2000248 (Refugee) - [2024] AATA 4163

2000248 (Refugee) [2024] AATA 4163 (6 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Karyn Anderson (MARN: 9685590)
CASE NUMBER: 2000248

COUNTRY OF REFERENCE: Brazil
MEMBER:Sydelle Muling
DATE:6 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 06 September 2024 at 11:29am

CATCHWORDS
REFUGEE – protection visa – Brazil – fear of killing – period of unlawful residence – state protection – sole responsibility for Australian citizen child – best interests of the children – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 425, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
BBK15 v MIBP (2016) 241 FCR 150
Randhawa v MILGEA (1994) 52 FCR 437
SZAFC v MIMIA [2003] FCA 1405
SZAFC v MIMIA [2003] FMCA 380
SZAML v MIMIA [2004] FMCA 267
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
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 January 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Brazil, applied for the visa on 9 February 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a protection visa.
On 5 August 2024, the Tribunal wrote to the applicant and advised him that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal invited the applicant to appear before it on 4 September 2024 to give oral evidence and present arguments.
On 30 August 2024, the Tribunal received confirmation from the applicant’s representative that the applicant consented to the Tribunal making a decision without him appearing before it at hearing.
In these circumstances the Tribunal is satisfied the applicant has consented to it deciding the review without him appearing before it and therefore considers it appropriate to determine the review without a hearing in accordance with s 425(2)(b) of the Act.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
CLAIMS AND EVIDENCE
The applicant claims to be a citizen of Brazil who was born on [date] in [Town 1], in Mato Grosso do Sul, Brazil. According to his protection visa application, the applicant resided in [Town 2], Mato Grosso do Sul and in [Town 3], Sao Paulo. He completed high school and further higher education including a [specified] course and is fluent in Portuguese and English. The applicant was employed in Brazil at a [business 1] from March 1995 to June 1997 and September 1998 to April 2000 and at a [business 2] from June 2001 to February 2008. He departed Brazil legally [in] April 2008, arriving in Australia on the [following day] on a student visa. The applicant was married [in] January 2006 and divorced [in] October 2013. He has a daughter who was born on [date] and is a citizen of Australia.
The applicant’s claims were outlined in an attached submission made by his representative, summarised as follows:
·The application for protection is being lodged so that the applicant can ultimately seek intervention of the Minister pursuant to s 417 on the basis of his unique and exceptional circumstances.
·The applicant travelled to Australia with his wife and child [in] April 2008 as holders of Independent ELICOS Sector (subclass 570) visas. The applicant was to study an Intensive English (Beginners to Advanced) course at [a named college]. He went on to study [another course] at [another college].
·On 25 February 2011 the applicant received notification that his student visa would be cancelled. At the time the applicant had fallen into a deep depression, as he was coming to terms with his separation and impending divorce from his then-wife.
·The applicant became unlawful since the expiry of his student visa in 2011 and is therefore unable to access the Minister’s personal intervention powers.
·The applicant has an Australian citizen child who he shares care for with her grandparents, who are Australian citizens. The applicant is seeking Ministerial intervention in order to remain in Australia with his daughter.
·The applicant is concerned about the human rights violations that persist throughout Brazil and the disconnection between Brazil’s pursuit of its economic interests and human rights abuses including police brutality, use of torture and ill-treatment and prison overcrowding.
The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 6 January 2020.
On 20 May 2021, the Tribunal received a legal submission from his representative, in which it was acknowledged that the applicant may not meet the eligibility criteria for a Protection (subclass 866) visa. The representative explained that the applicant applied for a protection visa as he had no other visa options available to him, with a view to seeking a review of the refusal decision by the Tribunal, and thereafter request the intervention of the Minister under s 417 of the Act. The representative provided a summary of the applicant’s background and immigration history and updated information regarding the applicant’s situation including that the applicant’s daughter has been living permanently with him since the age of [age]; shortly after his daughter began residing with him, his ex-wife’s son to another partner also moved in to live with him and his daughter; and he is the primary carer of his daughter and his ex-wife’s son and has sole responsibility for both children. The representative also provided detailed submissions addressing the Minister’s guidelines for intervention pursuant to s 417 and the applicant’s circumstances which they contend fall within the guidelines on the basis of his unique and exceptional circumstances, in particular the strong compassionate circumstances, that if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to the applicant’s children who are both Australian citizens and members of the applicant’s immediate family.
Attached to the submission were a number of documents in support of the application including a detailed statutory declaration made by the applicant; photographs of the applicant and his children together and with others; school reports and other documentation for both children; and letters of support including from the applicant’s ex-wife’s parents and brother.
