1928971 (Refugee)

[2024] AATA 4370

1928971 (Refugee) [2024] AATA 4370 (5 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1928971

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Dr Greg Weeks

DATE:5 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 05 September 2024 at 2:34pm

CATCHWORDS

REFUGEE – Protection Visa – Lebanon – engaging in a relationship with a woman of a different religion – do not accept that his life was at risk from his parents – applicant’s claim to fear harm from his brother is not unconvincing – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 26 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is a [age]-year-old man and is a citizen of Lebanon. He resided in [Town 1], a town in northern Lebanon near to Tripoli. He is his parents’ youngest child and has four brothers and seven sisters. Three of his brothers live outside of Lebanon. The applicant’s father is now [age] years old and his mother is [age].

3. The applicant obtained a student visa to enter Australia and arrived in Sydney on [date] August 2011. He subsequently held another student visa which ceased on 6 August 2014 and has held a succession of bridging visas since.

4. The applicant flew home to Lebanon on [date] September 2015 and returned to Australia on [date] October 2015. The applicant applied for a protection visa on 19 July 2016. The Tribunal has been provided with a copy of the applicant’s application for a protection visa (PV application).

5. The applicant married his wife ([Ms A]) after lodging the PV application. They have a [age]-year-old son and a [age]-year-old daughter. The applicant is also stepfather to [Ms A]’s two daughters from her previous marriage, who are aged [age] and [age] years.

   Procedural history

6. The applicant attended an interview with the delegate on 9 July 2019. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owes protection obligations. The delegate published her reasons for that decision in a document dated 26 September 2019 (decision record).

7. The applicant appeared before the Tribunal on 19 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was not represented in relation to the review.

   Claims for protection

8. In the PV application, the applicant claimed that he met a woman (whom I will designate as MJ) and that a relationship developed between them. The applicant claimed that they spoke about religion and agreed that they respected each other’s religious views. The applicant claimed that he spoke to his family about MJ and told them about the difference in their religions. The applicant claimed that his family were not happy about the relationship altogether, let alone the religious differences. The applicant claimed that his family threatened to kill him and said that, if he was to continue his relationship with MJ, she would need to change her religion and convert to Islam in order for the applicant’s parents to accept him and MJ being together. The applicant claimed that he spoke to his parents many times to try and convince them otherwise, but that they insisted that they would kill him if they saw the applicant with MJ.

9. In the PV application, the applicant claimed that he travelled to Lebanon for a period of [number] days in 2015[1] and was staying in an area far away from his town so that nobody he knew or that knew his family would recognise or see him, including his family themselves. The applicant claimed that he “immediately … had to come back to Sydney and this made me scared for my life as my parents are in Lebanon”. The applicant claimed that MJ knew that his parents had disowned him and that they had threatened to kill him on numerous occasions if they saw the couple together or found out that they were still pursuing a relationship together.

   [1] The PV application stated erroneously that the applicant was in Lebanon for a period of 8 months. This error was corrected in the applicant’s interview with the delegate, as recorded in the decision record.

10. In the PV application, the applicant claimed that the reason his parents were mad at him and threatened to kill him is that they are “incredibly strict and entrenched in their ways and their religious views whereas [the applicant is] relaxed with [his] religious views and very open minded”. The applicant claimed that he holds a great respect for people of all races, cultures and religions and that MJ holds those same views which is why he believed their relationship would work despite the opposition they faced from the applicant’s parents. The applicant claimed that he was scared for his life and that he genuinely feared that his parents would kill him if they knew his whereabouts, because he was still with MJ and had not “lied to them and told them otherwise because I refuse to deny my love for her and my commitment to our relationship”.

11. The decision record indicates that the applicant added further detail to the claims set out above in his interview with the delegate. He claimed that he was in a genuine de facto relationship for two years with MJ, who was of [a specified] background and a Buddhist. He ended his relationship with MJ around August 2014 and asked her to stay away from him.

