1919869 (Refugee)

[2024] AATA 613

1919869 (Refugee) [2024] AATA 613 (8 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Emily Anne Young

CASE NUMBER:  1919869

COUNTRY OF REFERENCE:                   Cameroon

MEMBER:Sean Baker

DATE:8 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 08 January 2024 at 8:53am

CATCHWORDS
REFUGEE – protection visa – Cameroon – political opinion – Anglophone Cameroonian activist – member of organisation – arrested, tortured and blacklisted – brother killed and mother-in-law’s house burned down – wife and children registered with UNHCR in third country – attendance at protests in Australia – mental health – documentary evidence and supporting statements – country information – no right to enter and reside in third country – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (3), 65, 425(2)(a)
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, a citizen of Cameroon, arrived in Australia as the holder of a student visa in August 2017. He applied for the protection visa on 10 October 2017.

   CLAIMS AND EVIDENCE

   Evidence before the Department

2. In his protection application, the applicant claimed that:

   ·     He is a [Age]-year-old male Cameroonian, born in [City 1] in North West Cameroon. He is a [Christian] and is married with [children]. He has lived in [City 1] and [City 2], in the North-West and South-West regions of Cameroon respectively.

   ·     He studied to university level and then worked as [an Occupation] for a variety of [Employers].

   ·     He left Cameroon to study in Australia as job related training in [Work specialisation] for [Work sector].

   ·     He protested the marginalisation of the English-speaking Cameroonians (also known as Anglophone Cameroonians). As a result, he was arrested and jailed on three occasions, two of which led to him being hospitalised after he was beaten and tortured by the police and security forces.

   ·     He did not seek the help of the authorities because the government and military are corrupt and control everything, they break into people’s houses and take people to jail. There is no freedom, the internet is shut down.

   ·     He cannot relocate, he does not know any other part of Cameroon where he could live.

   ·     He fears he would be abducted, jailed and hung by the police and security forces because he is an Anglophone activist. Because he has been arrested before, he is on their blacklist. The government of Cameroon has given orders to the military to abduct or arrest Anglophone protesters.

   ·     Since the crisis started again in November 2016, fewer Anglophone people have been able to travel in and out of Cameroon. To fly back home, he would have to pass through French towns where he would not be safe.

3. In a statutory declaration dated 19 April 2019, the applicant expanded on these claims, detailing his political activism as a member of [Organisation 1] as the [Organisational position], his periods of detention, how he left Cameroon and why he cannot return, as well as his political activities in Australia. Where relevant this has been detailed below.

4. Accompanying his statutory declaration, the applicant provided support letters from Church and political leaders, evidence of his membership of [Organisations 2 and 1], photographs and country information. Where relevant this has been detailed below.

   The interview

5. The applicant attended an interview before the Department on 16 April 2019. He provided evidence on his claims.

   Delegate decision

6. The delegate accepted that the applicant is a member of the English-speaking community in Cameroon (also known as Anglophones), born in [City 1] in the North West region. The delegate found the applicant displayed some knowledge of [Organisation 1] but provided evidence inconsistent with country information and on this basis, did not accept that the applicant is or was a member of [Organisation 1], had been arrested and tortured on three occasions, or was blacklisted after 1 October 2017. The delegate did accept that the applicant’s house was raided in 2017 and his mother-in-law’s house burnt down but considered this was part of the generalised violence occurring in the Anglophone regions of Cameroon. The delegate accepted the applicant was a member of [Organisation 2] and attended events and [protests]. The delegate found the applicant not credible in relation to his claims of activism in Cameroon. The delegate went on to consider country information about the situation for Anglophone males in [City 1], that that information indicated there was more than a remote chance the applicant would suffer serious harm if he returned to [City 1] or anywhere else in the English-speaking region of Cameroon. The delegate went on to find that the persecution did not relate to all areas of Cameroon and that the applicant could safely and legally access Yaounde or Douala and would face discrimination but not persecution. The delegate then considered complementary protection, found that there was a real risk for the reasons above, but that the applicant could reasonably relocate to Yaounde or Douala as the delegate found the applicant could find employment and accommodation.

