1933200 (Refugee)

[2024] AATA 1205

1933200 (Refugee) [2024] AATA 1205 (29 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Caitlin Caldwell

CASE NUMBER:  1933200

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Carolyn Wilson

DATE:29 February 2024

PLACE OF DECISION:  Adelaide

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 29 February 2024 at 3:59pm

CATCHWORDS

REFUGEE – Protection Visa – Afghanistan  – religion – Sunni Islam – race – Pashtun  - a land dispute with a distant cousin – was involved in producing non-halal food – actual and imputed political opinion – as being opposed to the Taliban – membership of the particular social group – a returning failed asylum seeker from the West – there are not effective protection measures available –  applicant’s fear of persecution is well-founded – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91, 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 on 30 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Afghanistan, applied for the visa on 19 June 2017.

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

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

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: 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).

7. 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.

8. 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

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant claims to be a citizen of Afghanistan. In support of this claim he provided a copy of his Afghan passport and showed the delegate his Afghan identity document (taskera) at his interview. I find the applicant is an Afghan citizen. I have assessed his claims against Afghanistan as his country of nationality and his receiving country.

11. The applicant arrived in Australia on [date] March 2017 as the holder of a Sponsored Family (Visitor) visa. On 19 June 2017 he lodged an application for a protection visa, making the following claims:

    ·     He was born in Laghman province, Afghanistan. His ethnicity is Pashtun and his religion is Sunni Islam. He is married with 5 children.

    ·     In 1988, [he] moved with his family to Pakistan due to the security situation in Afghanistan at that time.

    ·     From 2010 he started working for a [Product 1] company based in Kabul, sometimes commuting there for work from Peshawar, Pakistan. He introduced new technology from Pakistan [and] became well-known for this work. He advised other businesses about the technology and [farming], and gave interviews that were [broadcast].

    ·     In 2010 rumours started that the company’s [Product 1] was non-halal. Between 2012 and 2017 he was threatened multiple times by the Taliban for this reason.

    ·     The applicant was involved in a land dispute with a distant cousin [Mr A], who was also a [member] with the militia group Hezb-e Islami Gulbuddin (HIG). The applicant says his father and uncle inherited significant farmland from his grandfather, and the farms were a lucrative source of income that supported them and extended family. [Mr A] seized the farmland for himself but in 1997 the applicant’s family got the land back through the courts. [Mr A] seized the land again in 2001 when the Taliban was overthrown and the then new Afghan government ignored such incidents as part of their strategy to shore up their support from former militia groups. The applicant’s family sought local government assistance in the matter, but his brother-in-law was shot by persons associated with [Mr A]  or the HIG in retaliation. In 2013 the applicant was attacked in Pakistan and threatened he must formally sign over ownership of the land to [Mr A]. The applicant felt unsafe in Pakistan and fled with his wife and children to Kabul, where he felt safer. Although he wasn’t harmed in Kabul he continued to receive threatening messages from [Mr A].

    ·     His visit to Australia in 2017 was meant to be a temporary visit. He decided to stay and seek protection when he learnt the HIG had signed a peace agreement with the then Afghan government. He feared the HIG were more powerful than before, could operate without impunity, and that HA could misuse this power to target him.

    ·     He fears returning to Afghanistan because he will be targeted by the Taliban for the past rumours that he was involved in producing non-halal [Product 1], his political opinion as being opposed to the Taliban, and for being a returning failed asylum seeker from the West.  He also fears [Mr A] will continue to see him as a threat to the family farmlands. He fears [Mr A]  and the HIG are in a position to target him for harm because they are aligned with the Afghan government.

12. After interviewing the applicant, and being provided with evidence of [interviews] he did in [Afghanistan], the delegate accepted the applicant was involved in a  [Product 1] business. The delegate also accepted he was threatened by the Taliban after rumours circulated that the [Product 1] was non-halal. However the delegate did not accept the Taliban had an ongoing adverse interest in the applicant. The delegate also accepted there had been a land dispute with [Mr A], and that [Mr A]  was a member of the HIG. However the delegate considered HIG was no longer an active militant group, had transformed into a political group, and did not accept the HIG would have interest in targeting the applicant for a historic land dispute or any imputed political opinion.

