2013419 (Refugee)

[2024] AATA 3450

2013419 (Refugee) [2024] AATA 3450 (17 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013419

COUNTRY OF REFERENCE:                   China

MEMBER:B. Mericourt

DATE:17 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 17 July 2024 at 11:42am

CATCHWORDS
REFUGEE – protection visa – China – witness to murder by policeman – detained and threatened – application prepared by agent and claim discontinued at hearing – fear of harm from gang members hired by property developers – house appropriated with inadequate compensation and later demolished – beaten, injured and threatened, and late claim of arbitrary detention – complaints to government – new claims accepted but inconsistent and confused claims and evidence and escalating claims of harm – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulation 1994 (Cth), Schedule 2

CASE
SZLVZ v MIAC [2008] FCA 1816

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 August 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 China, applied for the visa on 1 June 2018. The delegate refused to grant the visa on the basis that s/he was not satisfied that the applicant had a well-founded fear of persecution or that there is a real chance he will be persecuted for one or more of the reasons mentioned in s5J(1) of the Act if he returns to China. Nor was the delegate satisfied that there is any real chance the applicant will suffer significant harm as defined in s36(2A) of the Act if he returns to China.

3. The applicant appeared before the Tribunal on 12 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   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.

   Receiving Country

10. The applicant claims to be a citizen of China. He provided a copy of the bio data page of his Chinese passport to the Department. The Tribunal accepts that he is a citizen of China based on the findings made by the Department. The Tribunal finds that China is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.

    Third Country Protection

11. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country other than his country of nationality.

    BACKGROUND

12. The applicant is a [Age]-year-old divorced man from Shandong Province, China. His ex-wife, [Age]-year-old daughter and mother reside in China. The applicant was divorced while he was in Australia in July 2022. He speaks to his mother once or twice a month using Wechat. He has no contact with his ex-wife and daughter. He occasionally sends some money to his elderly mother.

13. The applicant completed middle school in [Year]. In his protection application the applicant said he had never been employed. At the hearing he said that he worked in a [workplace] as [an occupation] in China. In Australia he has been working as [an occupation] in a [workplace].

14. The applicant entered Australia on 1 March 2018 as the holder of a visitor visa. He lodged his application for protection on the day his visitor visa ceased.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issues in this case are whether the applicant has a well-founded fear of persecution if he returns to China and if so, does he meet the refugee provisions of the Act? If not, does the applicant meet the protection obligations under the complementary provisions of the Act?  

16. The Tribunal has before it the Department’s file relating to the applicant including the delegate’s decision. The Tribunal also has had regard to other material available to it from a range of sources. This includes, but is not limited to the following:

    ·the applicant’s claims for protection in his application form dated 1 June 2018;

    ·the applicant’s evidence at the Tribunal hearing on 12 July 2024;

    ·Department of Foreign Affairs and Trade (DFAT) Country Information Report – People’s Republic of China, 22 December 2021;

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Refugee Law Guidelines and PAM3 Refugee and Humanitarian – Complementary Protection Guidelines;

    ·Other relevant country information referred to below.

    Applicant’s claims in his written application for protection to the Department

17. The applicant claims he will be harmed by the police in China as he witnessed a police officer commit a murder. The applicant promised him he wouldn’t tell anyone what he witnessed but the police officer is very cruel and the applicant believes he will try to kill him so no-one will find out about his crime. The police officer locked him in a room for several days without food or water, refusing to let him have visitors and threatened to kill both him and his family if he ever tells anyone. To resolve this problem and secure the safety of his elderly parents he decided to come to Australia. He cannot seek protection as it is a powerful police officer who threatened him.

    Applicant’s claims at the Tribunal hearing

18. During the hearing the Tribunal discussed with the applicant his family composition, work history, residential history and visa and migration history which are outlined under the heading Background above. The Tribunal then went on to discuss the applicant’s claims and reasons he fears returning to China.

19. The applicant said that he came to Australia in March 2018 to hide from people who were chasing him. He went to an agent in Australia who was recommended by someone else who was a tenant in the house where he rented a room when he arrived. The agent told him that he was unlikely he would be approved for a protection visa because the things that happened to him were not serious enough. The applicant said he still wanted to apply, but he did not know what claims the agent had put in his written application.

20. The Tribunal told the applicant that in his written application he claimed to fear harm from a police officer whom he had witnessed committing a murder. The applicant said that this was not true and he assumed the agent must have created that claim. The people he actually feared in China were gang members hired by the developers who wanted to demolish his house.

