2008447 (Refugee)

[2022] AATA 2663

2008447 (Refugee) [2022] AATA 2663 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Andre Pascal Gilbert Lam-Hing

CASE NUMBER:  2008447

COUNTRY OF REFERENCE:                   Mauritius

MEMBER:Bridget Cullen

DATE:30 June 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 June 2022 at 3.19pm

CATCHWORDS
REFUGEE – protection visa – Mauritius – father’s alleged work with Mauritius’ Independent Commission Against Corruption (ICAC) – assassination attempts – credibility concerns – lack of meaningful detail and corroborating documentation – applicant’s migration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), r 1.12; Schedule 2

CASES
MIAC v SZQRB (2013) 210 FCR 505

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 15 May 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Mauritius, applied for the visas on 31 March 2016. The first named applicant is a [age]-year-old male (the applicant). The remaining applicants are members of his family unit. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were refugees or people to whom Australia has protection obligations to.

3. The applicants appeared before the Tribunal for a directions hearing on 9 February 2022 in relation to the applicant’s previous representative, who was suspended by the Office of Migration Agents Registration Authority and the Tribunal’s attempts to ascertain where to send correspondence to in future and obtain up to date details.

4. The Tribunal, on 14 June 2022, invited the applicant to appear before the Tribunal on 29 June 2022 to give evidence and present arguments. On 21 June 2022, the applicant’s representative, requested postponement on the basis of two issues. The first was that the primary applicant was contacting an ex-member of the Mauritian Police Force who lived in Australia to convince them to come forward and assist in their case with witness statements and for them to be available. The applicant wanted additional time and a postponement of the hearing to provide additional documents. The second reason was that the representative was unavailable for the dates of 23 June 2022 to 27 June 2022. The request was such to allow until 4 July 2022 to provide supporting documents and statements, and to have a hearing scheduled for after this date.

5. The Tribunal refused the request on 23 June 2022, citing the following reasons:

   “The Member notes that your representative’s unavailable dates for travel are 23 to 27 June. As the hearing is scheduled for 29 June 2022, there is no indication or information before the Tribunal that either you or your representative are unable to attend the hearing, and therefore the hearing is proceeding as scheduled.

   The Member will discuss the request for an extension of time to provide further documents at the hearing”

6. A further hearing postponement request was made on 28 June 2022, on the basis that the representative had caught a cold during their unavailability period. The representative later that afternoon provided a medical certificate for the period of 29 June 2022 to 29 June 2022. The Tribunal rescheduled the hearing to 30 June 2022 accordingly.

7. A further email came in from the representative on 29 June 2022 advising that they were not able to attend the hearing on 30 June 2022 and providing a new medical certificate which covered 29 June 2022 to 1 July 2022. The representative further advised that he was instructed to say that the applicants would attend the hearing as scheduled. The Tribunal wrote back on same day asking the representative to confirm if the applicants wished to proceed with the hearing, or if they were seeking a postponement to facilitate the representative’s attendance.

8. The representative wrote back that afternoon as follows:

   “As advised in my last email, my clients have instructed me that they would attend the hearing tomorrow Wednesday 30/6/2022, despite my absence, to discuss the request for an extension of time for the submission of witness statements, as directed by your letter dated 23th June 2022.”

9. The applicants appeared for their Tribunal hearing on 30 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter, the [fourth-named applicant].

10. The applicants were represented in relation to the review. The representative did not attend the Tribunal hearing.

    CRITERIA FOR A PROTECTION VISA

11. 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.

12. 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.

13. 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).

14. 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.

15. 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

16. 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

17. The issue in this case is whether the applicants are people to whether Australia has protection obligations to, either as refugees or under the complimentary protection provisions.

18. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

19. The applicants’ migration history is extensive, and worth noting. The Tribunal has extrapolated the below from the delegate’s decision record:

7 March 2007	[Visitor] visa granted offshore, in effect until [Date 1] May 2007
[date] March 2007	Arrived in Australia
[Date 1] May 2007	Departed Australia
27 February 2008	[Student] visa granted offshore in effect until 22 May 2008
[date] March 2008	Arrived in Australia
22 May 2008	[Student] visa granted onshore, in effect until 30 June 2010
30 June 2010	[Student] visa application commenced onshore; Associated BVA (Bridging Visa A) granted, in effect until 4 August 2010
4 August 2010	[Student] visa granted onshore, in effect until 25 November 2011
3 November 2011	[Student] visa application commenced onshore; Associated BVA (Bridging Visa A) granted, which was in effect until 23 October 2013
12 January 2012	[Student] visa refused
17 January 2012	Migration Review Tribunal (MRT) appeal lodged
[date] September 2013	MRT affirmed decision not to grant student visas
24 October 2013	Multiple BVEs (Bridging Visa E) granted, LUD 29/05/2014
18 November 2013	S351 Ministerial Intervention request commenced
7 April 2014	S351 Ministerial Intervention outcome – Not Considered
21 May 2015	XA-866 (Permanent Protection) visa application commenced
29 May 2015	Associated BVE (Bridging Visa E) granted, LUD 02/05/2016
22 March 2016	XA-866 (Permanent Protection) visa application invalid
31 March 2016	XA-866 (Permanent Protection) visa application commenced
6 April 2016	Associated BVE (Bridging Visa E) granted
4 May 2020	Protection Visa interview conducted by the Department
15 May 2020	Department refuses the applicants’ XA-866 (Permanent Protection) visa applications

1. The applicants’ claims for review, when lodging their protection visa applications, are summated, only the first named applicant made claims:

   ·The applicant was born to a Christian family in Port Louis and has [number] siblings.