13. I have listened to the applicant’s interview with the delegate, and considered the evidence he provided in support of his claims including court documents regarding the land dispute and transcripts and [recording] of his [interviews] for the [Product 1] business. I have come to the same conclusion as the delegate that his oral and documentary evidence regarding the existence of a family land dispute and his public profile with the  [business] are credible. I accept he received adverse attention from the Taliban due to rumours that the [Product 1] business may be non-halal. I accept it is plausible that the relative with whom his family had the land dispute was involved in the militia group HIG, as this in part explains how that relative was able to seize the land, even after a court had ruled in favour of the applicant’s family. 

14. In August 2021 the applicant provided submissions to the Tribunal arguing the takeover by the Taliban in Afghanistan increased the risks for him if he was returned to Afghanistan.  He said he was a moderate Muslim who was opposed to the fundamentalist Deobandi school that the Taliban advocated for. He said that because of his political views and his time in a Western country he would be viewed as a political opponent of the new Taliban Afghan government. He conceded his decade old probllem with the Taliban arising from allegations of non-halal [Product 1] would not be reason enough for the Taliban to target him now.  However, he argues his past issue with the Taliban has given him a profile. He also says [Mr A]  has now joined the Taliban and has significant power in Afghanistan for this reason, although he does not provide evidence of this or explain how he knows this to be the case.

15. There have been significant changes in Afghanistan since the applicant left in 2017. Following the announcement by the United States in April 2021 that they would withdraw their troops by September, the Taliban launched an offensive against the Afghan government. Over the summer months of 2021 the Taliban swept through Afghanistan taking control of several districts including the northern provinces and districts surrounding the provincial capitals. Key cities fell to the Taliban as Afghan security forces surrendered. On 15 August 2021 President Ashraf Ghani fled the country and the Taliban took control. The Taliban declared the creation of the Islamic Emirate of Afghanistan (IEA) and their intention to form a new government. To date no state has recognised the IEA or its de facto government. Although levels of armed violence dropped immediately after August 2021, compared to previous years of conflict, there has been an increase in security-related incidents since August 2022. Crime levels have increased in the face of the deteriorating humanitarian and economic situation, and the security situation is evolving. The Taliban rule has been marked by repression of all forms of opposition, and their implementation of a strict interpretation of sharia.[1]

    [1] DFAT Thematic Report on Political and Security Developments in Afghanistan, 14 January 2022; EUAA, Afghanistan Country Focus, December 2023.

16. Landinfo reported in 2022, that there is little relevant knowledge of what the situation is for returnees perceived as westernised as there had been no forced returns from Western countries since the Taliban takeover.[2]

    [2] Landinfo, Afghanistan: Departures and returns after Taliban’s takeover of power. 29 September 2022.

17. In January 2022 the Australian Department of Foreign Affairs and Trade (DFAT) reported that shortly after it took power in August 2021 the Taliban issued an amnesty for all potential opponents and expressed a wish to govern in an inclusive fashion.  Prior to August 2021 the Taliban had openly targeted Afghans of all ethnicities associated with the government or the international community. The amnesty was issued in recognition that they were ill-prepared to run a government and needed people with experience.  However, in spite of the amnesty, there are reports it was unevenly respected and some violence has occurred as a result of local vendettas.[3]

    [3] DFAT Thematic Report on Political and Security Developments in Afghanistan, 14 January 2022;

18. The Special Rapporteur reported in February 2023 that the human rights situation in Afghanistan had worsened since the previous report a year earlier. The report noted serious challenges to the rule of law and credible reports of suppression and extrajudicial executions and torture. The Special Rapporteur expressed serious concerns regarding the ongoing targeted and revenge killings of former Afghan National Defence and Security Forces and prosecutors serving with the former government, despite the declared general amnesty. The report raised a climate of impunity and continued failure to hold officials and commanders accountable for serious violations of international human rights and humanitarian law, a trend that preceded the Taliban regime and has continued.[4]

    [4] Report of the Special Rapporteur on the Situation of Human Rights in Afghanistan, 9 February 2023.