21. The following evidence the applicant gave to the Tribunal was confused and it was sometimes difficult to understand to whom he was referring and the sequence of events. The following are details relating to the applicant suffering harm from various authorities including the Public Security Bureau allegedly over a three-year period.

22. The applicant had a one-storey house in [Town], Weihai City, Shandong Province. In 2015 he was told that developers wanted his house to build a high-rise development. He was initially offered compensation which was not acceptable. His neighbours’ houses were also appropriated and everyone thought it was unfair.

23. Together with other neighbours the applicant went to the local government to protest and he also went on his own. He had been offered 1300 yuan per square metre and he and other people wanted 2000 yuan per square metre. He was advised to negotiate with the developer but the developer also refused to increase the compensation offered. They then sent people to demolish his house without his permission. They did not demolish his neighbours’ houses at that time because his house was a bit outside the village and theirs were inside the village. They demolished the other villagers houses later.

24. When the demolishers first came to the applicant’s house he and his family were still living there. He fought with a member of the law enforcement team who came with the demolition team. His wife was at work and his daughter was at school at the time. He was injured but not seriously and they left. They later sent 4 people to evict him. They tried to get him to sign a contract which he refused to do. They beat him and he had a mild concussion for which he went to hospital briefly. He was threatened by these people that if he didn’t sign they would beat him to death.

25. They returned about 6 weeks later for the third time with big machines and started the demolition process. They tried to force him to sign the contract but he continued to refuse. The applicant fought with them again and he was seriously injured when they cut the artery in his leg. A neighbour found him and took him to hospital and he was there for about 3 months. His wife and daughter stayed in a friend’s house while he was in hospital. After he was discharged from hospital he complained again about nothing happening and consequently was detained for 15 days by the Public Security Bureau (PSB). He was not charged with anything. The applicant made this claim at the end of the hearing and had not mentioned it before.

26. After he was released from detention he and his family went to Weihai City and rented a place there. The applicant tried to complain to the government but he got no response. He first went to the local official authorities and then to the PSB. The applicant reported the people who beat him to the PSB about his injuries. They said they could not catch the gangsters and he got no further response. Neither took any responsibility for what had happened. He continued to try to get increased compensation for a year and continued petitioning. His neighbours also tried to get increased compensation.

27. The second time he tried petitioning they sent someone to the place he and his family were renting one night and beat him. He thinks they were gangsters hired by the demolition people. He continued to petition. About 3 weeks later they came again and beat him and threatened to harm his daughter if he continued to petition. He agreed to stop and after they left he told his wife and daughter to move to Tieli City in Heilongjiang Province and hide, which they did.

28. After they moved again the applicant did not stop petitioning. ‘They’ found him again, beat him again and again threatened his and his family’s lives. He was injured and went to hospital for rib fractures. He still continued to petition because he felt it was so unfair and the officials were covering for each other.

29. The applicant said, in total he was beaten 6 or 7 times and was hospitalised twice. The second time people came to the hospital so he ran away. He no longer has any evidence of his hospitalisations. The applicant said he eventually came to Australia because he feared for his life.

30. The applicant said that this sequence of events started in 2015 and continued over a 3-year period until 2018 when he departed China. After he arrived in Australia he continued to phone the PSB to complain. They delayed responding and said they were trying to find the people who beat him. The last time he called was September 2019.

31. The applicant said if he returned to China now he thought he would still be pursued by these people as he had petitioned and complained so many times and they are very powerful. He heard from his wife that an uncle lost a high-ranking job in the government as a consequence of his constant petitioning and so they would still take revenge on him for petitioning. After he came to Australia they continued to harass his wife and that is the reason for their divorce in 2022.

32. The Tribunal asked how they found his wife given she had moved to a different city. He said that his wife and daughter returned to Weihai City because his daughter had to continue her studies there as that is the only place she could study. The applicant had already left China by then. The Tribunal asked why they would look for and find his wife and harass her some years after he had departed. He said they wanted to cause trouble to his family so he would return and they could take revenge on him. This is why his wife decided to divorce him. The Tribunal asked if these people had threatened any other members of his family such as his mother. He said that they had not threatened his mother who is elderly and never leaves the house. She lives in his younger sister’s home also in Weihai city.

33. When asked how they would know the applicant had returned to China if he was to return now six years after these events, the applicant said that they could get information from many channels and they would find him. Even if he returned to anywhere in China they could find him.

34. The Tribunal put its concerns to him about the unlikelihood that anyone would be seeking revenge about his continuous petitioning six years after he had departed China, the house having been demolished 9 years ago and the development completed. He said he doesn’t know how they would find him but referred to an uncle who had lost his high-paying government job and so would want revenge. This person was very well connected. It was not clear to the Tribunal despite constant attempts to clarify who this “uncle” was and how he was connected to the applicant’s claims.

