2009407 (Refugee)

[2024] AATA 4101

2009407 (Refugee) [2024] AATA 4101 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Clare Hughes

CASE NUMBER:  2009407

COUNTRY OF REFERENCE:                   Somalia

MEMBER:Siran Nyabally

DATE:1 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 01 October 2024 at 12:49pm

CATCHWORDS

REFUGEE – protection visa – Somalia – particular social group – separated woman – divorce – fear of sexual violence – no support network – fear of killing – mental health issues – state protection – residence in a third country – decision under review remitted

LEGISLATION

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

CASES

AGA16 v MIBP [2018] FCA 628
MIMAC v SZRHU (2013) 215 FCR 35
Suntharajah v MIMA [2001] FCA 1391

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

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

   APPLICATION FOR REVIEW

2. The applicant first arrived in Australia [in] May 2011 as a holder of a New Zealand Citizen Family Relationship (subclass 461) visa, which expired on 4 May 2016. She has not subsequently departed Australia.

3. The applicant applied for the protection visa on 10 June 2015. The delegate refused to grant the protection visa on 28 May 2020.

4. The applicant applied for review of the delegate’s decision on 5 June 2020.

   CLAIMS AND EVIDENCE

   Before the Department

   Protection visa application

5. The applicant claims to be [an age]-year-old Somalian citizen who was born in Mogadishu, Somalia. In her protection visa application and accompanying statutory declaration (2015 statutory declaration), the applicant claimed that she was from the [Subtribe 1] of the Reer Xamar (also known as the Benadiri)[1] tribe, a small tribe which was not very powerful in Somalia. Her parents and [most] of her siblings were deceased.

   [1] MRG, ‘No Redress: Somalia’s Forgotten Minorities’ (2010), available at p11.

6. When she was about [age] years old, the applicant married her first husband [name] (hereafter referred to as ‘M’). They had [number] children together. When the applicant and M divorced, M took custody of the children. The applicant subsequently moved to Ethiopia, settling in Addis Ababa.

7. In about 2007, the applicant learned that M and [a number of their] children had disappeared. With the assistance of her mother, the applicant was reunited with her [remaining] children in Ethiopia. The applicant met her second husband [name] (hereafter referred to as ‘Y’) while living in Ethiopia. The applicant and Y were married in about 2009, and he subsequently sponsored the applicant’s subclass 461 application. When the applicant departed Ethiopia in 2011, her [remaining] children went to live with her friend.

8. The applicant claimed (amongst other things) that if she returned to Somalia, she would be kidnapped, raped, tortured or killed by people of other clans because she was a single woman without any tribal protection. She would be unable to obtain protection from the authorities because there was no proper police force or government authority that could provide her with protection, and she could not relocate because she had no surviving relatives in Somalia and it was impossible to live anywhere in Somalia without clan protection.

   Supporting documents

9. In addition to her protection visa application forms, the applicant lodged the following documents with the Department:

   ·the 2015 statutory declaration;

   ·a certified copy of her Australian travel document, attaching a copy of her subclass 461 visa granted on 4 May 2011;

   ·a certified copy of an Ethiopian tourist visa granted to the applicant [in] May 2011, which expired [later in] May 2011;

   ·a divorce order dated [in] September 2015; and

   ·letters from the applicant’s support worker and members of the Somalian community;

   Protection visa application interview

10. The applicant attended an interview with the Department officer on 5 March 2020. The day before the interview, the applicant’s representative informed the Department that the applicant had disclosed past incidents of sexual assault (sexual assault claims), including a claim to have been kidnapped and repeatedly raped when she was [age] years old.

11. Following the interview, the delegate requested further information about the sexual assault claims and the applicant’s family composition. The applicant responded in a statement dated 4 May 2020 (2020 statement). In that statement, the applicant informed the Department that: she had a step-son who lived in [Country 1]; that in 2020 she learned that one of her [missing] children was deceased; and that her [remaining] biological children now lived in Ethiopia with her half-brother.

    Delegate’s decision

12. In their decision record, the delegate accepted that the applicant was previously married to M, with whom she had [number] children, and that she feared experiencing sexual violence in Somalia due to being a separated woman. The delegate did not accept that the applicant was from a minority tribe or that the sexual assault claims were true.

