’s decision on 18 July 2019 and provided a copy of the delegate’s decision record with his review application.
At the hearing before me on 23 August 2024 the applicant provided the following documents (copies of which were placed on the Tribunal file):
a.His Fijian passport issued [in] 2023 and expiring [in] 2033.
b.A Certificate of Dissolution of Marriage from [Court 1] in [City 1], dated [in] December 2021.
c.A Statement of Attainment from [College 1] for a course of study the applicant undertook, dated 18 April 2024.
No other written evidence or material has been provided to the Tribunal in support of the applicant’s claims for protection.
At the hearing the applicant gave the following relevant evidence.
He did his primary and secondary education at several different schools in Fiji. His mother was [an occupation 1] and they moved around Fiji in connection with her work. He completed high school at [School 1] in [Province 1] in [year]. After high school he studied to obtain his [occupational registration] at [College 2] in [City 1]. He studied for a year or two but did not complete the course because he had to go and help in his father’s [business 1]. He claimed their business was ‘squeezed out’ by big Indian businesses and their commission went from 6% to 2.5%.
Between 2009 and 2012 he worked at [Employer 1], which was his uncle’s company. He was [an occupation 2], [with specified duties]. From 2012 to 2015 he was [occupation 3] in [City 1]. He wasn’t a qualified [occupation 3] but had been working on [related tasks]. He met up with a friend who was paralysed and so went to help in this friend’s [business 2]. He said that he worked in this [business 2] without pay. When I queried how the applicant was able to work for free when he had a family to support, the applicant then said he also [fixed equipment], and sold them, and also did some [deliveries]. Between 2015 and 2018 he tried to run his own [business]. This business was not very profitable and he couldn’t find jobs.
He is currently working in a [business 3] in [Town 1] as [an occupation 2] and has worked there for a little over a year. He has previously worked in a factory in [Sydney], and in a [business 4] in [Town 2].
As set out above, the applicant has [specified family members] in Fiji. [Their occupations specified.]
I discussed with the applicant why he did not want to return to Fiji. His evidence was that his wife had left him and was threatening to seek maintenance from him for their children. If he doesn’t pay, then he will go to prison. His father had passed away as well. If he goes back, he doesn’t think he’ll find good work to support his children and to pay the expenses for his mother and children. It will be depressing and not good for him mentally. It will be difficult to go from living in Australia to going back to a poorer state. If he returns to Fiji he will be homeless because he doesn’t have a house, and he wouldn’t be able to pay for his kids.
The applicant also claimed that his paternal grandfather was from [Country 1] and so his family was ‘half caste’. They didn’t own land, were pushed around everywhere, and had to struggle for themselves. The applicant’s parents couldn’t afford to buy a house and so it was his job to look after them now. His evidence was that his paternal grandmother was Fijian, and his mother was [from specified countries].
Other than his businesses being unsuccessful and his claimed difficulty finding work, the applicant did not experience any other problems in Fiji in the past.
Analysis, reasons, and findings
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 owed complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Economic claims and preference to remain in Australia
I accept the applicant’s family may have been poor when he was growing up. I am also prepared to accept that he was unable to complete his vocational education course because he went to work in his father’s business, and that this may have been disappointing for the applicant. However, I do not accept the applicant’s claims that he was deprived of an education or the opportunity to obtain worthwhile employment. This is inconsistent with his evidence that he completed high school, commenced post-secondary education, and has generally been continuously employed since then. I note also his evidence was that both of his parents had worked as [occupation 1s]. While I accept the applicant may not have achieved the things he aspired to, the evidence before me does not support a finding that the applicant was denied or prevented from obtaining an education or employment.
I accept the applicant has a preference to remain in Australia where he considers he has more employment opportunities and can earn higher wages. I accept the applicant considers that he is better able to financially support his mother and children by working in Australia. I also accept that the Australian economy is more advanced than Fiji, that wages are higher, and that there may be more economic and employment opportunities. I accept the applicant enjoys a higher standard of living in Australia than he would on return to Fiji.
However, I do not accept the applicant’s claim that he will be unable to obtain employment or deprived of a living if he returns to Fiji in the future, given his evidence about his employment history in Australia and Fiji, and his siblings’ current employment. I have doubts that the situation for him in Fiji is as dire as he claims. I do not accept the applicant will be homeless if he returns to Fiji (and I note he did not claim to have ever been homeless in the past in Fiji). I find he would be able to live with his mother and would likely be supported by his siblings and extended family if needed, despite his preference to be supporting his mother instead. Country information indicates that Fijians generally have large kinship networks with extended family often providing support when a family member is in need.[1]
[1] DFAT Country Information Report Fiji, Department of Foreign Affairs and Trade, 20 May 2022: 2.23.
The applicant did not claim he was discriminated against, harmed, or prevented from obtaining employment because he was ‘half caste’ (as he described it). I understood the applicant’s evidence to be that because his grandfather was not indigenous Fijian, his family did not own any land in Fiji and they were poor. I note that he described his paternal grandmother as Fijian and his mother as Polynesian.
The DFAT Country Information Report Fiji states as follows in relation to iTaukei in Fiji:
3.8 Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.