   Evidence before the Tribunal

7. The applicant provided a copy of the delegate’s decision to the Tribunal.

8. In September 2023 the applicant submitted a priority request to the Tribunal on the basis of his wife and young children being displaced to [Country] where they had been recognised as prima facie refugees, and the applicant’s worsening mental health. Both points were supported by documentation. Priority was granted in October 2023.

9. The applicant was represented in relation to the review.

10. Having considered the information before me I have decided that a hearing is not necessary and have proceeded to decide the matter in the applicant’s favour: s 425(2)(a).

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant has a well-founded fear of persecution on return to Cameroon or, if not, whether there is a real risk he will suffer significant harm if he is removed from Australia to Cameroon. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Criteria for a protection visa

12. 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.

13. 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.

14. 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).

15. 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.

16. 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

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

    Analysis and findings

18. Having regard to the applicant’s passport, birth certificate, and the ease of the applicant’s use of English in the Department interview, I accept that the applicant was born in [City 1], in North West Cameroon. His first language is English. These facts distinguish him as an Anglophone in Cameroon. The Anglophones are an English-speaking minority living in the North West and South West regions of Cameroon, part of the complex legacy of Cameroon’s colonial past and formation, with the Anglophone minority claiming to have been marginalised since independence.[1]

    [1] Minority Rights Group International, World Directory of Minorities and Indigenous Peoples, Anglophones, UK Home Office, Country Policy and Information Note - Cameroon: North-West/South-West crisis, Version 2.0, December 2020, 1.2.2 CPIN Template 2018 - v3 (publishing.service.gov.uk)

19. I accept that the applicant is married and has [children]. I have had regard to the UNHCR registration summaries and I accept that his wife and children have travelled to [Country] in December 2019, and are registered with UNHCR there. As did the delegate, I accept that the impetus for this was the raiding of the family home in 2017 and his mother-in-law’s house was burnt down.

20. I accept that the applicant is suffering significant mental health symptoms. I have had regard to the initial letter from [Dr A], clinical psychologist, of December 2019, the letter from [Organisation 3] of May 2023 and the follow up letter from [Organisation 3] of October 2023. In the letter from [Dr B], Clinical Psychologist of September 2023, it is stated that based on their assessment, the applicant has been diagnosed with Major Depressive Disorder and Generalised Anxiety Disorder with Panic Attack and psychosomatic symptoms. I accept this diagnosis.

21. On the basis of the copy of the death certificate, as well as the applicant’s contemporaneous reporting of the death of his brother to his medical practitioner as well as to [Dr A], I accept that the applicant’s brother died in Cameroon in around December 2019.

22. I accept that the applicant has engaged in political activity in Australia including attending protests and engaging with [Organisation 2]. He has provided evidence in the department interview and on his online presence of engagement with and an understanding of the Anglophone crisis and the demands of Ambazonia. I accept that he is politically engaged.

    Will the applicant face a real chance of persecution if he returns to Cameroon?

23. The Anglophone crisis in Cameroon has escalated into a situation of armed violence in the North-West and South-West regions. It originated from the repressive response to largely peaceful protests in 2016-2017, which demanded an end to the marginalization of the Anglophone minority.[2] The crisis is a result of long-standing grievances over centralization, cultural marginalization, and the failure of the post-independence state-building process.[3] The conflict has led to widespread violence between government forces and armed separatists, resulting in the death of thousands of civilians and massive population displacement leading to internally displaced persons and refugees in the hundreds of thousands.[4] There are documented recent reports of security and military forces targeting the civilian populations across the Anglophone regions.[5] Both government forces and armed separatist fighters have been implicated in human rights abuses, including mass killings, serious violations of international human rights law, atrocity crimes, targeting civilians across the Anglophone regions, as well as a humanitarian crisis, discriminatory and restrictive practices against the Anglophone minority and the increased politicisation of identity.[6] The crisis has also led to restrictions on humanitarian access and attacks by armed extremist groups in the Far North region. The international community has called for enhanced civilian protection, restoration of humanitarian access, and inclusive dialogue to address the crisis, but with little real progress. In April 2022 the United States Department of Homeland Security designated Cameroon for Temporary Protected Status due to violence by government forces and armed groups, destruction of civilian infrastructure, economic instability, and food insecurity, and this has been extended to June 2025 due to ongoing armed conflict, and extraordinary and temporary conditions including human rights abuses.[7]

    [2] Pinto, Cameroon’s Anglophone crisis flares up after years of autocracy – GIS Reports (gisreportsonline.com) 14 August 2023.