13. The delegate refused to grant the visa on the basis that any discrimination she would experience as a divorced woman in Somalia would not be so severe or pervasive as to amount to persecution or significant harm.

    Before the Tribunal

14. On 5 June 2020, the applicant applied for review of the delegate’s decision and appointed Refugee Legal as her representatives and authorised recipients.

15. The applicant’s representatives have provided the Tribunal with written submissions and further evidence, relevantly including:

    ·two letters and a psychological report prepared by the applicant’s treating psychologist, [Psychologist A]; and

    ·a statutory declaration declared by the applicant on 30 September 2024 (2024 statutory declaration).

    CRITERIA FOR A PROTECTION VISA

16. 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.

17. 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.

18. 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).

19. 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.

20. 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

21. 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

22. 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. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.

23. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of nationality

24. The applicant has provided a copy of her passport from Somalia. She has consistently claimed to be from Somalia. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Somalia. The Tribunal is satisfied that Somalia is her receiving country and has assessed her claims against that country.

    The applicant’s claims for protection

25. In her 2020 statement and 2024 statutory declaration, the applicant claims (amongst other things) that if she returns to Somalia, there is a real chance that she will be seriously harmed because she is a divorced Somalian woman without a support network. Her vulnerability is exacerbated by her poor psychological state. In a June 2024 report, the applicant’s psychologist states that:

    Since [the applicant] has attended psychology sessions, her symptoms have increased significantly. When she began counselling, she was already in the extreme end of the depressive symptoms, and this has increased more which has caused her to feel shut down on an ongoing basis, which usually brings with it suicidal thoughts and plans. As she has already begun to lock herself away, this is a major concern.[2]

    [2] Psychological report of [Psychologist A] dated 5 June 2024.

26. The Tribunal accepts on the basis of the applicant’s consistent evidence that she is a divorced single mother of her [number] surviving children. The Tribunal accepts that the applicant’s children live with her half-brother in Ethiopia, and her half-sister lives in [Country 2]. The Tribunal accepts that the applicant has no contact with any relatives who may still reside in Somalia. Accordingly, the Tribunal accepts that the applicant would be returning to Somalia as a divorced Somalian woman with no support network.

27. In the Department’s decision record, the delegate expressed concerns about perceived inconsistencies in the applicant’s evidence and the late disclosure of the sexual assault claims. While the applicant’s account of past events may not have seemed credible to the delegate, studies have shown that reactions to trauma are unique, and responses to trauma are influenced by personality, coping style, language and culture.[3]  The Tribunal finds that the inconsistencies in the applicant’s evidence and her late disclosure of the sexual assault claims do not undermine their credibility, and draws no adverse inferences. 

    [3] Amina Memon, ‘Credibility of Asylum Claims: Consistency and Accuracy of Autobiographical Memory Reports Following Trauma’, Applied Cognitive Psychology 26 (2012), p 677.

28. The Tribunal accepts on the basis of the applicant’s consistent evidence she is a member of the [Subtribe 1] of the Reer Xamar tribe, a minority tribe in Somalia. The Tribunal also accepts the genuineness of the sexual assault claims. The applicant’s account of the sexual abuse and violence inflicted upon her when she was around [age] is consistent with relevant country information, which states that the Reer Xamar tribe suffered heavily from militia attacks following the 1991 civil war and that many women and girls were raped.[4] However, as the Tribunal has concluded that the applicant meets s 36(2)(a) of the Act on the basis of her status as a divorced Somalian woman without family support, it has only addressed the applicant’s claims to the extent that they are relevant to its findings.

    [4] MRG, above n 1, p12.

    Is the applicant a refugee?

29. Country information indicates that female-headed households are among the most vulnerable groups in Somalia. Divorced and widowed women are particularly vulnerable to gender-based violence (GBV), because they work outside the home and are perceived to be looking for a husband. GBV, including rape, affected women and girls when going to collect water, going to the market, and cultivating fields.[5]

    [5] UNHCR, ‘International Protection Considerations with Regard to People Fleeing Somalia’, (September 2022), available at p 95 (and articles cited therein); US Department of State, ‘Country Reports on Human Rights Practices for 2023 – Somalia’ (22 April 2024), available at p34.

