2006667 (Refugee)

[2024] AATA 1107

2006667 (Refugee) [2024] AATA 1107 (9 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006667

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Melissa Haag

DATE:9 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 09 February 2024 at 12:35pm

CATCHWORDS
REFUGEE – protection visa – Fiji – victim domestic violence – second husband now deceased – fear of economic hardship – risk shared by the general population – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 3 April 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 Fiji, applied for the visa on 19 July 2019. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection.

3. The applicant appeared before the Tribunal on 11 January 2024 to give evidence and present arguments. The applicant did not request an interpreter. At the commencement of the hearing, the applicant told the Tribunal that she does not require an interpreter but said that she wants the Tribunal to speak slowly so that she can comprehend the questions. I confirmed that the Tribunal will speak slowly and is able to repeat or rephrase any information if required. I also offered to provide an interpreter and the applicant said it was not required. The Tribunal proceeded with the hearing in the English language. The Tribunal was satisfied that the applicant was able to provide meaningful responses and explanations to a range of questions and made comments on relevant issues demonstrating her understanding and that she was able to meaningfully engage in the hearing.

   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 at the end of 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 issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Fijian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Fiji and has been assessed on that basis by the Department. The Tribunal finds she is a Fijian citizen and has assessed her claims against Fiji as the country of nationality and the ‘receiving country’ for the purposes of s.5(1).

    The applicant’s personal background

12. The applicant is a [age]-year-old female from the village of [Village 1], [Province 1], Fiji.  At hearing, the applicant gave evidence that she grew up in a household comprising her parents and [number] siblings, [number] brothers and [number] sisters. She stated that both of her parents are now deceased.  The applicant said that one of her brothers lives in [City 1], Fiji and two live in her home village of [Village 1]. Her sisters live in other villages in Fiji.

13. The applicant gave evidence that she was educated until approximately 15 years of age and left school before she completed Form 4.  She moved to [City 1] where she lived with her cousin and commenced work at approximately 16 years of age.

14. At hearing, the applicant said that she met her first defacto husband when she was aged approximately 18 or 19 years of age and moved to live with him in his village for about 5 years.  When she separated from her first husband, she returned to [City 1] to live with her cousin.

15. The applicant told the Tribunal that in approximately 2010, she commenced living with her second husband, who she subsequently legally married [in] November 2015.[1] Her second husband was more than 20 years older than the applicant and ceased work in the military about one year after they met so the applicant provided the sole financial support to the family until 2017. From 2017 to 2019, her husband received a monthly military pension which also assisted to support the family. The applicant and her second husband did not have children but the applicant told the Tribunal they raised two children of the applicant’s sister from a young age.

    [1] Tribunal file, Fiji Marriage Certificate of the applicant and her second husband. 

16. The applicant said that she worked full-time in [City 1] in a [factory] as a [Occupation 1].  She stated that she also worked overtime to earn extra income. In Australia, the applicant said that she has worked at various [workplaces] as a [Occupation 1] and has been sending money back to her family in Fiji and to support her nephew to complete post-secondary studies in [Country 1].

17. The applicant visited Australia [from] September 2018 [until] November 2018 on a Subclass 600 visa.  She was granted a further Subclass 600 visa on 5 February 2019 and returned to Australia [in] May 2019.  She has not departed Australia since that time. On 19 July 2019 she applied for a protection visa and was granted a bridging visa.

18. The Tribunal found the applicant to be a credible witness.  The Tribunal accepts the above matters to be true.

    The applicant’s claims for protection

19. In the protection visa application, the applicant claims that she left Fiji to help her grow into a better person and that it could considerably improve her quality of life. She also claimed that she left because of the economic conditions in Fiji. Asked what would happen on return to Fiji, she said that nothing will happen to her but the low standards will affect her future.  In response to a question if she had experienced harm in Fiji, she answered no. Asked if she had tried to move to another part of the country to seek safety, she said that she has no intention of moving as she has her parents property to live in.

20. In response to a question in the visa application if she would be harmed on return to Fiji, she answered no.  Asked if the authorities would protect her, she answered no because the workers and trade unionists have been routinely targeted, harassed and physically assaulted. Asked if she could relocate, she stated that the economics in Fiji are not good and it would require money to relocate and she is not interested in doing so.

21. There is no record in the Department’s file of the delegate having interviewed the applicant in respect of her protection visa application. The applicant provided a copy of the decision record of the delegate to the Tribunal.

22. On 8 December 2023, the applicant was invited by the Tribunal in a pre-hearing form to provide any additional information or documents regarding her claims for protection. In an online response on 9 December 2023, the applicant indicated that she did not wish to add to or update her claims for protection or provide any other evidence. 

