2011407 (Refugee)

[2024] AATA 4092

2011407 (Refugee) [2024] AATA 4092 (22 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2011407

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Noelle Hossen

DATE:22 August 2024

PLACE OF DECISION:  Perth

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

Statement made on 22 August 2024 at 11:46am

CATCHWORDS
REFUGEE – protection visa – Fiji – access to health services – employment opportunities – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Fiji applied for the visa on 18 November 2019. The delegate refused to grant the visa on the basis that because the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations.

3. The applicant appeared before the Tribunal on 29 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his partner [Ms A].

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Before the Department

10. The applicant lodged his application on the 18 November 2019.

11. The applicant’s claims for protection are summarised below:

    He accidentally injured his foot whilst visiting Australia. The injury became infected and after treatment his toe was amputated in Australia. He then had to visit medical centres to change the dressings.

    He did not experience harm in Fiji.

    His concern is that one day he may need to have his foot amputated, and he would not be able to access medical services in Fiji which are of the same standard as those in Australia.

    Country of nationality and identity

12. Based on a copy of the applicant’s passport, which was provided to the Department and to the Tribunal, and in the absence of any evidence to the contrary before the Tribunal, the Tribunal accepts and finds that the applicant is a national of the Republic of Fiji and has had his claims assessed against that country. Therefore, based on this evidence the Tribunal accepts the applicant’s identity as claimed.

13. The applicant arrived in Australia [in] August 2019 from Nadi Airport. The applicant arrived on a Visitor Visa. He said that he was intending to come and spend his holidays in Australia for 3 months. He had wanted to visit various cities since it was his first trip.  

14. The applicant stated that he had previously worked overseas for 3 years. He had worked in [Country 1] although he was stationed in [Country 2] and went over the Border to work for [a specified client] for a [specified] company. He does not have the right to reside in any other country other than Fiji.

    Background Information

15. The applicant is one of [number] children, and he was born on [date]. His mother is still alive and lives with one of his brothers. [Number] of his siblings live in Fiji.

16. He grew up on Fiji’s second biggest island. He grew up on a family farm. His youngest brother is a [Occupation 1] in Brisbane. His mother has a sister who lived in Sydney. He went to Sydney initially as that is where they lived. He said they may have been in Australia for 20 years. They have relocated to [City 1] in Western Australia.

17. He said that he sends money to his sister who lives in [Fiji] for his mother as he supports her by sending funds every 2 weeks.

18. At the time that he came to Australia he had [number] children who lived in Fiji. He had married [Ms B] [in] August 2000. He has 3 children to her, a son and 2 daughters. The daughters are twins and one of the twins is married and lives with her husband. The other twin lives with her brother and he has a job. He said that his relationship with his wife [Ms B] has broken down irretrievably in 2020 whilst he lived in Australia.

19. He has another [number] children who live in Fiji.

20. He had been employed in Fiji [from] May 1991 [to] September 2001 by [Employer 1] as a [Occupation 2]. [From] 8 May 2002 [to] December 2004, he worked as a [Occupation 3] at [Employer 2]. He said that he then worked in [Country 1] for 3 years. He worked as a [Occupation 4] but also worked as a [Occupation 2] at [Employer 3] from April 2008 to the 28 November 2011. From November 20112 to April 2017, he was [Occupation 2] at [Employer 4]. He was employed from April 2017 to the 16 August 2019 at [Employer 5].

21. The Tribunal accepts the facts as set out from Paragraph 15 to 20.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The applicant said that he quit his job to come to Australia. He said that he had asked for time off from his job as he wanted to go on a holiday and his employers said no so, he left.

23. He said when he came to Australia he lived with friends/ cousin in Sydney. He said that one of the church members helped him make the application. He said he got his working rights and he started to work in a [Factory], [Employer 6] in [Suburb 1]. He worked there for 3 months. He said that he was receiving 27 dollars per hour. He said that he continued to work for the same company during covid as he was moved to the stores.

24. He said that when he stopped working there, he stayed home for 1 week. He had a call from an agency as he got a job at [Employer 7] in [Suburb 2]. He also got another job at [Employer 8]. He said that he moved to work in the [named] sector. He said that he worked from 2020 to July 2023 in Sydney but moved to WA to be with his partner.

25. He said that his partner’s eldest son lives in WA. He and his partner work for [Employer 9] in [Suburb 3]. They live in [Suburb 4] in rented accommodation. He said that he is registered as working part time but that requires him to work 7.5 hours a day 5 days a week.

26. He said he does not suffer from any significant ailments as he eats the right food, and he exercises.

27. He said that he had hurt his left foot and it got infected and did not heal properly when he arrived in Australia. He said that he became concerned as his experience when he lived in his home village and was in High School, 2 of his uncles had to have their feet amputated because of infection.