30. The protracted conflict in Somalia also exposes women and girls to heightened risks of sexual violence, perpetrated by ‘clan militias, Al-Shabaab, the Somali Police Force, the Somali National Army, regional forces and unknown armed elements’.[6] While authorities sometimes arrested security force members accused of such abuses, impunity was the norm.[7]

    [6] UN General Assembly, ‘Situation of Human Rights in Somalia’ (14 July 2021), A/HRC/48/80, p 8;  UN Security Council, ‘Conflict-Related Sexual Violence’ (29 March 2022), S/2022/272, p 16/29.

    [7] US Department of State, above n 5, p34.

31. Due to their vulnerable position, women returning to Somalia are heavily reliant on their male protectors. In its 2018 report, the Finnish Immigration Service observed that:

    A woman returning to Somalia needs a support network to accept her. In practice, a ‘network’ means a community comprising close family members and led by a male relative. In addition to a husband, a woman can be protected by her father or brother. … Because the immediate and extended family are very important, knowing one’s relatives is highly significant.

    …

    A network is necessary for managing practical matters, and life without one is difficult for an unaccompanied woman. For instance, it is hard for a woman to rent, sell or buy a house or residence by herself. Landlords usually ask women questions about their clan, and an unaccompanied female tenant can be regarded as a prostitute, making it difficult to find a home. An unaccompanied woman living without a husband is exposed to sexual violence because she is deemed to be ‘fair game’.[8]

    [8] Finnish Immigration Service, ‘Somalia: Fact Finding Mission to Mogadishu and Nairobi’ (5 October 2018), available at p 23.

32. The male-dominated, patriarchal and hierarchical clan system in Somalia also means that women belonging to minority clans (such as the applicant) are particularly vulnerable.[9] 

    [9] Lifos, ‘Somalia: The Position of Women in the Clan System’ (27 April 2018), available at p 17.

33. The Tribunal has accepted that the applicant would be returning to Somalia as a divorced woman without family or social support networks. On the basis of the country information discussed above, the Tribunal accepts that in the absence of a male protector, there is a real chance that the applicant would be physically and/or sexually assaulted. The Tribunal accepts that the harm may include a threat to her life or liberty, significant physical harassment and/or significant physical ill-treatment, such as would constitute serious harm for the purposes of s 5J(5). The Tribunal also considers that the seriousness of the harm suffered would be exacerbated by the applicant’s personal vulnerabilities, namely her physical and psychological trauma caused by past sexual violence.[10] Taking these considerations into account, the Tribunal is satisfied any future harm or even threats of harm the applicant may experience could amount to serious harm as contemplated in the Act.

    [10] AGA16 v MIBP [2018] FCA 628.

34. The Tribunal considers that the harm the applicant fears is for the reason of the applicant’s membership of a particular social group, being ‘divorced Somalian women without a support network’: s 5J(1)(a). GBV is prevalent in Somalia – country information indicates that domestic and sexual violence against women remained a serious problem despite the existence of laws prohibiting any form of violence against women. The United States Department of State reports that:

    Exposure to domestic violence was also significantly heightened in the context of displacement and socioeconomic destitution. Survivors faced considerable obstacles accessing necessary services, including health care, psychological support, and legal assistance; they also faced reputational damage and exclusion from their communities. In several cases survivors and providers of services for gender-based violence survivors were directly threatened by authorities when such abuses were reportedly perpetrated by men in uniform.[11]

    [11] US Department of State, above n 5, p36.

35. In this case the Tribunal finds that the gendered nature of the violence has its genesis in beliefs about the role and status of women and the perceived right of men to dominate and control divorced women because of their gender and the absence of a male protector.[12] The Tribunal considers that the group of ‘divorced Somalian women without a support network’ is identifiable by the characteristics of gender, marital status and nationality, and that the common characteristics or attributes are not a shared fear of persecution. Moreover, the Tribunal accepts that the applicant’s identity as a divorced Somalian woman without a support network is an immutable characteristic incapable of modification: s 5J(3)(b).