    [3] BTI Country Report Cameroon, 2022, BTI 2022 Cameroon Country Report: BTI 2022 (bti-project.org).

    [4] Bang, H.N., Balgah, R.A. The ramification of Cameroon’s Anglophone crisis: conceptual analysis of a looming “Complex Disaster Emergency”. Int J Humanitarian Action 7, 6 (2022). Amnesty International, Cameroon: Rampant atrocities amid Anglophone regions must be stopped and investigated, July 4, 2023, Cameroon: Rampant atrocities amid Anglophone regions must be stopped and investigated - Amnesty International.

    [5] Human Rights Watch, World Report 2023: Cameroon, World Report 2023: Cameroon | Human Rights Watch (hrw.org); United States Department of State, Country Reports on Human Rights Practices 2022: Cameroon, March 2023, Cameroon - United States Department of State

    [6] Global Centre for the Responsibility to Protect, Cameroon, 30 November 2023, Cameroon - Global Centre for the Responsibility to Protect (globalr2p.org); Human Rights Watch, World Report 2023: Cameroon, World Report 2023: Cameroon | Human Rights Watch (hrw.org).

    [7] Human Rights Watch, World Report 2023: Cameroon, World Report 2023: Cameroon | Human Rights Watch (hrw.org); Secretary Mayorkas Announces Extension and Redesignation of Cameroon for Temporary Protected Status | USCIS.

24. Political dissent has long been repressed in Cameroon, a country characterised as a stable authoritarian state which has aggressively centralized power.[8] Following the 2016-2017 protests in the Anglophone regions, the government limited the ability of those in the region to express their political opinions, for example shutting down the internet in the regions for over three months in January 2017.[9] Anglophones are marginalised and discriminated against by government officials. The government continues to limit the ability of people to express dissent or engage in peaceful protest, and individuals who criticise the government publicly or privately often faced reprisals.[10] Political prisoners continue to be jailed, some are identified by international bodies as being arbitrarily detained.[11]  There are reports that the government monitored private online communications without appropriate legal authority.[12]

    [8] Pinto, Cameroon’s Anglophone crisis flares up after years of autocracy – GIS Reports (gisreportsonline.com) 14 August 2023, BTI Country Report Cameroon, 2022, BTI 2022 Cameroon Country Report: BTI 2022 (bti-project.org).

    [9] Bang, H.N., Balgah, R.A. The ramification of Cameroon’s Anglophone crisis: conceptual analysis of a looming “Complex Disaster Emergency”. Int J Humanitarian Action 7, 6 (2022). United States Department of State, Country Reports on Human Rights Practices 2022: Cameroon, March 2023, Cameroon - United States Department of State

    [11] United States Department of State, Country Reports on Human Rights Practices 2022: Cameroon, March 2023, Cameroon - United States Department of State; Human Rights Watch, World Report 2023: Cameroon, World Report 2023: Cameroon | Human Rights Watch (hrw.org);

    [12] United States Department of State, Country Reports on Human Rights Practices 2022: Cameroon, March 2023, Cameroon - United States Department of State

25. An IRB research response reported a source as stating that "authorities in Yaoundé say that those in the diaspora are the ones spearheading the war,”[13] The response goes on to report sources stating that Anglophone Cameroonians who live abroad and have a link with the crisis will be tracked down and arrested, and face torture and imprisonment if they return.[14]

