2008208 (Refugee)
[2025] ARTA 733
•7 March 2025
2008208 (REFUGEE) [2025] ARTA 733 (7 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Fadi Malek (MARN: 0848702)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2008208
Tribunal:Senior Member Denis Dragovic
Date:7 March 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Senior Member D. Dragovic
Statement made on 7 March 2025 at 10:55 AM CATCHWORDS
R REFUGEE – protection visa – Egypt – religion – Christian – particular social group – elderly single women – fear of Muslim extremists – blasphemy laws – physical assault – attacks on churches – access to mental health treatment – complex medical issues – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2CASES
MZAAJ & Anor v Minister for Immigration & Anor [2015] FCCA 151 (4 February 2015)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Egypt. She applied for the visa on 13 April 2018.
The delegate refused to grant the visa on the basis that the applicant’s fears of persecutory harm were not accepted, and the delegate found that her circumstance did not meet the threshold for protection. The applicant appealed the decision to the then Administrative Appeals Tribunal.
The applicant appeared before the Administrative Review Tribunal (‘the Tribunal’) on 11 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from her daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
REASONS AND FINDINGS
The applicant is [an age]-year-old Coptic Christian who fears returning to Egypt.
At the hearing the applicant said that she fears returning because she would be alone in Egypt, and because of the government, extremists, and general crime.
She said that the government falsifies accusations and accuses people of things that they haven’t done. In part, she confirmed that she was referring to the use of blasphemy laws.
She provided the example of how her husband used to work in his [product 1] store, but it was burned down by government people. She said that this occurred during the ‘Brotherhood days’, a reference to the government of Mohammad Morsi in 2012-2013.
When I asked her to explain her fears of harm from extremists, she said that she fears dying alone and asked rhetorically, who would bury her. She said that anyone who is Christian is persecuted.
The applicant gave an example of how she has been impacted by the Islamist sentiment. She said that she doesn’t wear a scarf and while on her way to church she was hit on two occasions. As a result of one, she fell and broke her hip. The applicant’s daughter recalled that it was in the year leading up to her trip to Australia in 2017. But the applicant said that it was during the Brotherhood period.
The other time led to her falling again and suffering back pain. She said that she knew that it wasn’t accidental as the people responsible didn’t stop to help. She said that it was during the [Brotherhood] revolutionary days, and they were aggressive at that time.
The applicant also described receiving threatening letters placed under her door which demanded payment of money. She said that they came before, during and after the Brotherhood period. The letters included ‘if you don’t give us money then we will burn the store.’ Noting that her husband died in 2007 according to the applicant or 2010 according to the daughter, and that the store was burned while he was still alive, I asked why they would refer to burning the store after the store was burned. She said that they used to scare her and leave such letters under her door. She said that this behaviour continued intermittently until she came to Australia.
The applicant confirmed that they never paid the demands. She also confirmed that they did not encounter any harm arising from the letters.
I note on a few occasions some discrepancies and uncertainties over dates arose such as when she fell and broke her hip or when her husband died. I find these uncertainties arise from the passage of time and the pressures of the hearing and not for reasons that would question the applicant’s or the witness’ credibility. I have not sought further information nor made a finding on the exact dates for these events as they do not change the decision either way.
Country information
The following country information[1] provides up to date information on the situation in Egypt. We discussed this at the hearing.
[1] I note out of an abundance of caution that some of the country information referenced below is consistent with the country information gathered through research for another Egyptian case (2209906). To avoid any concern over plagiarism or not having adequately turned my mind to the present matter, I confirm that I have reviewed the material and note that new and up to date information was also sought and has been incorporated into this decision.
a.I noted that there is country information which indicates that police are stationed at churches[2] and that this is an indication of the government taking the security of Christians seriously. There is evidence that shows that in some instances the police have engaged the attackers.[3] The applicant responded by saying that they have burned down 83 churches.
b.I noted that the Grand Mufti Shawki Allam issued a fatwa allowing Muslims to work on the construction of churches.[4] I indicated that this seemed to show a proactive effort by the establishment of Islam towards supporting Christians. The applicant did not have a specific response to this.
c.I explained that Pope Tawadros, head of the Coptic Orthodox Church, when speaking generally to the topic of mistreatment by the state denied the implication that his congregation was being persecuted. He was quoted as saying, ‘In Egypt there are 5,000 villages. It happens that in some of them people act recklessly,’ adding, ‘I categorically reject the definition of ‘persecution.’’[5] The applicant said that, ‘He is unable.’ She then mentioned the abduction of a young girl who was forced to convert. I noted that it was in Minya, a rural province far from where they live and asked how that impacts her. She said that she is sad because of it.
d.Ramez Atallah, General Secretary of the Bible Society of Egypt noted that there are surprisingly few problems among an Egyptian population of 100 million.[6] The applicant corrected the Tribunal and noted that there are 120m Egyptians.
e.I note that a new law ensures that every new suburb must have space for churches to be built.[7] I explained that this contributes to a view that the government is intent on making a place for Coptic Christians in society. She said that the government is weak.