23. At hearing on 11 January 2023, the applicant handed the Tribunal the following documents:

    (i)    Passport of the applicant valid [until] 2025.

    (ii)   Supporting Statement of the applicant, unsigned, dated 11 January 2023.

    (iii)  Certificate of Marriage of the applicant and [Mr A], date of marriage [date] November 2015.

    (iv)  Employment Reference dated 27 December 2023 from [Company 1], confirming her employment as a [Occupation 1] in [location], Victoria.

24. In her written supporting statement provided to the Tribunal at hearing, the applicant outlines the economic conditions in Fiji. She stated that the Fijian Government does not care about ordinary Fijian’s. She states that the gap between rich and poor is increasing. She states that there is an increase in cost of living and reduction in social wages in Fiji and new infrastructure is almost non-existent.  She claims that the major cause of poverty in Fiji is the political instability and corruption, and lack of support to citizens living in rural areas.

25. At hearing, the applicant also gave evidence that she would face economic hardship on return to Fiji. She did not suggest that she was impacted by economic harm beyond the general population. The applicant handed the Tribunal three news articles and an online social media post in support of her claims of the poor economic conditions in Fiji.

26. The applicant also claimed in her written statement provided to the Tribunal at hearing that she had been the victim of domestic violence committed by her second husband and at hearing she gave evidence that she had been the victim domestic violence committed by both her first defacto husband and her second husband. The applicant said that the authorities would not protect her, particularly because her second husband had been in the military.  The applicant also handed the Tribunal the following documents to support her claim of domestic violence and the lack of protection available if the perpetrator is a member of the police force or the military:

    (i)    Article published in the Fiji Sun, titled ‘Unfair Qiliho Tells Rabuka’, dated 4 February 2022.

    (ii)   Extract of the Laws of Fiji – PART 4A Powers of Arrest and Related matters.

    (iii)  Power of prison and police duties by the republic of Fiji Military forces.

    (iv)  Online social media post, Rabuka was PM, by Seremaia Tuiteci.

27. In relation to her first husband, the applicant told the Tribunal that approximately 17 years ago she had accused him of having an affair and he had become violent towards her. Following this incident, the applicant said that she left her husband and moved back to live with her cousin in [City 1].  The applicant told the Tribunal that her husband called her and his mother and father came to [City 1] to try to convince her to return to the village but she refused and remained living in [City 1] with her cousin.

28. The applicant told the Tribunal that she had also been the victim of domestic violence, committed by her second husband, who she was in a relationship with from approximately 2010 to 2019. The applicant said that on one occasion she reported the violence to the police when [Mr A] had assaulted her with a knife and cut her arm and her chin.  On a second occasion that she reported to the police and the military office where her husband had worked, she said that he had refused to allow her to leave the house and assaulted her. The applicant told the Tribunal that in addition to the incidents that she reported, her husband had also forced her to have sexual intercourse with him and assaulted her many times during the relationship. The applicant gave evidence that the police had said they would attend at her house and so she returned to the house but they never attended. The applicant told the Tribunal that she believes they did not take action because her husband had previously been in the military.

29. The applicant gave evidence that she eventually left the relationship with her second husband in 2019 and returned to live in [Village 1] at her family home where two of her brothers lived, shortly prior to travelling to Australia.  Asked if her second husband tried to harm her after she left the relationship or threatened her, the applicant said that she had warned him that her family would protect her if he came near her so he did not. The applicant then told the Tribunal that her second husband is now deceased, and after checking her handwritten notes, she gave evidence that he died in Fiji [in] February 2021.

    Fear of domestic violence

30. In her written supporting statement provided at hearing and in her oral evidence outlining her personal background to the Tribunal, the applicant has described circumstances of her being a victim of domestic violence in Fiji committed by both her first defacto partner and her second husband.  The Tribunal notes that the applicant did not state that she was married at the time of her protection visa application, nor did she raise any claims relating to domestic violence in her application.

31. The applicant told the Tribunal that the circumstances with her first defacto partner related to a matter which happened approximately 17 years ago. The applicant did not claim to now fear harm from her first husband. In respect of her second husband, the applicant told the Tribunal that she had left the relationship and moved to live with her family in her home village of [Village 1] in the months prior to travelling to Australia and was therefore separated from her husband at the time of making her protection visa application.  Given the applicant’s evidence that she had been able to leave both relationships of domestic violence as she had the support of her family, and that she was separated from her second husband, the Tribunal finds that it is reasonable that she did not include the information in her initial protection visa application. Therefore, the Tribunal does not draw an adverse inference as to the applicant’s credibility.