    [13] Research Directorate, Immigration and Refugee Board of Canada, Cameroon: Situation of Anglophones, including returnees, in Bamenda, Yaoundé and Douala; treatment by society and by the authorities (2016-August 2018), August 2018, Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca)

    [14] Research Directorate, Immigration and Refugee Board of Canada, Cameroon: Situation of Anglophones, including returnees, in Bamenda, Yaoundé and Douala; treatment by society and by the authorities (2016-August 2018), August 2018, Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca)

26. The ongoing crisis in the home areas of the applicant, with the demonstrated atrocities, mass killings, targeting of civilians by both the state authorities and separatists, is well established. I have accepted that the applicant’s family home has been raided and his mother-in-law’s house burnt down. His immediate family have fled to [Country]. His brother has been killed. I have also considered the applicant’s political profile. Even if I were to harbour the same doubts as the delegate did about the applicant’s political activities in Cameroon, he has demonstrably been politically active in Australia, including on social media. I have accepted that he is politically engaged. Having regard to the current situation in Cameroon, to the repression of dissent and the demonstrated willingness of the authorities to repress those expressing a political opinion, I find that there is a real chance the applicant would be seriously harmed by the authorities, including arrest, detention, beating, imprisonment and other forms of serious harm for reasons of his political opinion as someone who is supportive of increased autonomy for the Anglophone regions, his identity as an Anglophone, and his membership of his brothers family, if he were to return to his home area. I find that this harm would occur either at the point that he returned to Cameroon and may be detained at the airport and imprisoned,[15] or when he returned to the Anglophone regions and his political activities in Australia became known to the authorities. I consider it reasonable to accept that these activities would become know to the authorities if they are not already aware either through questioning of the applicant at the airport, or if he returns to his home area and is then questioned by the authorities, given the security situation I consider it reasonable to accept that the applicant, as an Anglophone Cameroonian who has not lived in the country for many years would be stopped and questioned. I accept that if he were questioned the applicant could not be compelled to be untruthful and his status as a failed asylum seeker who has lived in Australia for a considerable period would become known to the authorities as would his social media activities and his attending of protests in Australia.

    [15] Research Directorate, Immigration and Refugee Board of Canada, Cameroon: Situation of Anglophones, including returnees, in Bamenda, Yaoundé and Douala; treatment by society and by the authorities (2016-August 2018), August 2018, Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca)

1. I find therefore that there is a real chance the applicant will be persecuted if he returns to his home area in Cameroon, now or in the reasonably foreseeable future.

2. I have considered whether the real chance relates to all areas. I find that it does, because the potential persecutor is the state and state agents who are present throughout Cameroon, and the country information indicates that Anglophones are readily identifiable by their names and their speaking English as a first language, and the country information further indicates that the security forces throughout Cameroon frequently check the identities of Anglophones. As such I find that the applicant would face a real chance of persecution throughout Cameroon.

3. I have considered whether the applicant could modify his behaviour to remove the chance of harm. He cannot. His name and his speaking English as a first language, his place of birth as indicated in his passport all distinguish him as an Anglophone, innate and immutable characteristics of the applicant.

4. The applicant cannot access effective protection because he fears harm from the state.

5. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   Right to enter and reside in a third country

6. The applicant does not hold a current Cameroonian passport. His current travel document is an Australian TDV and in which he holds a visa for [Country] which has expired.

7. Cameroon is a member of CEMAC, the Economic and Monetary Community of Central Africa (CEMAC). However, reports indicate that CEMAC has not fully developed the reciprocal entry and residence of nationals. In addition, there are reports that Cameroonian citizens have been expelled from Gabon and Equatorial Guinea.[16]

   [16] Etahoben, CEMAC: Paying Lip Service To Free Movement of Persons And Goods Agreement, 25 April 2020, HumAngle, CEMAC: Paying Lip Service To Free Movement of Persons And Goods Agreement - HumAngle (humanglemedia.com)

8. The information before me does not support a conclusion that the applicant has a presently existing right to enter and reside in a third country. I find that he is not excluded by s 36(3).

   DECISION

9. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   Sean Baker
   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.

   …