3.9 Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.
3.10 iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.[2]
[2] DFAT Country Information Report Fiji, Department of Foreign Affairs and Trade, 20 May 2022: 3.8 to 3.10.
In light of this country information, and considering the applicant’s evidence as a whole, I am satisfied that 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, including because the applicant is of mixed race. 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. I am also not satisfied that any economic hardship from the general economic conditions in Fiji involves 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 as a result of any economic hardship he may face in Fiji, now or in the reasonably foreseeable future.
Mental health claims
The applicant claimed in his visa application that he had a ‘deep depression’ in Fiji in the past, and that it would be depressing and not good for him mentally if he returned to Fiji in the future. At the hearing I asked the applicant whether he had any evidence of having had depression. He said he did not, and that since he had been in Australia he was happy and not depressed.
I do not accept on the evidence before me that the applicant was depressed or had any other mental health conditions in Fiji in the past. As I have set out above, I accept the applicant does not wish to return to Fiji and that it may be demoralising or disheartening for him to do so after having lived in Australia for several years. However, I am not satisfied on the evidence before me that the applicant would suffer from depression or any other mental health conditions should he be required to return to Fiji.
Even if I were satisfied the applicant would be depressed or that his mental health would deteriorate if he was required to return to Fiji, I am not satisfied this would involve persecution of the applicant by another person for one or more of the reasons in s 5J(1)(a), or that it would involve the intentional act or omission of another person as contemplated by the definitions of significant harm in s 36(2A) and s 5(1) for the purposes of complementary protection.[3]
Failed asylum seeker
[3] GLD18 v MHA [2020] FCAFC 2; CHB16 v MIBP [2019] FCA 1089; CSV15 v MIBP [2018] FCA 669.
At hearing I discussed with the applicant the claim in his visa application that information about those applying for protection was fed back to the Fijian government and that he would be denied a pension. I explained that this claim did not align with the country information available to me and asked whether he had any evidence that this took place, to which he responded that he maybe had some, but he didn’t know. He said he thought his friend who assisted him to complete the visa application had included that claim and that he didn’t know where his friend had got that from.
The DFAT Country Information Report Fiji states as follows in relation to returnees to Fiji:
DFAT is not aware of any official or societal discrimination against failed asylum seekers… Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.[4]
[4] DFAT Country Information Report Fiji, Department of Foreign Affairs and Trade, 20 May 2022: 5.28
I am not aware of any other country information that contradicts the above DFAT assessment, nor has the applicant provided any.

In light of the country information before me and the applicant’s oral evidence at hearing, I do not accept the applicant would be deprived of meaningful employment, or deprived of the pension, or experience any other harm in Fiji, because he has applied for protection in Australia. Accordingly, I am not satisfied there is a real chance the applicant will be persecuted, or a real risk he will suffer significant harm, in the reasonably foreseeable future, in Fiji because he is a failed asylum seeker or because he applied for a protection visa in Australia.
Threats from the applicant’s ex-wife to claim child maintenance
At hearing the applicant claimed that if he returned to Fiji his ex-wife would make a claim for child maintenance from him. He won’t be able to pay and if he doesn’t pay he will go to gaol. The applicant has not provided any evidence that his ex-wife has made an application or will make an application for maintenance from him, nor has he provided any corroborative evidence that the consequence of not paying child maintenance is imprisonment.
His oral evidence was that they were divorced, that she was living with her new partner and their child, and that none of the applicant’s children resided with their mother at present. Given this evidence, it is not apparent that the applicant’s ex-wife would be motivated to make a claim for child maintenance against the applicant, or that any such claim would be successful. That the applicant’s ex-wife would make a claim for child maintenance, that that claim would be successful, that the applicant would be unable to pay any child maintenance he is required to, and that he would then be prosecuted and sentenced to prison, appears to be entirely speculative. There is also no evidence before me that any Fijian laws relating to the payment of child maintenance are discriminatory or applied in a discriminatory manner.
Nevertheless, I have considered whether, were the applicant’s ex-wife to seek child maintenance from him and that claim was successful, that would amount to persecution or significant harm. I am not satisfied that the applicant being required to pay child maintenance for his children would amount to persecution for one or more of the reasons in s 5J(1)(a), that it would involve serious harm to the applicant, or that it would involve systematic or discriminatory conduct. I am also not satisfied that the requirement to pay child maintenance would 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.
I am not prepared to accept, on the vague and unsubstantiated information before me, that the applicant would be unable to pay any child maintenance that he may be required to pay in the future, or that if he did not pay it he would be prosecuted, or that if he was prosecuted he would be imprisoned. To be satisfied of these matters requires a high degree of speculation or conjecture. Accordingly, I am not satisfied there is a real chance the applicant will be persecuted, in the reasonably foreseeable future, in Fiji because he would be unable to pay child maintenance. Nor am I satisfied that there is a real risk he will suffer significant harm as a necessary and foreseeable consequence of removal to Fiji because of the non-payment of child maintenance.
Conclusion
I have considered the applicant’s claims individually and cumulatively.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa). There is no evidence that the applicant satisfies s 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision 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.
…