   ·The applicant’s father was a police officer from 1966 – 1991, when there was an assassination attempt against his father by three unknown men. The father passed away [in] March 2012, having suffered from depression and high blood pressure issues.

   ·The applicant’s father served in remote areas before being promoted in the 1980s and was stationed near their home, noting his father’s reputation was in good standing as an expert investigator. The applicant’s father was constantly threatened with attack and attempts to remove him from his position through bribery were made. The applicant’s father was involved in numeral investigations. Towards the end of his career, he worked for Mauritius’ Independent Commission Against Corruption (ICAC), as corruption is widespread there.

   ·The applicant’s father had a security detail, took precautions and did not speak much of his job due to confidentiality arrangements. The assassination attempt led to his father being discharged but was offered a role as a consultant for the ICAC.

   ·‘They’ realised the applicant’s father had access to sensitive information because of his consulting role, and maintained a low profile, but was still threatened because of the sensitive information available to him from his job and ended up leaving after 3 years in the role due to his concerns with his family’s safety.

   ·The applicant’s sister married a man named [Mr A] in 1996. After the wedding, ‘anonymous’ persons made [Mr A] a drug addict to put pressure on the applicant’s father. The applicant’s father supported the applicant being in Australia and this was why he had not been back to Mauritius since 2008, as his father would not let him return. The applicant came to Australia on a tourist visa, followed by a tourist visa in 2008. The applicant’s father and brother-in-law support him at the time. The applicant’s brothers ([number] younger brothers) are attempting to leave Mauritius as well. When their father died, they faced difficulties in job applications and were unable to get any assistance.

   ·In 2010, ‘some ICAC persons’ approached the applicant’s father seeking files that had been missing from a case handled by the father but placed on hold after his discharge. He was aware of this incident because he was in constant contact with his family. The applicant’s suffered a heart attack after the visit and was hospitalised. The applicant’s mother also had a stroke after the heart attack. The applicant ceased studying as a result of the health issues. The family was not aware of anything that went wrong during the visit.

   ·Approximately a month after the visit, the family’s house was broken into, however nothing was stolen, and it appeared the search was in the applicant’s father’s office and bedroom. The applicant says that the fact his sister and brothers were targeted showed that the documents being sought would be with his family members. The applicant claims that his family have reported all these instances however the police would not assist them.

   ·The applicant believes that him and his family are the next target if returned to Mauritius and that they will be constantly threatened, and that he cannot return and live a free life.

2. At the commencement of the hearing, the Tribunal heard the applicants in relation to their request for an extension of time to obtain additional evidence. The Tribunal refused the request for additional time, as the applicant was unable to explain the basis upon which the information had only recently become available. The Tribunal explained that it had now been more than 6-years since the applicants had made their application for protection visas on 31 March 2016.

3. The first-named applicant explained that his previous representative, [Mr B], had been suspended by the Office of Migration Agents Registration Authority. However, the Tribunal explained that it had held a Directions Hearing with the applicants on 9 February 2022. Irrespective of any alleged lack of communication on the part of [Mr B] with the applicants, at least since the 9 February 2022, the applicants knew that they needed to obtain and file any evidence available to them in the Tribunal.

4. The further evidence that the applicant seeks to obtain is also speculative and may not, in fact, exist. There is no evidence before the Tribunal indicating that the applicant has successfully contacted the claimed witness that he seeks to obtain information from.

5. The Tribunal cannot indefinitely delay proceedings to allow applicants to obtain further evidence that should have, if available, been obtained at an earlier juncture. Here, there is no reason sounding in procedural fairness and/or natural justice to extend time. The application for protection has been made more than six years ago, such that the applicant has had ample time to obtain whatever supporting information might be available.

6. The Tribunal then provided the applicant the opportunity to tell his story. The applicant was unable to provide any meaningful detail. The applicant could not provide the Tribunal with even the bare particulars of his earlier claims and could not provide relevant detail in relation to his story that his father had worked for ICAC and had been threatened by “three people” in relation to corruption.

7. The Tribunal is conscious that hearing processes are stressful, and therefore made a concerted and genuine effort to facilitate the applicant’s ability to tell his story. The Tribunal explained to the applicant that it wanted to give him a fair opportunity to tell the Tribunal about the matters that concerned him, which he based his claims upon. The [fourth named applicant] sought to assist her father, by explaining to the Tribunal that he may not understand, due to language issues.

8. The Tribunal asked the applicant, who has resided in Australia since 2008, if he had completed his education in English. The applicant told the Tribunal that he had completed his studies in [subject] in English. The Tribunal notes that the applicant has resided in Australia since 2008, a period of more than 14-years. The applicants did not request an interpreter at either the directions hearing or the substantive hearing, and the Tribunal checked with the applicant whether it had understood its questions, and he said that he did.

