1932270 (Refugee)

[2023] AATA 3501

1932270 (Refugee) [2023] AATA 3501 (9 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1932270

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Wayne Pennell

DATE:9 August 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 09 August 2023 at 3:19pm

CATCHWORDS

REFUGEE – protection visa – Fiji – economic conditions – employment – period of unlawful residence – return visits to Fiji – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

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 a review of a decision made by a Delegate of the Minister for Home Affairs (‘the Delegate’) to refuse to grant the Applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The Delegate’s decision was provided to the Applicant on 18 October 2019.

2. The Applicant, who claims to be a citizen of Fiji, applied for a Protection visa.[2] The Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Fiji, there was a real risk she would suffer significant harm and refused to grant the visa[3] on the basis that she was not a refugee as defined by the Act[4] and therefore she was not a person in respect of whom Australia has protection obligations.[5] In response to the Delegate’s decision, the Applicant subsequently filed an application with the Tribunal for a review of that decision.[6]

   [2]The Applicant’s application was received by the Department of Home Affairs on 14 January 2019.

   [3]The Delegate’s refusal was made on 18 October 2019.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

   [6]On 13 November 2019

3. The Tribunal notes that the Applicant was not represented throughout the process of applying for protection, or her review application. At a subsequent time, the Tribunal sent a letter to her and advised that it had considered all the material relating to her application but was unable to make a favourable decision on that information alone and she was invited to attend an in-person review hearing scheduled for 8 August 2023.[7] The Applicant accepted that invitation and attended the scheduled hearing.

   [7]The Tribunal advised the Applicant on 13 July 2023.

   CRITERIA FOR A PROTECTION VISA

4. The measures for a Protection visa are set out in the Act[8] and Schedule 2 to the Migration Regulations1994 (Cth). An Applicant for the visa must meet one of the alternative criteria as provided in the Act.[9] That is, the Applicant 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.

   [8]Migration Act 1958 (Cth), s 36.

   [9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

5. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]

   [10]Migration Act1958 (Cth), s 36(2)(a).

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[11] 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.[12]

   [11]Migration Act1958 (Cth), s 5H(1)(a).

   [12]Migration Act1958 (Cth), s 5H(1)(b).

7. The Act also provides that 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, and 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.[13] 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 the Act, which are extracted in the attachment to this decision.[14]

   [13]Migration Act 1958 (Cth), s 5J(1).

   [14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

8. If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[16] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[17]

   [15]Migration Act 1958 (Cth), s 36(2)(a).

   [16]Migration Act 1958 (Cth), s 36(2)(aa).

   [17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

9. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]

   [18]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

10. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]

    [19]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

11. The Applicant claims to be a citizen of Fiji and she provided a copy of her passport to authenticate this claim.[20] The Tribunal accepts the Applicant’s identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[21]

    [20]Applicant’s passport issued in Fiji [in] 2017.

    [21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

12. Based on the evidence, the Tribunal is satisfied the Applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[22]

    [22]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

13. In accordance with Ministerial Direction No. 84 made under the Act,[23] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    APPLICANT’S BACKGROUND AND CLAIMS

    [23]Migration Act 1958 (Cth), s 499.

    Background

14. The Applicant is a citizen of Fiji and has family living in Fiji, including her immediate family consisting of her parents and [specified family members]. She was educated to [grade], and then attended college, eventually studying to be [an occupation 1]. For a period of 18 years from 2000 to 2018, she was employed within [related] industry in Fiji, mainly as [an occupation 1].

15. In 2011 she married her husband and they were still married when she started travelling to Australia. However, around this time, she discovered that he was having an affair with another woman. In June 2020, her husband filed an application in the Fijian Family Court at Nadi for a divorce. The Applicant explained that the Family Court of Fiji has since ratified that application and they are now divorced.

16. In early 2018, the Applicant decided to travel to Australia and the following chronology of events took place.

13 March 2018

Visitor visa granted to the Applicant. This visa allowed for multiple entries into Australia and was due to expire on 10 January 2019. There were no conditions attached to the visa which allowed her to be employed during her stay in Australia.

[April] 2018

The Applicant arrived in Australia and stayed for approximately six weeks. She told the Tribunal that she took holidays from her job as [an occupation 1] when she made this trip.

[May] 2018

The Applicant returned to Fiji. She also returned to her employment as [an occupation 1].