12. In his interview with the delegate, the applicant claimed that his parents were threatening him and did not accept his conduct and former relationship with MJ in Australia. The applicant claimed that he went through an informal Islamic marriage ceremony with MJ but could not recall the name of the imam. The imam did not issue them a certificate for this marriage or relationship ceremony. The couple did not hold a Buddhist marriage ceremony. The decision record states that the delegate was not satisfied that the applicant’s claim to have had an Islamic ceremony with MJ was credible.

13. In his interview with the delegate, the applicant claimed that his parents would only accept his relationship if MJ converted to Islam, which she did not do. The applicant claimed that his parents considered that his de facto relationship with MJ was prohibited under Islam and therefore told him to not return to their home in [Town 1]. The applicant returned to Lebanon in 2015 to attempt to resolve the issue with his parents and stayed with a friend in Tripoli. He claimed that he spoke to his parents via telephone whilst in Lebanon in an attempt to see them but they refused. In his interview with the delegate, the applicant claimed that he did not engage with a sheikh or mukhtar in Lebanon to mediate the issue with his parents.

14. In his interview with the delegate, the applicant claimed that he married [Ms A] in a religious ceremony in October 2016, after which they started living together. [Ms A]'s mother from Lebanon and some of their Australian friends attended the celebration. Although the applicant was unemployed, [Ms A]’s family agreed to their marriage because he had applied for a visa with work rights. The decision record states that [Ms A] had previously been married and was legally divorced in November 2017. [Ms A] married the applicant in a civil ceremony on 23 November 2017. In February 2018, she lodged a Partner visa sponsorship application for the applicant.

15. In his interview with the delegate, the applicant claimed that his parents have met [Ms A]’s parents and that [Ms A] and her children have visited the applicant’s parents but that her life is not at risk. The applicant claimed that his life is not at risk because his parents are embarrassed but because he broke Islamic law.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

16. 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.

17. 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 (the refugee criterion).

18. 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).

19. 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.

20. 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

21. 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.

    Analysis, reasons and findings

22. For the following reasons, I have concluded that the decision under review should be affirmed.

    Relationship with MJ

23. The applicant gave evidence at the hearing, and I accept, that he was never formally married to MJ and that they did not go through a wedding ceremony according either to Islamic or Buddhist tradition. He claimed that they “presented” themselves before an imam in 2012 and lived as a de facto couple. The applicant continued to attend the mosque every Friday. The applicant’s relationship with MJ formally ended in August 2014 and, while the applicant cannot recall when he last spoke to her, I find that they have not been in contact since around that time.

24. The applicant claimed in the PV application that his family threatened to kill him for being in a relationship with MJ. However, he claimed that they had also said that “if [the applicant] was to continue [his] relationship with [MJ] she would need to change her religion and convert to Islam in order for the applicant’s parents to accept” the applicant and MJ being together (emphasis added). That evidence indicates that the applicant’s parents were prepared to accept his relationship with MJ on the conditions that she convert to Islam.

25. The applicant also claimed in the PV application that his parents threatened to kill the applicant “if they saw [him] with [MJ]” (emphasis added) or “if they … were to know that [the applicant and MJ] were still pursuing a relationship together” (emphasis added). That evidence indicates that, while the applicant’s parents did not want to be confronted with his relationship with MJ, any sense of shame over that relationship would not of itself have causes them to kill the applicant in other circumstances, such as the relationship ending.

26. The applicant claimed in the PV application that his family were not happy about his relationship with MJ and that his “parents” had disowned him and threatened to kill him. The applicant lodged the PV application nearly two years after the end of his relationship to MJ. The applicant’s relationship to MJ is only relevant to his protection claim for the reason that the applicant alleges that members of his family still intend to cause him harm if returned to Lebanon because that relationship caused them “shame”. I have considered the applicant’s claims on the basis of his evidence at the hearing that his family considered that he had “done something wrong” by engaging in a relationship with a woman of a different religion and that he still needs to be held “accountable” for that act.