f.Looking at the general representation of Copts in government leadership positions, since the 2014 constitution established a quota, according to a 2021 article, elected Coptic parliamentarians have increased from 5 to 31 in Egypt’s House of Representatives and from 15 to 24 in its Senate. She said that she doesn’t know about that situation.
g.The 2023 United States Commission on International Religious Freedom (USCIRF) noted that large scale attacks against Coptic Christians have ‘not returned’.[8] An earlier source noted that there haven’t been any such attacks since 2018.[9] She said she was here then. The witness said that there was a recent accident that led to a number of deaths and that it was unknown if it was a terrorist attack. She said that she saw the information on Facebook. I noted to the representative that he could provide information about this claimed incident in post-hearing submissions. No such information was provided.
h.The blasphemy laws have been used in a limited number of 130 cases over a period of a decade.[10] I put to her that it’s not a large number which suggests that the government does not use that law often and that there is nothing in the evidence that would suggest that she would be exposed to being accused of blasphemy. She responded by saying that it makes her feel sad.
[2] ‘Gunmen kill Christian worshippers at Coptic church near Cairo’, The Guardian, 30 December 2017
[4] ibid
[7] ibid
[8] Open Doors, ‘Egypt: Full Country Dossier,’ January 2023
[10] >
The applicant added that the government are in cahoots with the extremists. The witness commented that the government makes everything look good but the situation on the ground is different. The applicant’s representative acknowledged that the situation is improved for Christians and did not make any submissions suggesting otherwise.
In considering the above country information and the responses received I accept that through the long lens of history many churches have been destroyed by Islamists in Egypt but note that the recent past is a relevant measure of the future into which the applicant will be returning to. This reasonably foreseeable future is one in which the government authorities and the establishment Islam have and are continuing to endeavour to reduce sectarian tensions, quash extremism and build peaceful relations.
While I acknowledge the responses given by the applicant and witness regarding the government being in cahoots with the extremists and that they provide information to make them look good, I note that the country information before me does not support this view. The government has clearly cracked down on the extremists and the sources of information I have consulted is broad and not limited to the government.
Based upon the above evidence, I find that the situation in Cairo and the surrounds, where the applicant was born and lived, is safe from extremist attacks and that there is low levels of sectarian violence or tensions.
I noted that Egypt has universal health coverage albeit greatly under resourced relative to Australia.[11] In a recent research request to the Department of Home Affairs research unit they were unable to find any evidence of discrimination against Coptic Christians accessing health care.[12] I was also unable to find any such information.[13] The applicant said that the situation is not good in Egypt. I asked if in her experience she had previously had problems with medical care because she is Christian. She said that the care was not good, but that she would go to Christian doctors. I find that the applicant has not experienced discriminatory treatment nor is there evidence before me of discriminatory treatment in the health sector.
[11] MZAAJ & Anor v Minister for Immigration & Anor [2015] FCCA 151 (4 February 2015)
[12] 'Egypt 20240517221058 – Health Services available for stroke patients – Care facilities in Asyut Governorate for Coptic Christians – Coptic Christians access to health care', Country of Origin Information Service (COIS), 31 May 2024
[13] Research through COISS, Google, RefWorld.
I have also considered whether there is any evidence of discriminatory treatment for people with mental health challenges or disabilities or those in aged care in Egypt and found that there is no indication that there is any discrimination.[14] After putting this to the applicant, she did not have a comment. I find that the applicant has not experienced discriminatory treatment nor is there evidence before me of discriminatory treatment of people with mental health challenges, disabilities or the elderly.
[14] 'Egypt - 20210907125921 - Persons with disabilities', Country of Origin Information Services Section (COISS), 14 September 2021; 'Egypt: 20210607165918 - Aged care - Mental health care - Coptic Christians', Country of Origin Information Services Section (COISS), 18 June 2021. Member research undertaken through COISS, Google, RefWorld
I asked the applicant about general crime noting that the evidence before me[15], both in terms of available information and her own evidence, indicates that it is not to the extent that would see her face a real chance or a real risk. She responded by referring to the threatening letters. She added that she had her bag stolen once, but it was random and that anyone who walks on the streets risks having their bag stolen. I accept that the applicant received the letters that she received but find that it was a unique and specific circumstance which did not lead to any harm. While I accept that her bag was stolen once, that it occurred only once, is evidence that the crime rate was low while she lived in Egypt.
[15] >
In post hearing submissions the representative raised the issue of ageism in Egyptian society. This is not a new claim. Challenges regarding individuals who age were discussed at the hearing including dying alone, lack of support, access to medical care and other services and have been addressed above.
The representative added country information about societal attitudes towards the elderly. In addition, the submission stated: ‘A recent study on public attitudes toward aging in Egypt found high levels of aging anxiety and negative perceptions of the elderly, which directly impact their quality of life and access to care.’ Only one source was provided. This one source was an article that included the following:
And while traditionally Egyptians, like other Arabs, are known to speak highly of the elderly, there have been fears that we are no longer practicing what we preach.