The Tribunal received a further submission from the applicant’s representative dated 28 August 2024 in which it was stated that the applicant fears returning to Brazil due to the high crime rate and human rights violations and lack of police protection from Brazilian authorities, exposing him to a high chance of significant harm, including death. It was acknowledged that the applicant’s claims do not tend to engage the “convention nexus” under s 5J(1)(a) as he does not “per se” claim to fear harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion. Rather, it was submitted that his claims engage the complimentary protection criterion under s 36(2)(aa) because he will suffer significant harm, in particular arbitrary deprivation of his life, as a potential victim of violent crime in Brazil. The applicant’s representative also provided an update of the applicant’s circumstances and further submissions addressing the Minister’s Guidelines for intervention under s 417, in particular section 4 (cases with unique and exceptional circumstances) and section 5 (additional considerations) of the guidelines. Also attached was a further statutory declaration made by the applicant discussing his fear of returning to Brazil and his request to be referred to the Minister.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether there is a real chance that, if he returns to Brazil, the applicant will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Brazil, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a valid Brazilian passport and states that he is a national of Brazil. The Tribunal accepts on the evidence before it, namely a copy of the applicant’s passport, that Brazil is the applicant’s country of nationality and receiving country for the purposes of complementary protection.
The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is ‘well founded’. Similarly, that an applicant claims to face 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 of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicant's case for him/her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437 at 451).
The applicant claims to fear returning to Brazil due to the lack of safety, high crime rate, human rights violations, police brutality and lack of protection from the authorities. In his most recent statutory declaration, the applicant stated that he believes he could be killed by criminals “on any given day in Brazil”. He claimed that there is no safety in Brazil, the streets are dangerous, and people kill randomly and for nothing.
The Tribunal refers to the country information cited in the applicant’s representative’s submissions dated 19 February 2016 and 20 May 2021 and accepts that despite improvements made in terms of Brazil’s human rights, the country continues to experience serious human rights challenges. It also notes the information referred to from various sources including the Australian Government Smartraveller Advice for Brazil regarding the prevalence of violent crime in the country.
The Tribunal notes the applicant’s belief that there is a very real possibility that he could be killed at any place and at any time. However, the Tribunal finds that the applicant has not articulated in any detail why he holds this belief other than discussing the pervasiveness of crime in Brazil and the general human rights situation in the country. The applicant has not indicated or elaborated as to whether he had been directly impacted by crime or human rights violations in the past prior to his departure from Brazil in 2008 or why he believes that as an individual he will face human rights abuses such as torture or ill-treatment or police brutality on his return. While the applicant claimed the fact that he had lived in a more developed country for many years may heighten the risk of him being a target of crime because he will be perceived to have money, the applicant has not elaborated as to how criminals would know that he had returned from Australia. The Tribunal notes the applicant’s claim in his recent statutory declaration that he would have to explain his past, particularly when looking for accommodation or employment. However, it is not apparent how this would result in criminals becoming aware of the applicant’s previous residence in Australia. The Tribunal finds the applicant’s claims in this respect to be speculative.
Although the Tribunal accepts that there is a prevalence of crime in Brazil, as well as other serious human rights violations including arbitrary killing and torture, the Tribunal finds the applicant has provided limited detail and context about his personal situation. The Tribunal finds that there is insufficient evidence to satisfy it that the applicant faces a real chance of serious harm from criminals or as a result of human rights violations if he returns to Brazil.
Further, the Tribunal notes the applicant’s representative’s acknowledgment in the submission dated 28 August 2024 that there does not appear to be a causal connection between the harm feared by the applicant and the refugee grounds set out in s 5J(1)(a). As outlined above under the heading Criteria for a protection visa, a refugee is person who has a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.
The Tribunal observes that the applicant acknowledged in his recent statutory declaration that these problems are faced by many people in Brazil and that he would not be the number one target. However, as discussed above, the applicant claimed that the risk will be higher for him if it is known he has returned from living in another more developed country for so many years because people will think he has money and that will make him a good target. In light of this assertion, the Tribunal has considered whether Brazilians who have returned from overseas or Brazilians who have returned from living in a more developed country and who are perceived as having money constitutes a particular social group. The Tribunal does not accept there is anything before it to suggest that there is a relevant identifiable social unit with unity of characteristics, attributes, activities, beliefs, interests, or goals which set these groups apart from society at large[1].
[1] Applicant A v MIEA (1997) 190 CLR 225 at [264] per McHugh J and at [241] per Dawson J. In SZAFC v MIMIA [2003] FMCA 380, the Court stated at [17] to [18] that it would be difficult to construct a particular social group ‘persons returning from Australia or some other foreign country who were perceived as having made money and who had debts in India’. Agreed on appeal: SZAFC v MIMIA [2003] FCA 1405. See also SZAML v MIMIA [2004] FMCA 267 in which the Court found that the Tribunal had not erred in failing to consider whether, or to find that, Bangladeshis who live abroad (and are presumed to be wealthy) constitute a particular social group at [27].
