2004049 (Refugee)

[2022] AATA 2394

2004049 (Refugee) [2022] AATA 2394 (10 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004049

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Paul Noonan

DATE:10 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 10 June 2022 at 9.03am

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – political party – particular social group – single mother – human rights and democracy campaigner – education – employment – social media protests – delay in applying for protection – family violence claims – decision under review affirmed

LEGISLATION

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

CASES

MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2020 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 Vietnam, applied for the visa on 11 December 2018. The delegate refused to grant the visa on the basis that there is not a real chance of persecution of the applicant for a refugee reason or substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk she will suffer significant harm. The delegate was satisfied that the applicant’s country of nationality is Vietnam and the Tribunal is also so satisfied, on the basis of the biodata with respect to her Vietnamese passport, a copy of which is retained on the Department systems and file, and accordingly has assessed her claims with respect to Vietnam as the country of reference or receiving country for the purposes of this appeal.

3. The applicant appeared before the Tribunal on 22 February 2022 to give evidence and present arguments. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by videoconference hearing. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   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.

   Procedural history

10. [In] March 2018 the applicant arrived in Australia on a visitor visa. She subsequently applied for a Protection Visa (XA-866) on 11 December 2018.

11. In applying to the Tribunal for review of the delegate’s decision the applicant has supplied the Tribunal with a copy of the delegate’s decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant has made the following pertinent disclosures with respect to her background and profile in her written claims for protection. She has not been known by any other names. She was born on [date] at [a named location in] Nghean Province, Vietnam. She speaks, reads and writes Vietnamese and English. She does not have a religion. She has never been married. She maintains weekly contact with her parents in Vietnam. She works on farms in Australia. Prior to coming to Australia she worked in retail sales in Vietnam and was self-employed. Her education attainment extends to finishing secondary school however she has not undertaken any further studies.

13. In her written claims for protection the applicant made the following claims (in summary) with respect to fearing persecution should she be required to return to the Vietnam as follows:

    ·She was politically active in Vietnam and joined an opposition group in opposing the government and campaigned for human rights and democratic rights.

    ·Local authorities questioned her about her political activities, banned her from school, her friends and relatives, from seeking work and mistreated her family.

    ·She fears returning as the authorities may prosecute her and extort money from her and her family, especially if they see she has opposed them on [social media].

    ·She cannot relocate or access protection as it is the Vietnamese authorities that she fears harm from.

14. The delegate considered that country information reflects that the Vietnamese authorities target anti-government activists and human rights activists for monitoring and that they are frequently prevented from leaving the country however the applicant’s history and profile does not reflect she has come to the adverse attention of the authorities. The delegate also did not accept that any online content shared by the applicant on social media while in Australia (if she had actually done so), would come to the adverse attention of the Vietnamese authorities given the sheer number of social media users in Vietnam. As such the delegate considered that the applicant is not a refugee and also that she did not require complementary protection. For the following reasons the Tribunal has decided to affirm the delegate’s decision.

15. At the outset of the hearing the applicant confirmed her written claims were correct. The applicant also then proceeded to state that she has was married and it did not go well. She has [children] in Australia with her and she wishes that they can stay here with her as life is much better here for children than in Vietnam. The applicant did not claim that she left Vietnam because of her husband but stated that she had problems with her in-laws because they did not agree with the politically group that she joined. She confirmed her husband lives in Vietnam. She then claimed that the children she lives with are her children but not her husband’s. They were both born in Australia. They were born on [dates specified]. Their father is a Vietnamese man however he does not care for the children. Her parents currently live in Vietnam. She has one [sibling] in Vietnam. Currently she lives with a friend and helps look after her children while she works.

16. The applicant then stated that she left Vietnam with her former husband by plane as he came to Australia for some sort of work. After some time they had disagreements and he left her in Australia. She agreed that she obtained a passport in 2018 to leave the country.

    Political opinion

17. With respect to her political activities in Vietnam the applicant stated that she was protesting against the government by participating in street protests and on the internet. The Tribunal asked the applicant several times to identify the group she was politically involved with. The applicant stated that the group has dissolved, and she is not sure what they are doing and she cannot remember what they were called. When asked how often she protested on the street the applicant stated that she had done so on two or three times. When asked what the protests were about, she somewhat vaguely stated it was about some government decisions in regard to the land but did not elaborate. When asked if she came to the attention of the authorities because of her protesting the applicant stated that she did. When asked what happened, the applicant broadly stated that there were sometimes some altercations between protestors and police. When asked if she experienced any harm personally the applicant stated once or twice. When asked what happened she stated the police used violence against us for protesting. She then stated that there is no freedom of expression and you can’t say anything. When asked how she came to be involved in these protests she stated that she did not agree with the government decisions. When asked how she found out about the protests she stated that she saw them carrying slogans when walking. She then claimed that she found out about them on the internet. After this she claimed that the local authorities kept a close watch on her movements and this made it difficult to apply for a job.