19. The European Union Agency for Asylum (EUAA) reported in December 2023 that senior Taliban officials called upon Afghans to stay in Afghanistan and have created obstacles for people wanting to leave. Millions of people have crossed the borders of Afghanistan to and from neighbouring countries Pakistan and Iran. In 2022 over 3 million people returned from Pakistan to Afghanistan, however 3.5 million people also crossed the border from Afghanistan to Pakistan.. EUAA reported there is no information available of individuals being deported or returned from the European Union since the Taliban takeover. Western states have halted deportations to Afghanistan and the International Organisation for Migration (IOM) has suspended activities facilitating or accompanying returns to Afghanistan. Regarding the treatment of ‘westernised’ Afghans, the Taliban have stated an aim to ‘purify’ Afghan society and eject foreign influence from the country. The Taliban have issued instructions against trimming beards or wearing Western-style clothing, and have invested vast resources in building mosques and madrassas across Afghanistan. Their assault on Western style education is also part of the project to ‘purify’ Afghan society. Whilst the lack of returnees from Europe means it is not possible to comment on how such individuals may be treated, previous failed asylum seeker returned from Europe were said to have faced suspicion and questions as to what extent they had been ‘contaminated’ by Western ways.[5]

    [5] EUAA, Afghanistan Country Focus, December 2023.

20. The Office of the Commission General for Refugees and Stateless Persons Belgium (aka CEDOCA) reported in December 2023 on migration movements of Afghans since the Taliban takeover. The official reports from the de facto Afghan government are that they do not harbour any hostility or resentment and encourage Afghans to return to their country. The Taliban’s Foreign Minister said on Tolo News in May 2023 that ‘all Afghans are free to travel abroad but they should not use the system to secure asylum’.  On World Refugee Day on 20 June 2023 the Taliban’s Minister of Refugees and Repatriations called upon all Afghans living abroad to return to Afghanistan. CEDOCA further reported:

    The 2023 Dutch Country Report on Afghanistan indicated that it is unclear as to what potential problems, if any, returning Afghans might face and how they would be treated upon return to Afghanistan. This Country Report on Afghanistan described the information on this as sparse and purely anecdotal. According to this Country Report on Afghanistan, it is not clear whether factors such as whether or not the person has left Afghanistan illegally, the ethnicity of the person returning, any residence in Europe or another Western country or in one of the neighbouring countries (such as Iran and Pakistan) play a role in whether or not problems would be experienced when returning to Afghanistan or would manifest in a difference in treatment when returning to Afghanistan.

    One source, cited in the 2023 Dutch Country Report on Afghanistan, stated that there was no reliable information available on the treatment by the Taliban of people voluntarily returning to Afghanistan. The information on this is described as limited and anecdotal. Other sources cited in this report state that they are not aware of any problems or difficulties with the de facto authorities in returning registered or undocumented refugees from neighbouring countries. According to another source cited in this report, there is always a chance, but not necessarily in each individual case, of problems in returning for people who left as economic refugees. Prominent individuals with certain profiles (such as former ANDSF personnel, for example) or people who already had certain problems before leaving Afghanistan could face retaliation upon their return. The source did not speak of any consistently occurring problems, but did state that such problems can never be ruled out. The same source claimed that no information was available on the treatment by the de facto Taliban authorities of people who are forced to return from a European or Western country, as there are hardly any such cases known.

    According to a Freedom House report published in January 2023, in terms of the profile of human rights defenders, the Taliban would consider certain factors such as having received a Western education, having worked for a Western organisation, wearing Western-style clothing and speaking English as indicators of association with the “enemy”.[6]

    [6] Office of the Commission General for Refugees and Stateless Persons (Belgium), CEDOCA, Migration movements of Afghans since the Taliban takeover of power, 14 December 2023.

21. CEDOCA report that IOM informed them in July 2023 that they have suspended assistance for voluntary returns to Afghanistan because in their assessment there is ‘no safe environment for return’. IOM also anticipated the conditions that led to this assessment  will remain unchanged for the foreseeable future and will likely  deteriorate further due to the multi-layered crisis in Afghanistan. Other sources told the CEDOCA that people who oppose the Taliban are considered ‘instruments of Western influence’ will be seen as a problem upon return to Afghanistan. Afghans who sought asylum in Western countries are perceived by the Taliban to have discredited them.[7]

    [7] Ibid.