[August] 2018

The Applicant arrived in Australia and stayed for approximately five weeks. She was still working as [an occupation 1] at the time and took holidays when she made this trip.

The Applicant also disclosed to the Tribunal that it was during her stay in Australia on this occasion that she discussed with a friend about making a Protection visa application so that she could stay in Australia.

[September] 2018	The Applicant left Australia and returned to Fiji. Again, she returned to her employment as [an occupation 1].
[November] 2018	The Applicant arrived in Australia. She told the Tribunal that prior to this trip, she voluntarily resigned from her job as [an occupation 1].
[January] 2019	The Visitor visa granted to the Applicant on 13 March 2018 expired.
14 January 2019	The Applicant lodged her application for a Protection visa.
21 January 2019	Bridging visa granted to the Applicant which expired on 12 April 2019. There were no conditions attached to this visa which allowed the Applicant to work in Australia.
12 April 2019	Bridging visa granted to the Applicant which expired on 3 September 2019. There were no conditions attached to this visa which allowed the Applicant to work in Australia.
3 September 2019	Bridging visa granted to the Applicant. The visa included a condition that allowed the Applicant to work in Australia.
18 October 2019	The Delegate made a decision to refuse the Applicant’s application.
13 November 2019	The Applicant lodged application with the Tribunal to review the Delegate’s decision.

Claims

1. When her application for a Protection visa was lodged with the Department of Home Affairs, the Applicant claimed to have a well-founded fear of returning to Fiji. She also claimed that if she returned to Fiji, there was a real risk that she would suffer significant harm or there was a real chance that she would suffer serious harm. A summary of the claims she made are:

   (a)She experienced three coups in Fiji which negatively affected many families, including herself;

   (b)The political turmoil has caused instability in the country;

   (c)She does not want to return to Fiji, as there are not many job opportunities in Fiji. There are many employment opportunities with good salaries for her in Australia;

   (d)She experienced harm before and after the last elections in Fiji. The youth of the country do not obey the law. They attacked the Ministers and their families by throwing stones at their cars and houses;

   (e)People do not have any rights as landowners. Their land is being taken by the government;

   (f)Although the army and the police officers were trained before the election, their resources are directed towards taking care of the security of the nation;

   (g)She was in Australia when the political disturbance happened in Fiji. After the Speaker of the Parliament passed away, there were threats on social media that the government will be led by the Attorney General of Fiji.[24]

   [24]As referenced within the Delegate’s decision dated 18 October 2019, page 2.

2. The Applicant’s evidence to the Tribunal was that she had been employed on a full-time basis in Fiji as [an occupation 1], and that it was a position which she had held for almost 18 years, although there were some interruptions to her work because of the down-turn of tourism to Fiji arising out of the coups in 2000 and 2006.

3. As outlined in the above chronology, when she applied for a Visitor visa and made her two trips to Australia in April 2018 and August 2018, the Applicant was employed as [an occupation 1] and decided to take holidays to make those trips. On each of the occasions she returned to Fiji, she went back to work as [an occupation 1].

4. The Applicant explained to the Tribunal that after travelling to Australia for the second time in August 2018, she decided that she wanted to stay in Australia to work. Her Visitor visa did not authorise her to work, so she discussed with a friend about how she could stay and work in Australia, and what was the best visa to apply for to allow her to work. At first, she did not know what type of visa she should apply for, but later decided to apply for a Protection visa. Her comments to the Tribunal were that notwithstanding that she arrived in Australia for the third and final time [in] November 2018, she did not make her application until 14 January 2019, which was four days after her Visitor visa expired, and approximately five months after she and her friend first pondered about what visa to apply for.               

5. She told the Tribunal that when she made her third and final trip to Australia, she voluntarily resigned from her position as [an occupation 1] knowing that when she went to Australia that she would make an application for a Protection visa.

6. When discussing the claims that she made in her application, the Applicant was frank with the Tribunal and admitted that none of the coups in Fiji impacted upon her, and nor was there any basis behind the claims for protection that she made. She also said that she was not harmed in any way; and she admitted to the Tribunal that the claims she made were only something that she put into her application to try and get a Protection visa.

   Discussion about claims

7. Notwithstanding the Applicant’s concession to the Tribunal that she had no claims for a Protection visa, the Tribunal is aware that in respect to Fiji’s economic position, the World Bank describes Fiji as an upper-middle income country. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours.[25]

   [25]The DFAT Country Information Report, Fiji, dated 20 May 2022, page 7, paragraph 2.7.