9. After providing a fulsome opportunity to discuss his concerns with the Tribunal, the applicant told the Tribunal that he had nothing further to say and would rely on the written evidence that had been filed in the proceedings.

10. It concerns the Tribunal that the applicant was unable to give the Tribunal any meaningful detail about his story, despite the opportunity to do so in a very open way by the Tribunal merely asking the applicant why he feared returning to his home country. The Tribunal is also concerned about the absence of any documentary evidence supporting the applicant’s claims about his father’s alleged work with ICAC in Mauritius. The delegate expressed the same concerns, in the following terms:

    I have considered that Applicant 1, despite my request, failed to submit any evidence relating to his father’s alleged work with ICAC. He also did not submit any evidence, police reports or hospitalisation records relating to alleged succeeding incidents that occurred due to his father’s claimed ICAC role including the attempt to assassinate his father, the attempted bribery charge against his father, hospitalisation of his father, the raid in his parents’ and sister’s home and his brother being taken to the police station. It is implausible that there is no single evidence available to support any of these incidents considering that he claims his family have reported them to the police.

11. The Tribunal considers that, if genuine, there would be some objective evidence supporting the applicant’s claims. The Tribunal considers that the applicant’s migration history is indicative of his using the protection visa application process to extend his time in Australia as he has exhausted all other avenues, including a request for Ministerial Intervention.

12. The Tribunal does not accept any of the applicant’s claims as they are not credible and are not supported by the sort of objective documentary evidence that should be available to support such claims.

13. On the basis of the documentary evidence before it, the Tribunal finds as follows:

    ·The applicant’s father died from [cause] due to severe [medical condition] [in] March 2012 (supported by a death certificate and copy of national ID card);

    ·The applicant’s father was promoted to Sergeant [in] December 1975 (supported by letter from the Mauritius Commissioner of Police dated [in] December 1975);

14. The Tribunal also makes the following findings of fact, which follow from the above findings and the Tribunal’s view that the applicant’s claims are not credible; the general absence of detail about the claims by the applicant; and the absence of corroborating documentation where documentation would be expected:

    ·The first-named applicant’s father was employed by the Mauritius Police Force [between] 1966 (commencing as a Constable) until retirement [in] 1991 (holding the rank of Sergeant);

    ·The applicant’s father did not work in Mauritius for the ICAC and it therefore follows that the Tribunal does not accept there were any attempts to remove the applicant’s father from his alleged ICAC role;

    ·The applicant’s father was not the subject of any assassination attempts due to an alleged ICAC role and was not approached by persons from the ICAC looking for files in 2010, or at all;

    ·The applicant’s parents and grandparents did not die and were not hospitalised for reasons relating to any alleged ICAC role;

    ·The applicant’s parent’s and sister’s homes were not raided for reasons relating to any alleged ICAC role.

    ·The applicant’s brother was not taken to the police station and questioned about ICAC files;

    ·The applicant’s brother-in-law was not forced to become a drug addict to place lateral pressure on the applicant’s father, as a consequence of any ICAC role;

    ·The applicant’s father was not privy to, and did not possess sensitive ICAC files or information;

    ·The applicant’s father was not involved in any corruption investigations, involving the former Mauritius Prime Minister Ramgoolam or any other public official.

    ·The applicant was not previously harmed in Mauritius because of his father’s alleged ICAC role.

    Cumulative claims

1. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions available to it, in addition to the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of being targeted, attacked and jailed by authorities looking for ICAC files relating to the alleged ICAC role of the applicant’s father, nor on the basis of the applicant’s father’s alleged involved in corruption investigations against the former Mauritius Prime Minister Ramgoolam or any other public official, nor on the basis of any other reason if he returns to Mauritius now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion, or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Mauritius.

2. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

3. The Tribunal has also considered the applicant's claims under complementary protection.

4. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on the grounds of being targeted, attacked and jailed by authorities looking for ICAC files relating to the alleged ICAC role of the applicant’s father, nor on the basis of the applicant’s father’s alleged involved in corruption investigations against the former Mauritius Prime Minister Ramgoolam or any other public official, nor on the basis of any other reason, now or in the reasonably foreseeable future, if he returns to Mauritius.

5. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and submissions available to it, in addition to the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Mauritius now or in the reasonably foreseeable future.

6. Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, 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 Mauritius, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act.

7. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

   Conclusion: Refugee Criterion

8. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act, and therefore he is not a refugee within the meaning of s.5H.

   Conclusion: Complementary Protection

9. Considering the applicant's individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Mauritius that there is a real risk that he will suffer significant harm.

   The applicant’s family members

10. Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant.

11. Section 5(1) of the Act provides that one person is a 'member of the same family unit' as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that 'member of the family unit' of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.

12. None of the applicant’s family members have made any claims for protection. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) for a Protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a Protection visa, they cannot be granted the visas.

    Overall conclusion

13. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants protection visas.

    Bridget Cullen
    Senior 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.

    …