22. The CEDOCA also referred to comments by an academic specialising in Afghanistan at a Danish Refugee Council conference on the situation in Afghanistan since 2021:

    The general attitude within the Taliban is that Afghans should stay in Afghanistan to contribute towards building up the country with their knowledge and skills. Schuster claimed to have learned that some voices within the Taliban have a negative attitude towards people who have fled the country. She referred to certain profiles of people, such as former employees of international NGOs, people who worked for the former government or in former ministries, former ANDSF personnel, human rights organisation employees or media workers who left the country and are considered “traitors” by the Taliban…Not everyone who left Afghanistan is at the same risk upon return. She knows of people who go back for various reasons, such as family visits or business/professional reasons, and that this is possible, that these people do not have any problems in doing so. According to Schuster, there is a difference between people who return voluntarily and those who are forced to return. The latter group, she said, would be at greater risk. In relation to this, Schuster indicated that there may be a negative perception towards people who left Afghanistan, sought asylum in a Western country and were then later sent back to Afghanistan. She claimed to know of cases where these returnees were viewed with suspicion and stigmatised due to the assumption that they may have been “contaminated” by Western influences during their stay in a European or other Western country. She explained how she herself has seen how some Afghans, upon their return from the West, hid the fact that they had not returned voluntarily, to avoid the presumption that they were deported because their migration had been a failure, or because they had committed a crime or similar… The most difficult thing about Afghanistan is the great uncertainty that exists in many respects. Among other things, she referred to the possible differences in interpretation of the rules by different Taliban members. This makes it difficult to find reliable information about what is really happening on the ground. [8]

    [8] Ibid.

1. As the country information above makes clear, there is a lack of information regarding the risks for returning failed asylum seekers form Western countries, because since the Taliban takeover there have been so few returning from the West. Whilst the Taliban have made public statements encouraging all Afghans to return and publicly stating returnees will not be mistreated, I have given weight to the UNHCR’s most recent Guidance Note on Afghanistan in which it:

   Calls on decision-makers to give due weight to the uncertainty and unpredictability inherent in the modalities adopted by the de facto authorities for issuing decrees, coupled with the ongoing uncertainties regarding the applicability of Afghanistan’s previous legal framework. UNHCR considers that these circumstances render it particularly difficult to evaluate a future risk of persecution based on the currently available information on the human rights situation in Afghanistan, and in particular to conclude with the requisite level of confidence that an Afghan asylum applicant would not face a real risk of persecution upon return to the country of origin.[9]

   [9] UNHCR, Guidance Note on Afghanistan – Update 1, February 2023

2. The applicant claims that if he is returned to Afghanistan he will have an imputed political opinion as being opposed to the Taliban for reason of returning from a Western country. I note the applicant has been living in a Western country for 7 years and I accept this may give rise to an imputed political opinion as being opposed to the Taliban. Having listened to his interview with the delegate and considered his written claims and submissions, I also accept he has an actual political opinion of being opposed to the Taliban. There is nothing to suggest he has a high profile as someone opposing the Taliban, but I accept his profile as a returnee from the West is enhanced as someone previously of adverse interest to them for suspicion he was involved in the production of non-halal [Product 1]. Given the uncertainty of how people opposed Taliban who are returning from long stays in Western countries may be treated, I cannot be satisfied the applicant would not be targeted for harm. particularly in circumstances where he has previously had issues with the Taliban. Having regard to the country information and the applicant’s individual circumstances as a returnee from the West who was previously of adverse interest to the Taliban, I consider his chance of facing harm on return to Afghanistan is not too remote to amount to a real chance.

3. I find the applicant faces a real chance of harm for the cumulative reason of an actual and imputed political opinion as a person opposed to the Taliban for reason of his time spent in a Western country seeking asylum and the past adverse interest in the applicant for reason of his profile with the [Product 1] business accused of providing non-halal [Product 1]. I find his actual and imputed political opinion is the essential and significant reason for the persecution. I find the harm the applicant faces amounts to serious harm as it may include significant physical mistreatment or loss of life or liberty. I find the persecution would involve systematic and discriminatory conduct.

4. The applicant lived in Pakistan from 1988 to 2013 and provided a copy of his Proof of Residence card (PoR) issued by the UNHCR. The PoR enabled him to live temporarily in Pakistan for that period. There is no evidence to suggest he obtained Pakistani citizenship when he lived there, nor does holding a PoR provide such a pathway.[10] He does not have a current PoR and I accept he does not have a right to enter and reside in Pakistan.

   [10] DFAT, Country Information Report Pakistan, 25 January 2022.

5. In circumstances where the Taliban is the de facto government of Afghanistan I find there are not effective protection measures available to the applicant, and I find the real chance of persecution relates to all areas of the country.

6. For these reasons I find the applicant’s fear of persecution is well-founded. 

   CONCLUSION

7. 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).

   DECISION

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

   Carolyn Wilson
   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.

   …