While the Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm from criminals or as a result of human rights violations if he returns to Brazil, it also does not accept that the applicant’s fear of harm based on the high occurrence of violent crime and human rights violations in Brazil is for any of the reasons outlined in s 5J(1)(a). Nor does it accept that there is any evidence before it to suggest that the state would fail to provide the applicant with protection for one of the five reasons set out in s 5J(1)(a).
The Tribunal therefore does not accept that the applicant has a well-founded fear of persecution pursuant to s 5J(1) of the Act.
COMPLEMENTARY PROTECTION
As the Tribunal does not accept that the applicant is a refugee as defined in the Act, the Tribunal has considered the alternative criteria in s 36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Brazil, there is a real risk that he will suffer significant harm as exclusively defined in subsection 36(2A) of the Act.
The definition of significant harm in s 36(2A) of the Act, as set out in the attachment of this decision, incudes where a person will be arbitrarily deprived of life; or will have the death penalty carried out on them; or will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The Tribunal notes that in the applicant’s representative’s submission dated 28 August 2024, it was submitted that the applicant’s claims engage the complimentary protection criterion under s 36(2)(aa) because he will suffer significant harm, in particular arbitrary deprivation of his life, as a potential victim of violent crime in Brazil.

While the Tribunal accepts that there is a prevalence of crime in Brazil, as well as other serious human rights violations including arbitrary killing and torture, for the reasons discussed above, the Tribunal is not satisfied on the limited evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Brazil, there is a real risk that he will suffer significant harm including arbitrary deprivation of his life.
The Tribunal also notes that section 36(2B) qualifies s 36(2)(aa) by setting out circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country and it includes where the real risk is one faced by the population of the country generally and is not faced by an applicant personally. In BBK15 v MIBP the Federal Court held that the ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply.[2]
[2] BBK15 v MIBP (2016) 241 FCR 150 at [32].
Considering the information before it, including the country information cited in the applicant’s representative’s submissions and the applicant’s evidence that these problems are faced by many people in Brazil, the Tribunal finds that the risk of the applicant being a victim of crime, is a risk that is faced by the general population of Brazil and therefore s 36(2B)(c) applies.
Ministerial Intervention
The Tribunal has taken into consideration all the information before it and accepts that the primary intention for the applicant making an application for protection was to seek the Minister’s intervention pursuant to s 417 (which allows the Minister to substitute a decision of the Tribunal with a decision more favourable to an applicant, where the Minister thinks it is in the public interest to do so) on the basis of his unique and exceptional circumstances.
The Tribunal notes the applicant has been forthright and honest in his intentions in respect to this application. The Tribunal has considered the submissions of the applicant’s representative that there are strong compassionate circumstances that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to the applicant’s children, who are both Australian citizens and member of the applicant’s immediate family. The applicant has provided evidence that his children rely on him for all their care and needs. The applicant’s representative submitted that it would be hugely detrimental to the applicant’s children’s education, development and personal safety and security to be removed from Australia to Brazil for any period of time including for the purposes of going offshore for the lodgement of further visa applications by the applicant. Conversely, the applicant’s separation from his children if only he was to return to Brazil, for what could potentially be an unconscionably lengthy period of time, would have extremely damaging consequences to his children’s mental and emotional health and financial well-being, leading to irreparable harm to each of them.
Further, the Tribunal accepts the applicant’s representative’s submissions that the circumstance of this case also brings Australia’s obligations as a party to the Convention of the Rights of the Child (CROC), including the best interests of the child, into consideration. The Tribunal accepts on the evidence before it, including the letters of support from the applicant’s ex-wife’s family members, that the applicant has been the primary carer and main provider for his daughter since she was [age] years old and for his ex-wife’s son (whom he considers to be his child) since he was [age] years old. It accepts that the applicant does not want to be separated from his children. In this regard, the Tribunal notes the applicant’s representative’s submissions with respect to circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political rights into consideration, particularly issues of family unity. The Tribunal accepts that if the applicant is separated from his children this would not only have detrimental consequences to the children as individuals but also have a profoundly negative impact on the applicant’s family unit.
In light of the above considerations, in addition to the applicant’s over 16 years residence in Australia and his strong family ties here and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s 417 set out in PAM 3 “Minister’s guidelines relating to the Minister’s discretionary powers (sections 351, 417 and 501), the Tribunal considers it appropriate to refer this matter to the Department to be brought to the Minister’s attention.
CONCLUSION
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 s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sydelle Muling
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.
…