32. The Department of Foreign Affairs and Trade Country Information Report on Fiji dated 20 May 2022 reports that domestic violence against women and girls in Fiji is among the highest in the world[2] and notes that police protection is available but not consistently, with some police stations not having the equipment or transport to deal effectively with cases of gender-based violence.[3]

    [2] DFAT Country Information Report on Fiji dated 20 May 2022, at 3.51.

    [3] DFAT Country Information Report on Fiji dated 20 May 2022, at 3.23.

33. The Tribunal accepts that the applicant was the victim of domestic violence committed by her first defacto husband approximately 17 years ago, following which she left the relationship and the village where she lived with him and returned to live with her cousin in [City 1].  The Tribunal finds that the applicant was able to leave the relationship and relocate to [City 1] and that her first husband did not attempt to harm her again after she left. The Tribunal accepts that her partner’s parents went to [City 1] to ask her to return to the relationship but she refused. The applicant told the Tribunal that her only fear of domestic violence was of her second husband, who is now deceased.  She did not claim to fear her first husband and had been able to relocate to [City 1] and live with family to avoid harm. The Tribunal finds that there is no real chance or a real risk that the applicant will face serious or significant harm for reason of domestic violence by her first husband.

34. The Tribunal also accepts the applicant’s evidence that she was the victim of domestic violence committed by her second husband, who she commenced a relationship with in approximately 2010 and married [in] November 2015. The Tribunal accepts the applicant’s oral evidence that her husband is now deceased.  Given that the claimed perpetrator of the harm, being her second husband [Mr A], is now deceased, the Tribunal finds that on return to Fiji the applicant will not be the victim of domestic violence committed by her husband. Therefore, the Tribunal finds that there is no real chance or a real risk that the applicant will face serious harm or significant harm for reason of domestic violence by her second husband.

    Fear of economic hardship

35. At hearing, the applicant gave evidence in similar terms to her visa application that she came to Australia to have a better life and support her family in Fiji. The applicant told the Tribunal that in Australia she has had the opportunity to earn more money than she could earn in Fiji and is able to send money to her siblings and support her nephew to complete post-secondary studies in [Country 1]. The applicant said that she does not know where she is going to live if she returns to Fiji and she would have to start her life again. The Tribunal accepts that the applicant previously lived with her husband renting a house in [City 1], and following her separation from him in 2019 she lived with her brother in the family home in [Village 1] for a short period before travelling to Australia.  The applicant gave evidence that it would be difficult to live with her siblings on return because they are all married.

36. The Tribunal accepts that the economic conditions in Fiji may not be as favourable for the applicant as compared to Australia, and that the earning capacity of the applicant is higher in Australia than it would be on her return to Fiji which allows her to support her family members.  The Tribunal also accepts that the applicant will not have her own home to return to, however, considers that she would be able to live at her family home in [Village 1] as she did previously in 2019, even if it would be difficult to live with her married siblings. The Tribunal also notes that the applicant also has another brother living in [City 1] and sisters living in other villages in Fiji who may be able to offer support.  Even where the applicant’s siblings did not provide the applicant with support, the Tribunal considers that the applicant would have good prospects of obtaining employment in Fiji as she gave evidence she was able to do in the past. The applicant also now has a number of years of employment experience in Australia which may assist her in obtaining employment on return to Fiji.

1. While the Tribunal accepts that the applicant will experience some financial hardship on return to Fiji, the Tribunal does not accept that the financial conditions she will face are targeted at her or will impact her beyond the general population and the Tribunal is not satisfied that the challenges she is likely to face in Fiji amount to serious harm for the reasons of her race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm, including significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist, for one or more of the reasons mentioned. The Tribunal is also not satisfied that the financial hardship the applicant may face in Fiji constitutes ‘significant harm.’ The applicant’s claims do not demonstrate an actual subjective intention to cause her severe pain or suffering (either physical or mental) or pain or suffering that could reasonably be regarding as cruel or inhuman in nature, or extreme humiliation that is unreasonable.

   CONCLUSION

2. The Tribunal finds that there is no real chance or real risk that the applicant will face serious or significant harm by reason of domestic violence committed by her first defacto husband or her second husband, who is now deceased.  The Tribunal does not accept that the economic conditions that the applicant may face in Fiji amount to serious harm including significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist, for any of the reasons mentioned in s5J(1)(a). The Tribunal also does not accept that any potential hardship in this context constitutes ‘significant harm.’

3. After considering the applicant’s claims, both individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm in Fiji for the reason of her race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s36(2)(a).

4. 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 there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

5. 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 any of the criteria in s 36(2).

   DECISION

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

   Melissa Haag
   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.

   …