35. At the conclusion of the hearing the applicant said he does not want to return to China as he no longer has any family there except his mother and younger sister.

    Country information about land disputes in China

36. Country information indicates that land appropriation without adequate compensation is not an unusual problem in China. Land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villagers. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation. Disputes are generally complaints against local government which may escalate to the national government.[1] China’s new Civil Code (which came into force 1 January 2021, after the applicant’s dispute) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs’ , who intimidate protesters or cut utility supplies, have been used and are allegedly hired by local governments.[2]

    [1] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report - People's Republic of China, 22 December 2021, p.25

    [2] Ibid, p.25

37. Disputes with government may be raised at petitioning offices, a type of government service office. Millions of disputes are raised every year. Local authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means local authorities are incentivised to retaliate against petitioners, which might include bringing charges such as “picking quarrels and provoking trouble”. While examples of violence and, in extreme cases, deaths are reported, many complaints are resolved through the petitioning process.[3]

    [3] Ibid, p.25

    Assessment of the applicant’s claims and findings

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

    Credibility

39. When assessing claims the Tribunal must make findings of fact based on whether the claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[4] Applicants may have difficulties presenting evidence due to experiences in their home countries. These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[5] The Tribunal is conscious and mindful that there may be factors that consciously or otherwise influence how evidence is presented and that it should be careful of basing findings on assumptions. The Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility, which reinforce that the Tribunal should approach the assessment with an open mind.[6] The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[7]

    [4] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3]

    [5] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, Ibid

    [7] SZLVZ v MIAC [2008] FCA 1816 at [25].

1. Nevertheless, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, and the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence.[8]

   [8] Subsection 423A of the Migration Act 1958 (Cth)

2. The Tribunal had regard to the fact that the claims about land appropriation, demolition of his house, lack of adequate compensation and his subsequent activities protesting and petitioning authorities were not part of the applicant’s written claims for protection. The applicant stated at the start of the hearing (before it had even commenced) that he did not know what was in his protection application even though he had told the agent assisting him what had happened to him. When told of the claims in his written application the applicant resiled from these claims saying they were not true.

3. Nevertheless, the Tribunal is willing to accept the applicant’s claims about appropriation and demolition of his house without what he considered to be adequate compensation as the DFAT report indicates this is not an uncommon situation.

4. The Tribunal is willing to accept the applicant, together with other villagers affected by the demolition of their homes, protested about the compensation amount and petitioned the relevant authorities, and that they received either no response or an inadequate response.

5. However, the applicant’s claims about the harm that he suffered at the hands of people associated with the developer, local authorities and/or the PSB were increasingly escalated during the hearing, confused in chronology and difficult to understand about whom he was speaking despite constant attempts by the Tribunal to clarify what he meant.

6. The Tribunal had regard to the fact the applicant only added claims about being detained by the PSB at the end of the hearing and he could not identify who ‘the uncle’ was (not his uncle) or his role in threatening future harm. He appeared to be claiming that, despite the harm he suffered, the continuing threats of serious harm or death made to him and his family and the fact that he was singularly unsuccessful in achieving any of his aims (compensation, finding people who had injured him and so on), he continued his petitioning and protests for three years. The applicant had no medical evidence of his alleged injuries or evidence of his hospitalisations. Furthermore, the applicant’s claims that some years after he had left China his wife and daughter were harassed by the same people who somehow discovered they had returned to Weihai city, appear somewhat implausible. The Tribunal also finds the applicant’s evidence that he continued to telephone the PSB from Australia about his claims until 2019 also to be implausible.

7. Taking into account the inconsistencies and incoherence of much of the applicant’s evidence and his escalation of claims, the Tribunal finds the applicant to not be a witness of truth in respect of the extent of the harm he experienced in China as a consequence of his petitioning, the claims related to the harassment of his wife and daughter or the timescale of his alleged continuous petitioning. Accordingly, the Tribunal finds that none of these claims are true.

8. The Tribunal is satisfied that there is no real chance or real risk the applicant will suffer serious or significant harm from local authorities, the PSB or any other authority or person for reasons of his petitioning and protesting about his home’s demolition, inadequate compensation or complaints about injuries he suffered or for any other reason, if he returns to China now or in the reasonably foreseeable future.

   CONCLUSION

9. 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).

10. 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).

11. 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

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

    B. Mericourt
    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.

    …