    Relationship with [Ms A]

27. The applicant gave evidence that [Ms A] is a Sunni Muslim and that she attends the mosque only on “special occasions”. I accept the applicant’s evidence that [Ms A]’s parents are sometimes in contact with the applicant’s parents. I accept the applicant’s evidence that [Ms A] has visited his parents in Lebanon twice and that they have “no problem” with her. I accept the applicant’s evidence that he speaks with his father by telephone about once a month and with his mother sometimes but “not much”. The applicant gave evidence, and I accept, that he has sent his parents photographs of his children and that his father is interested to hear about them when he speaks to the applicant.

28. Based upon the evidence above, I find that the applicant’s parents have accepted [Ms A] as the applicant’s wife and that they maintain a cordial relationship with both [Ms A] and her parents. I find that the applicant’s family are not opposed to the applicant’s marriage to [Ms A] for religious reasons or because of the previous relationships in which [Ms A] and the applicant were respectively engaged.

29. I asked the applicant how his parents were able to have such a positive relationship with [Ms A] if they want to kill him. He replied that they “don’t care”. I asked why [Ms A] does not mind that the applicant’s parents want to kill her husband. The applicant replied that [Ms A] had tried resolve the issue when she was in Lebanon and that his family are not a threat to her. I do not find that evidence convincing.

    Credibility of the applicant’s claims and evidence

30. The applicant claimed that he was threatened with harm during his visit to Lebanon in 2015 because his parents did not believe that his relationship with MJ had ended. The applicant claimed at the hearing that he still hears threats “over the phone” from his mother and brother in Lebanon, most recently about two months prior to the hearing.

31. The applicant gave evidence that he was not subjected to physical violence by his family and that he did not seek protection from the police when he was in Lebanon in 2015. I asked the applicant whether those facts might indicate that he did not fear harm from his family at that time. He replied that he “did not want the issue to escalate” and that he thought that the police would not do much in the short space of time before the applicant flew back to Australia. While the applicant’s relationship with his parents may have been strained during his visit to Lebanon, I do not accept that his life was at risk from his parents during that visit.

32. The applicant gave evidence at the hearing that his mother and brother threatened him for having brought shame to their family by having a relationship with MJ. Although he spoke at times about fearing harm from his “parents”, the applicant also gave evidence that he speaks regularly to his father. He gave evidence that his father has “forgiven” him for not preparing “formal documents” before his marriage to [Ms A] but that his mother and brother have not. The applicant gave evidence that his brothers who live outside of Lebanon “understand” and that his sisters are concerned with “more important things”. I accept on the basis of that evidence that the applicant now has a positive relationship with his father. I do not accept that his father constitutes a threat to the applicant’s life. The applicant’s claim for protection therefore relates only to fearing harm from his mother and the brother who still lives in Lebanon.

33. The evidence about why the applicant alleges that his mother and brother have threatened to harm him was vague. I asked the applicant why his mother and brother in Lebanon still want to harm him when his relationship with MJ has been over for about ten years and he has been in a relationship with [Ms A] for about eight years. He replied that he “senses” that they are still not happy and that he does not trust that they would not harm him. The applicant later gave evidence that “something wrong” had taken place and that his family need to address the shame caused by that incident regardless of the passage of time.

34. The evidence about the nature of the threats to which the applicant alleges he has been subjected was vague. The applicant gave evidence that, when he was in Lebanon in 2015, his brother threatened to “do something” to the applicant. The applicant gave evidence that, during the recent phone conversation, he was told that his family “haven’t forgotten”, was warned not to “try to reconcile” and told that they “can do anything” to him. I asked the applicant what specific threat had been made to him and he replied that they said that they would kill him.

35. The applicant gave evidence in the hearing that he rarely speaks to his mother or his siblings who live in Lebanon by telephone. The applicant gave evidence that his father has forgiven him for entering into a relationship with MJ. I accept that his mother and brother may not have done so. However, the fact that the applicant’s parents have a positive relationship with the applicant’s wife and her family does not sit easily with the applicant’s claim that his mother and brother would attempt to kill him if he were to return to Lebanon either for the reason of his relationship with MJ or for the reason of his relationship with [Ms A].