8. Recently, in December 2022 the Fijian general elections were held which resulted in a change of government. The previous prime minister, Frank Bainimarama (‘Mr Bainimarama’, held that position since the coup of 2006. Reports are that Fiji is now navigating a new chapter in its complex, and often rancorous, political history. Before those recent elections, there were deep concerns expressed about the strength of Fiji’s democracy. After the votes were cast, Fijians endured tense days that saw attempts to open old wounds as well as rising fears that a peaceful transition of power would be marred by vote-counting fraud or military intervention.

9. When no party won a clear majority in the 55-seat parliament, a coalition of three parties, being the People’s Alliance Party (PA), the National Federation Party (NFP), and the SODELPA formed a People’s Coalition government, with 29 seats. The formation of the People’s Coalition government in the last days of 2022 meant that Mr Bainimarama was out of power for the first time since 2006. Sitiveni Rabuka’s government has wasted no time in reversing numerous vestiges of Mr Bainimarama’s long tenure.[26] It is reported that the current political situation within Fiji remains stable.

   [26]A New Era in Fijian Politics, Centre for Strategic & International Studies, O’Brien P, 7 February 2023,

   CONCLUSION AND REFUGEE FINDINGS

10. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Fiji, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[27]

    [27]Migration Act 1958 (Cth), s 36(2).

11. The mere fact that the Applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear, or that it is well-founded. or that it is for the reason claimed. Similarly, because the Applicant claims she faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the Applicant to satisfy the Tribunal that all the statutory elements are made out.

12. The Tribunal is not required to make the Applicant’s case for her. It is her responsibility to specify all particulars of her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[28] Nor is the Tribunal required to accept uncritically any and all the allegations she makes.[29]

    [28]Migration Act 1958 (Cth), s 5AAA.

    [29]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

13. In assessing the Applicant’s claims and the evidence she gave to the Tribunal at the review hearing, the Tribunal accepts that the Applicant was being frank with her disclosures that there was no basis to the claims that she made. The Tribunal also accepts and finds that her motivation for making her application for a Protection visa was focused on securing a visa that allowed her to gain employment and stay in Australia.

14. For completeness, the Tribunal finds that the Applicant’s claimed fear of persecution has not been made on the basis of any race, religion, nationality, membership of any particular social group or political opinion. The Tribunal also finds that there is no basis for her claimed fear of harm as provided by section 5J(1)(a) of the Act in that there is not a real chance of her being subjected to persecution in Fiji.

1. Therefore, the Tribunal does not accept that the Applicant is a refugee as defined in section 5H of the Act, and nor has the Applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to her.

   COMPLEMENTARY PROTECTION CONSIDERATIONS

2. The Tribunal has considered the Applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed to Fiji, there is a real risk that she will suffer significant harm.

3. Having already concluded the Applicant does not meet the refugee criterion as provided by the Act,[30] the Tribunal has considered the alternative criterion.[31] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed to Fiji, there is a real risk that she will suffer significant harm as it is defined in the Act.[32]

   [30]Migration Act 1958 (Cth), s 36(2)(a).

   [31]Migration Act 1958 (Cth), s 36(2)(aa).

   [32]Migration Act 1958 (Cth), s 36(2A).

4. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the Applicant would suffer significant harm for any of the reasons he claims if she returned to Fiji. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[33]

   [33]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

5. Having considered all the Applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returned to Fiji now or in the reasonably foreseeable future she will be arbitrarily deprived of life; the death penalty will be carried out on her; she will be subjected to torture or to cruel or inhuman treatment or punishment; and nor will she be subjected to degrading treatment or punishment.

   CONCLUSION: REFUGEE CRITERION

6. Having considered all the circumstances as they apply individually and cumulatively to the Applicant, the Tribunal finds that there is not a real chance the Applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.

   CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

7. Having considered all the circumstances as they apply individually and cumulatively to the Applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Fiji, she will be exposed to a real risk of suffering significant harm.

   OVERALL CONCLUSION

8. For the reasons given above, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.

9. Having concluded that the Applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

10. There is no suggestion that the Applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, she does not satisfy the criteria in section 36(2) of the Act.

    DECISION

11. The Tribunal affirms the decision not to grant the Applicant a Protection visa.

    Wayne Pennell
    Senior Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958 (Cth)

    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.

    …