18. The Tribunal put to the applicant that in her application for protection she stated that she was prevented from attending school and that the authorities mistreated her family and that she was questioned on many occasions by the authorities. The Tribunal put to the applicant that this is materially different to her evidence with respect to past harm that in fact the authorities just monitored her and made it difficult to apply for a job. The applicant submitted that she had not mentioned any other past harm because, as time had passed, she just wanted to forget about her past troubles with the authorities.

19. When asked if she engaged in online activities against the authorities in Vietnam the applicant said that she had. The Tribunal asked her what forum she was using and what she did. The applicant stated that she was sharing pictures that the group had created and also distributing leaflets. She did this through the [named] application. The Tribunal put to the applicant that it may find it difficult to accept that, if she was distributing leaflets, reposting content and participating in protests that she would not remember the name of the group. The applicant stated that she has simply forgotten due to the passing of time and the birth of her children.

20. The Tribunal noted that the applicant arrived in Australia in March 2018 but did not apply for protection until December 2018. Further that she had arrived on a tourist visa and as such she had spent time in Australia illegally. The Tribunal put to the applicant that it may find it difficult to accept that under such circumstances she would not apply immediately for protection if she genuinely feared harm should she be required to return to Vietnam. The applicant stated that she did not apply straight away is because she came here with her former husband. It was only when he left her that she begun to know about Australia and she found out about her protection options. The Tribunal put to the applicant that she had given evidence that she had accompanied her husband while he pursued business, which may indicate she came to Australia for that reason and not because she feared harm in Vietnam. The applicant simply stated that she did not feel safe to go back with the [children] as her in-laws would be unhappy with her and may abuse her. Further, she fears her children would be prevented from attending school like she was. In addition, she needs to stay in Australia to earn an income to support her [children] in Australia.

21. When asked, the applicant stated that since being in Australia, she has not been involved in any form of political activities. She confirmed that she has not been posting on [social media] or any other medium any political views of anti-Vietnamese government views in Australia. She also stated that she has no access to any old internet-based activity with respect to her claimed past activities.

22. The Tribunal put to the applicant that DFAT assesses that the authorities will prevent people from leaving the country if they are considered political dissidents and this is particularly the case at major international airports.[1] This may indicate that at the time of her departure she was of no adverse interest to the authorities and would continue to be of no adverse interest to them should she return. The Tribunal put to the applicant that overall, her evidence reflects a very low level of political involvement in Vietnam. This is reflected by the fact that she has never been arrested in the past and she was able to obtain a passport and depart Vietnam through a major airport. Further, since being in Australia, she has not engaged in any political activities. The Tribunal noted that this may lead it to conclude that she would not be of any adverse interest to the Vietnamese authorities. The applicant simply responded that she wished for her children to have a better life in Australia.

    [1] DFAT Country Information Report, Vietnam, 11 January 2022, p.32

23. The Tribunal has carefully considered the applicant’s political opinion claims and finds her evidence to be vague and unconvincing. It is clear that she left Vietnam legally and unhindered through a major airport and did so primarily for the purpose of accompanying her husband and not for fear of harm due to her political opinion. She now claims to have campaigned extensively for an opposition group campaigning for human rights and political reform but could not remember the groups name. The Tribunal does not accept her reasoning as plausible that she could not remember the group’s name due to time passing and the birth of her children. It has not been that long since she left the country and if he she had undertaken the extensive activities claimed for this claimed group the Tribunal would expect she would remember such a basic detail as the name of the group. This causes the Tribunal to doubt that she was ever politically involved. Further the Tribunal notes that the Vietnamese authorities allowed the applicant to leave unimpeded which strongly indicates, according to country information, that she had no adverse profile. Further, since being in Australia, by her own evidence at the hearing she has not undertaken any form of political activities or advocacy and also delayed applying for protection, even though she was in the country for a  considerable period of time prior and had entered only on a tourist visa. These factors cause the Tribunal to conclude that the applicant has no adverse profile with the Vietnamese authorities for reason of her political opinion.

24. On the basis of these considerations the Tribunal is satisfied that the applicant is of no adverse interest to the Vietnamese authorities for reason of her political opinion. The Tribunal is therefore satisfied that there is no real chance of serious harm to the applicant from the Vietnamese authorities or anyone else for reason of her political opinion, either now or in the reasonably foreseeable future, should she be required to return to Vietnam.

    Single or divorced woman with children

25. The Tribunal asked the applicant for more information with respect to her husband returning without her to Vietnam. The applicant explained that her now ex-husband had an affair and has now started a new family in Vietnam, which she heard from a friend, and she has had no contact with him for several years. She noted that in the past she also experienced some domestic violence. The Tribunal asked the applicant why she did not disclose her husband’s existence on her protection claim. The applicant stated that her English language was poor and she was not able to express all her thoughts in the application. The Tribunal put to the applicant that, as she has not had any contact from her husband in many years and he has started a new family, that this may reflect that he has no adverse interest in her. The applicant somewhat confusingly responded that there were problems with her former in-law’s business and her husband and they did not like her political activities and she just wants to stay in Australia.