36. Neither the PV application nor the decision record indicates that the applicant claimed to fear harm from his brother. The applicant did not allege prior to the hearing that his brother is a threat to him, although that claim was central to the applicant’s claim for protection during the hearing. The applicant’s evidence as to why his brother remained so upset with him that he would want to kill him was vague. I find the applicant’s claim to fear harm from his brother to be unconvincing.

1. The applicant claimed at different times that his family would harm him if he returns to Lebanon because he had caused them shame through his relationship with MJ and because he married [Ms A] without fully observing the necessary formalities. The applicant’s evidence also indicates that his family have accepted that his relationship to MJ is long over and that they accept and interact with [Ms A]. Even if I were to accept, which I do not, that the applicant’s mother and brother remain upset by the applicant’s relationship with MJ or the way in which he married [Ms A], I am not convinced on the basis of the applicant’s evidence that they will seek to harm him if he returns to Lebanon.

2. The applicant gave evidence that he does not want to leave Australia because he bears a heavy responsibility to support [Ms A] and their children. The applicant gave evidence that his greatest concern is to stay with [Ms A] and their children and that he is concerned that he cannot obtain a Partner visa without leaving Australia. The applicant gave evidence that, taken at its highest, the harm he claims to fear in Lebanon is not general or systemic but comes only from his mother and brother. I accept that evidence.

3. The applicant alleged in the PV application that his parents threatened to kill him when he was involved with MJ. Those threats, as alleged, were conditional and indicated that, notwithstanding their “incredibly strict and entrenched” religious views, the applicant’s family were prepared to accept the relationship if MJ converted to Islam. I do not accept, based on that evidence, that the relationship between the applicant and MJ caused a level of shame to his family that could not have been, and ultimately was not, overcome. That finding is supported by the evidence that the applicant’s family have no difficulty with the applicant’s marriage to [Ms A] for religious or other reasons which prevents them from having contact with [Ms A] or her parents. If I were to accept, which I do not, that the applicant’s parents ever wanted to kill him because of his relationship with MJ, I do not accept that the threat persisted once it was clear that the relationship with MJ had ended. I do not accept that the applicant’s family will harm or kill the applicant for reasons related to his relationship with MJ.

4. The threats which the applicant alleges have been made to his life since that time are generally vague. I do not accept that the threats to “do something” made in 2015 provide evidence that his mother or brother intended to kill him then or that they intend to do so now. The applicant claims his mother and brother have made one specific threat to kill him since 2015, by telephone in the months before the hearing. The applicant made only vague claims, such as that his family “haven’t forgotten” and “can do anything”, until I asked him to be specific. The evidence which the applicant then gave, that his mother and brother threatened to kill him, is significantly more direct than any threat that the applicant claims to have received before, including when he was involved with MJ. The self-serving nature of that evidence contributes to my impression that it was unreliable. Taking into account the entirety of the applicant’s evidence considered above, I do not accept that the applicant’s mother or brother threatened to kill him in a phone conversation as the applicant claimed. 

5. For the reasons given above, I do not accept that there is a real chance that the applicant’s family will harm or kill the applicant if he returns to Lebanon. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). The ‘real risk’ element of the complementary protection criterion has been held by a Full Court of the Federal Court of Australia to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[2] That reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[3]

   [2] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, 551 [246] (Lander and Gordon JJ).

   [3] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp170-1 at [1169], [1180].

7. While the applicant stated that there are “many reasons” not to return to Lebanon, such as that the “airport can shut down” because of the current state of conflict there and that the “crime rate is increasing”, the applicant did not claim that those issues would be directed at him rather than issues faced by the population of Lebanon generally. I do not accept that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Lebanon. I am 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 suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

   Dr Greg Weeks
   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.

   …