28. His claim was simply that the health system in Fiji is not good enough, but he added at the hearing, that that he feared that he would not earn sufficient funds to support the family in Fiji.

29. His present partner [Ms A] gave evidence that she has been in a relationship with him and that they have lived together for 3 years. She works at [Employer 9] as well in [sector].

30. She said that she has a Protection Application before the Department of Immigration that has not been dealt with. She was not sure whether the applicant had been included as a member of her family although the Department had sought an update from her last year, and she had told them his details as they live together. Her ex- husband who is the father of her children had his Visa cancelled as they had to separate since he was extremely violent to her. He is back in Fiji and she has claimed that she fears for her safety if she were to return to Fiji because of his violence and some stalking behaviour.

31. Whilst she was married and upon her arrival to Australia, she was the primary applicant on the application and therefore her former partner was a secondary applicant. She held a 457 visa for 4 years. The visa was extended until 2020.She said that she has [number] children. The eldest is [age] years of age. She said that she has applied for a Protection Visa for the Violence that she fears. She said that her case is yet to be determined by the Department. On the 8 August 2024 she sent an email to the Tribunal dated the 8 August 2024 as follows:”

    I am his partner [Ms A] and I am reaching out on behalf following our presence at the AAT Perth Office on the 29 July 2024 for his hearing.

    This is to inform your office and the Presiding Member that I have reached out to the Department of Immigration to request information, guidance and next steps to add [the applicant] to my children and I’s Visa application under Protection/ Domestic Violence from my ex-husband. I am the primary applicant on my visa application.

    Prior to attending the hearing at the Perth Office , the documents/ information provided in preparation , it was made known that after [the applicant]’s initial submission for his visa with the department of Immigration , he had a divorce, we started our relationship around 2020 in Sydney and we have since relocated to Perth around May 2023, the Department of Immigration had reached out for me to provide additional information / answers to their office regarding my children and I” application, one of which I made it known in my response that I am in a relationship with [the applicant].

    As such, I am requesting for your office and the Presiding member to kindly consider the above updates shared with your office in this email. Please let me know if there is any other requirements or steps we need to take with his matter.

32. At the hearing [Ms A] gave evidence regarding her Application for Protection. The violence that was perpetrated by her ex-husband to her, that she recounted to the Tribunal was at the very high end of the scale. Apparently, her former partner has a problem with alcohol use. The violence has had a detrimental effect on her children and her eldest son is having treatment through a psychologist. The Tribunal advised her that she should seek legal advice regarding her matter and check the status of her application.

33. There was no evidence before the Tribunal, that the applicant was acquainted with the former partner of [Ms A] and that the applicant would be targeted by the former partner of his partner if he returns to Fiji. He did not mention that he feared for his safety if he returned to Fiji. Her application was not before the Tribunal. The applicant did not provide a copy of her Application to the Tribunal. The Tribunal does not know if the applicant has been included on her application for Protection which is yet to be determined by the Department. The Tribunal urged the applicant to seek legal advice.

34. The Tribunal has considered the matters raised by [Ms A] in her email.

35. The Tribunal hearing was originally dealing with the applicant’s case based on the facts presented by the applicant on his application for protection which is that, he fears that the health system is not up to a standard that is acceptable and he fears that he will not be looked after well if he returns to Fiji.

36. Whilst giving his evidence the applicant mentioned that he was not sure that he could save funds in Fiji. The applicant was making a claim that he could not afford to return to Fiji because of the economic situation. However, he provided no further evidence or comment regarding that claim.

    Country Information

37. The world Bank defines Fiji as an upper middle-income country. Fiji is one of the largest economies in the Pacific Region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours.

38. Health care is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as “nursing stations” or “health centres”, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology, and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well maintained, and staff to patient ratios can be poor.

39. Healthcare is free to the patient, but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.  

40. The tourism sector was significantly disrupted by the Covid -19 pandemic. Some staff were retained during the pandemic, but many lost their jobs or returned to home regions. About 60 per cent of workers in the sector (pre- pandemic) were women. Relocation to work in tourist areas is common. The sector re-opened to international visitors in December 2021.

    Refugee Criterion

41. Section 5J of the Act states, that for the purposes of application under the Act a person has a well-founded fear of persecution, if the person fears being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.