    [12] See for example Finnish Immigration Service, above n 8, p26.

    Effective State protection

36. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

1. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

2. Country information indicates that State protection is not effective for women seeking protection from GBV in Somalia. As discussed at [‎29]-[‎30.  ] above, the Tribunal accepts that despite the existence of some legislative protections against GBV, in practice sexual violence against women in Somalia continues and, in some instances, the authorities are the agents of persecution.[13] The Tribunal finds that effective protection measures are not available to the applicant in Somalia.

   [13] UN General Assembly, above n 6.

   Does the harm feared by the first applicant extend to all areas of Somalia?

3. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Tribunal has considered whether the applicant faces a real chance of serious harm in all areas of Somalia.

4. The applicant has no family or other support networks within Somalia. The Tribunal accepts the applicant’s evidence, which is consistent with independent country information, that women face difficulties in living alone in all parts of Somalia.[14] In these circumstances, and in light of the country information stating that sexual and other GBV is common across the entire country, and is met with impunity for perpetrators,[15] the Tribunal accepts that the applicant’s vulnerability to this form of harm persists across all areas of Somalia.

   [14] Discussed at [‎29]-[30] above. Also see MRG, above n 1, p19.

   [15] Ibid.

5. The Tribunal is therefore satisfied, on the basis of all of her circumstances, that the applicant faces a real chance of serious harm in all areas of Somalia. The essential and significant reason for that harm is the first applicant’s membership of the particular social group, ‘divorced Somalian women without a support network’.

   Right to enter and reside in a third country

6. Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.

7. The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question. Australian courts have also held that the right referred to in s 36(3) must be an existing right and not a past or lapsed right, or a potential right or an expectancy: Suntharajah v MIMA [2001] FCA 1391 (2 October 2001).

8. The Tribunal accepts the applicant’s evidence that she travelled to Ethiopia in 2006, remaining there for approximately 5 years before departing to Australia in 2011. There is no evidence before the Department or Tribunal to suggest that her initial entry and stay in Ethiopia was lawful. The only evidence of the applicant’s lawful residence in Ethiopia is a copy of a tourist visa label issued [in] May 2011,[16] which expired [later in] May 2011.

   [16] The applicant’s Ethiopian visa label indicates that she was granted a “VT” visa. The Ethiopian Immigration website indicates that the VT visa is an electronic single-entry visa issued by the Ethiopian Government for visitors who wish to travel to the country for tourism or other non-business-related purposes only. See Immigration and Citizenship Services, ‘Tourist Visa – VT’, available at

9. Her representative has submitted that the applicant’s past residence in Ethiopia does not give rise to a present right to reside there, noting that:

   We note the Ethiopian Parliament adopted a revised Refugee Proclamation which came into effect in 2019. This Proclamation had the objective of ‘improving, within available means, comprehensive protection’ to refugees and people seeking asylum in Ethiopia. This Proclamation suggests that Ethiopia allows for freedom of movement and for refugees to integrate into society. However, in practice, this proclamation reflects a broader vision of the Ethiopian Parliament rather than a presently existing practical right affording Somali nation[al]s a right to enter and reside in Ethiopia.

10. The Tribunal accepts this submission. In the Tribunal’s view, Part 3 of the Proclamation confers a legal right to make a claim for asylum either (a) when presenting at an entry point to Ethiopia; or (b) by presenting to a relevant authority within 30 days of the date of the Proclamation (or a later date if the authority accepts that there are ‘acceptable reasons’ for the late application).[17] The applicant does not fall within either of those categories.

    [17] Ibid, Part 3.

11. In summary, there is no evidence before the Tribunal to suggest that the applicant presently has any lawful right to enter and/or reside in Ethiopia. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply.

    CONCLUSION

12. The Tribunal is satisfied the applicant has a well-founded fear of persecution in Somalia. Therefore, she comes within the definition of a ‘refugee’ set out in s 5H of the Act and satisfies the criterion set out in s 36(2)(a).

    DECISION

13. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Siran Nyabally
    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.

    …