26. The Tribunal put to the applicant that DFAT assesses that single and divorced poor women may receive assistance from the authorities with bills or living expenses which may indicate she would receive assistance should she require it.[2] When asked if she could return to live with her family the applicant submitted that she is afraid her parents won’t be happy with her as she left her former husband and will not accept her as a single mother. Further single mothers are subject to rumours and bad impressions. When asked if she has evidence of her children’s births the applicant stated that she has one birth certificate but is still waiting on the other one. The applicant subsequently sent the Tribunal a copy of an Australian birth certificate for a [child] born to her and a [Mr A] on [date] at [a named hospital]. The applicant informed the Tribunal that she believes [Mr A] is in prison at the moment. The applicant did not submit the claimed second child’s birth certificate as requested.

    [2] DFAT Country Information Report, Vietnam, 11 January 2022, p.23

27. The Tribunal accepts that, should she be required to return to Vietnam, the applicant would do so as a single or divorced mother of at least one young child born to a father who resides in Australia. The Tribunal is satisfied that a single or divorced woman with a child is a particular social group for the purposes of s 5J(1). The Tribunal notes that the applicant’s child was born after she lodged her written claim for protection and accepts that this is a reasonable explanation for why her fears with respect to returning to Vietnam as a member of this particular social group were not raised at that point in time. The Tribunal notes the following relevant country information:

    Vietnamese culture emphasises traditional family values, but some women, particularly those of higher education and means, may choose to be single. It is possible to get a document from a local authority that declares that a person is single, similar to a marriage certificate, and there are no legal barriers to being a single female-headed household.

    In practice, women who are single come under what in-country sources call ‘intense pressure’ to marry. One source described being single as ‘odd’. The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating’. This pressure is likely to be from families but may also be on a societal or community level. In country-sources told DFAT that many women are ‘afraid’ of being divorced due to societal and cultural factors.

    Divorce is possible but stigmatised. In-country sources told DFAT that this stigma is changing for younger people, who are more open to divorce, but DFAT assesses that the stigma is strong for most Vietnamese women. That stigma can result in family pressure and shame, but can also have economic consequences. Suitable rental accommodation may be unaffordable or not exist, particularly in rural areas because of the assumption that couples will buy property or live with their parents and in-laws.

    Poor single women may receive assistance from the authorities, for example assistance with bills or living expenses. These services may be limited by factors that limit all social welfare programs; for example, women who work in the informal sector may not receive unemployment insurance and those who are internal migrants may have difficulty accessing services where their household registration is not in the place where they live.

    DFAT assesses that single women and divorcees do not face official discrimination, but do face a moderate risk of societal discrimination.[3]

    [3] DFAT Country Information Report, Vietnam, 11 January 2022, p.23

1. The Tribunal accepts that the applicant’s husband left her in Australia and has started a new family. As he has moved on in his life the Tribunal also does not accept the applicant’s speculative claim that her ex-in laws would have any ongoing adverse interest in her. She does not have children related to them and there is no plausible reason they would continue to be interested in her. She emphasised that he was not violent to her in Australia and they just had an argument causing him to leave. She has not received any threats from him or his relatives since he left. The Tribunal notes that the applicant also did not claim to fear her ex-husband or his relatives in her written claims for protection. The Tribunal is satisfied that there is not a real chance of serious harm to the applicant from her ex-husband or his relatives should she return to Vietnam.

2. The applicant also expressed concern that her family would not be happy with her coming back as a divorced woman with children. The Tribunal is concerned that the applicant merely speculates as to her family’s stance. She has had at least one child for some years now and has not received any expression of disapproval or threats from her family. Further the applicant emphasised that she just believes that she can provide a better life for her children if they are raised in Australia as opposed to Vietnam. There is nothing in country information to suggest that the applicant would be subjected to serious harm by her own family for reason of her membership of the particular social group. While there might be feelings of shame due to societal pressure the Tribunal simply does not accept that she would be without any assistance from her family should she return. If there was a real chance that this would be the case the Tribunal would expect that the applicant would have been very clear in her evidence about this and not vaguely speculate that her family may not be happy. Further, it is clear from country information, that there is no official discrimination against this particular social group and that support services are available from the authorities in a non-discriminatory manner.

3. When considering the country information as a whole, and the applicant’s individual circumstances and evidence, the Tribunal accepts that she may face some societal discrimination and stigma because of her membership of this particular social group. However, she will return to an area lived in by her parents who can assist her and she can then access support services and resume work as she has in the past. The Tribunal is therefore satisfied that there is no real chance of serious harm to the applicant for reason of her membership of the particular social group single or divorced woman with children from the authorities or anyone else, either now or in the reasonably foreseeable future, should she be required to return to Vietnam.

   Complementary protection

4. The Tribunal has also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.

5. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if she returns to Vietnam. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk that the applicant will suffer significant harm for reason of her political opinion or her membership of the particular social group single or divorced woman with children.

   Overall conclusions

6. 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).

7. 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).

8. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

   Paul Noonan
   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.

   …