42. The applicant has claimed in his Protection Application that there is a real chance that he will be seriously harmed if he is returned to Fiji as he will not be able to save any money from his employment and that he will be at risk because the medical treatment provided in Fiji is not very good. He claimed that 2 of his uncles had their feet amputated because of illness and he worries that this will happen to him if he returns to Fiji. He said it happened many years ago when he was still in High school. The Tribunal accepts that he is apprehensive because of what his experience has been in the past, but there is no evidence before the Tribunal that the applicant suffers from any ailments now, which would result in such drastic measures. He did say in his evidence that he is doing well physically as he looks after himself and eats the right foods. He has been able to work since his arrival from Fiji in Australia and recovered and does not suffer from ill health presently. The applicant grew up with his family on the second largest island in Fiji, and is likely to be able to find employment and medical treatment as he does not live on the outer islands.

43. Given the vague nature of the applicant’s claims and lack of evidence provided by the applicant the Tribunal does not accept that there is any evidence that he will be unable to access medical treatment or to find employment. Whilst the applicant lived in Fiji he was very resourceful and found employment. Accordingly, based on the applicant’s own evidence, the Tribunal finds that there is not a real chance that the applicant will be seriously harmed if he returns to Fiji as he lived in Fiji for most of his life, and he provided for the family prior to his arrival in Australia in 2018.

44. The Tribunal read out the country information to the applicant.

45. The prospect of finding work in Fiji based on the applicant’s circumstances and to obtain medical treatment does not amount to the applicant facing a harm that can be considered serious harm pursuant to section 5J (5) of the Act. That is, the Tribunal finds that any economic hardship the applicant incurs will not amount to serious harm in the sense that it would threaten his capacity to subsist. The Tribunal finds that given his work experience and motivation for work the applicant will not be denied the capacity to earn a living that would threaten his capacity to subsist, nor would he be denied basic services where such denial would threaten his capacity to subsist. The country information suggests that the applicant will be able to access medical specialist treatment if he is unwell. There is no evidence before the Tribunal that he is suffering ill health presently or that he will be ill soon. Accordingly, the Tribunal finds that there is no real chance the applicant would be seriously harmed if he returned to Fiji by reason of the economic circumstances.

46. Therefore, having considered the applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a real chance of serious harm arising from economic circumstances for reasons mentioned in section 5J (1) of the Act or any other claimed reasons if he was to return to Fiji from Australia now or in the reasonably foreseeable future. As such the Tribunal finds that he has not satisfied the criterion in section 36(2)(a) of the Act.

    Complimentary Protection criterion

47. The Tribunal also considered whether the applicant meets the complimentary protection criterion under section 36 (2) (aa). The real risk test imposes the same standard as the real chance test applicable to the assessment of well-founded fear. MIAC v SZQRB (2013) FCAFC 33.

1. The Tribunal has considered whether as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from an economic claim and/or lack of medical treatment if he is returned to Fiji. As such, it is found that there was no real chance that the applicant will be seriously harmed if returned to Fiji. As the” real risk test” is the same as the “real chance” standard, it follows that the Tribunal does not accept that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia that there is a real risk of significant harm, including torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment.

2. The applicant will not face a real risk of significant harm arising from his economic circumstances and his ability to find employment. The applicant will not face significant harm because of a lack of medical treatment in Fiji. Significant harm is different from the concept of serious harm as required by section 5J (4)(b) in the context of section 36 (2)(a). The Tribunal has already made a finding that the applicant has the capacity and inclination to find work anywhere in Fiji. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support himself it does not accept, he will not be able to find paid employment anywhere in Fiji in circumstances where he has been previously employed. For the reasons expressed above and based on the available country information, the Tribunal has found that the applicant will be able to find employment in Fiji. As a result, the Tribunal finds that there is no real risk that the applicant will suffer significant harm if he is returned to Fiji by reason of his inability to earn a living to support himself. Given his work experience and based on the available country information the Tribunal finds that as a necessary and foreseeable consequence of being removed from Australia the applicant will not be significantly harmed as required by section 36(2) aa of the Act.

3. The Tribunal has already made a finding that the applicant should be able to access medical treatment, based on the country information. Furthermore, the Tribunal finds that there is no real risk that the applicant will suffer significant harm if he is returned to Fiji. He does not suffer from ill health presently. The Tribunal finds that as a necessary and foreseeable consequence of being removed from Australia the applicant will not be significantly harmed as required by Section 36(2) of the Act as he would be able to access medical treatment..

4. At no stage has the applicant advanced any other reason in his written or oral claims that he is owed Australia’s protection obligations. Accordingly, the Tribunal finds that there are no more claims, including based on the applicant’s accepted circumstances to be considered. As such having regard to all the circumstances and findings above considered individually and cumulatively, the Tribunal finds that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is no real risk the applicant will suffer significant harm if he is returned to Fiji pursuant to section 36 (2) (aa) of the Act.

   CONCLUDING PARAGRAPHS

5. 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).

6. 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).

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

   DECISION

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

   Noelle Hossen
   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.

   …