Sociologist Said Sadek believes today’s different outlook can be traced to a few generations back. “In the past, Arab society was mainly dependent on extended families where different generations took care of each other and showed respect and obedience to the elderly,” he said. The elderly in Arab society used to enjoy better status and treatment “as authority was seen as being based on gender and age,” he added.
The rest of the article speaks of the same issues that were discussed at the hearing, namely limited access to services and isolation. The article was written at the start of the COVID pandemic and as such was focused on the circumstances and challenges of the time. I find that the representative’s claim of ‘negative perceptions of the elderly’ to be unsupported by the evidence before me and that the challenges identified in the article are highly specific to the circumstances during the pandemic.
Considerations
In considering the applicant’s circumstances I place considerable weight on the applicant’s lived experiences but note that the period of the Brotherhood was limited and that subsequently the situation has changed considerably for Coptic Christians. As I have found that the situation in Cairo and the surrounds is safe, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from extremists.
The applicant suggested that the government falsifies evidence against Christians. No evidence was provided of this occurring nor is there any evidence before me that the applicant is at risk of being of interest to the authorities. As such, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the government falsifying charges against her.
Noting the applicant’s age and health status the areas of concern relating to the circumstances she faces upon return are access to government services such as medical and aged care and societal discrimination and/or violence on the streets.
With regards to services, there is no evidence before me that indicates that the applicant as a Coptic Christian or elderly or female would be discriminated in any way in accessing any government services. For this reason, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from official discrimination.
With regards to societal discrimination, including but not limited to, wielding blasphemy accusations such that it can amount to serious or significant harm, the information before me including the applicant’s lived experience is that she has been a victim of random attacks in the past, at least one of which was during the tumultuous time when the Muslim Brotherhood was rising and ruling Egypt. But the situation has changed on the ground as have the applicant’s own circumstances.
I have found that there are low levels of sectarian violence and tensions such that fears of some of the applicant’s profile being targeted are remote. In addition, by her own account she is not mobile without the support of others. As a result, she would be on the streets, in a market or a public place infrequently. As such, I find that she would spend most of her time indoors. I find that arising from the improved situation for Christians along with the applicant’s limited exposure to wider society, she does not face a real chance of serious harm or a real risk of significant harm from societal discrimination for reasons of being Coptic Christian.
In addition to societal discrimination, I have considered the situation of general crime such as her past experiences of having had her bag stolen and extortion letters slipped under her door. Noting that the evidence before me does not support a view that the levels of crime are such that the applicant faces a real chance or a real risk of being a victim, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from general crime.
I note that one of the major underlying concerns of the applicant’s is that she dies alone. While frightening to her and concerning, it is not a basis upon which Australia’s protection obligations are triggered as it lacks the necessary intentionality of harm.
When considering the applicant’s claims cumulatively, namely that she is elderly and will be living in an environment where there is a low level of societal discrimination and there have historically been extremist attacks, but nevertheless I have deemed it safe, I find that there is little overlap across her risks. I find that the different sources of risk are not compounding, in other words, for example, the risk from extremists does not increase because she is elderly, the societal discrimination that exists does not compound her risks from extremism and so forth. As such, I find that the applicant does not face a real chance of serious harm nor a real risk of significant harm when considering her cumulative risks.
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).
Request for Ministerial Intervention
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.
I have reviewed the policy guidance on cases that should be brought to the minister’s attention and note that two types align with the applicant’s circumstances:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
I refer to the submissions made by the representative to provide a summary of the applicant’s compassionate circumstances:
The applicant, [named], is an elderly Christian widow who has spent her entire life depending on her late husband. Following his death [in] October 2007, [the applicant] lived with her son and sister. Sadly, her son passed away in 2013, followed by her sister’s passing in 2016, leaving her entirely alone in Egypt.
Her last remaining relative in Egypt, her brother, passed away [in] May 2024, leaving her with no family support in her home country.
At her advanced age, [the applicant] is increasingly vulnerable and deeply fearful for her safety and wellbeing. She is physically unable to move around independently and relies entirely on others for her care.
…
Since December 2017, [the applicant] has been living in Australia under the care of her daughter and her family, who are Australian citizens. Her health has significantly deteriorated in recent years, and she now suffers from a complex medical history and severe functional impairments.
[The applicant] is completely dependent on her daughter, who acts as her primary caregiver, assisting her with all Activities of Daily Living (ADLs), including mobility, personal hygiene, medication management, and daily care.
Due to her fragile medical condition, [the applicant] is medically unfit to travel, and returning to Egypt is simply not a viable option, given her physical and emotional vulnerability, lack of family support, and dependence on her daughter’s full-time care.
In considering the applicant’s circumstances I am satisfied that they meet the Minister’s guidelines for referral and that under these circumstances I support the referral.
DECISION
The Tribunal affirms the decision under review.
Date of hearing: 11 February 2025
Name of representative: Fadi Malek
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.
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