2016493 (Refugee)

[2024] AATA 3225

2016493 (Refugee) [2024] AATA 3225 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Alla Giller (MARN: 0210079)

CASE NUMBER:  2016493

COUNTRY OF REFERENCE:                   Ukraine

MEMBER:Catherine Wall

DATE:29 May 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 29 May 2024 at 10:59am

CATCHWORDS
REFUGEE – protection visa – Ukraine – Donetsk – Russian occupied zone – economic hardship – denial of basic services – capacity to subsist – nationality – actual or imputed political opinion – internal relocation – decision under review remitted

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

CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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 2 November 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is an [age] year old citizen of Ukraine. She last arrived in Australia [in] August 2015 and applied for the visa on 19 July 2016.

3. The delegate refused to grant the visa on the basis that the applicant was not owed protection by Australia. The applicant was not invited to an interview with the department. She applied for review of that decision on 10 November 2020.

4. The applicant appeared before the Tribunal on 24 May 2024 to give evidence and present arguments. She was represented at the hearing by Ms Giller. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. The Tribunal also took evidence from the applicant’s daughter, [Ms A].

   CLAIMS AND EVIDENCE

5. A summary of the applicant’s claims as detailed in her protection visa application are as follows:

   She was living in Donetsk in 2014 when full scale heavy fighting took place. Her daughter told her to run away from Donetsk. She went to Kiev where she stayed in a hotel however it was very expensive and she had no friends or relatives there.

   Her husband died in 2012 and her 2 daughters live overseas, one in [Country 1] and one in Australia. They are unable to assist her financially as the Donetsk banking system is no longer functioning.

   She is old and in poor health. Without the support of her children she would die. She wants to stay in Australia with her daughter where she is safe.

6. Prior to the hearing the applicant submitted the following information in support of her claims.

   a.A personal statement signed by the applicant.

   b.A detailed submission from the applicant’s representative addressing the applicant’s claims with references to country information.

   c.A letter from the applicant’s general practitioner dated 15 March 2024 which details her medical conditions.

   d.Situational updates on Ukraine from UNHC R and Impact.

   e.An article title “Forced Passportization in Russia-occupied areas of Ukraine”, Yale School of Public Health, 2 August 2023.

   f.“They live in the dark: older people’s isolation and inadequate access to housing amid Russia’s invasion of Ukraine”. An article from Amnesty International, dated 2023.

   g.Update on Ukraine from smarttraveler.gov.au.

   h.Ukraine travel advice gov.uk.

   i.Letter from the applicant’s optometrist.

   j.Letter from the applicant’s general practitioner dated 23 May 2024 advising of the applicant’s frail health and vulnerability.

   k.Advice from the Department’s website regarding protection visas for citizens of Ukraine.

   l.An article from the Kharkiv Human Right Protection Group titled “Russia’s fake ‘Donetsk republic’ moves to appropriate Ukrainian’s homes on occupied territory dated 27 March 2024”.

   Claims

7. The comprehensive evidence and country information submitted by the applicant’s representative provides a detailed account of the applicant’s background, reasons for leaving Ukraine and her inability to return. This information enabled me to focus my questions at hearing, mindful of the applicant’s significant health problems. She has limited mobility, significant hearing impairment, some visual impairment and is generally frail. At hearing, however, I found that the applicant gave clear, detailed responses to questions and had a sound understanding of her protection claims.

8. The applicant’s evidence is that she was born in the USSR and moved to Donetsk in 1961 when she married her husband. Upon the dissolution of the USSR she acquired Ukrainian nationality. She is not a citizen of any other country and does not have a right of entry and residence in a third country. She has two daughters, one now living in [Country 1] and the other living in Australia. Her husband died in 2012 and she lived alone in their apartment in Donetsk from that time.

9. In 2014 the applicant felt that she was unable to remain in Donetsk because of the violence surrounding her. There was constant fighting between Russian separatists and the Ukrainian government for control over the Donetsk oblast, in particular the Donetsk airport. Her daughter urged her to leave the area immediately, so she took the train to Kiev where she stayed in a hotel for one month. The day after she left, the railway station near her home was demolished by shelling. The applicant said that she could not stay in Kiev as an older, single woman because it was too expensive, she had limited funds and had no friends or relatives in the area. She travelled to [Country 1] for one month to spend time with her daughter [Ms B], then came to Australia where she applied for the protection visa. The applicant has been living with her daughter and grandchildren in Melbourne since 2015.

10. When asked what she knows about the current situation in Donetsk, the applicant said that she knows that her apartment building was demolished by shelling and her vegetable garden is gone. She said that she feels so sorry for the people that remain. She keeps in contact with her sister who lives in Kherson. Her sister is finding it very hard living through this war as there is constant shooting and often they have no water and no power.

11. In her statutory declaration the applicant said that she is a Ukrainian citizen and she has no intention of ever becoming a Russian citizen, which is now a requirement for those returning to Donetsk. While she was never politically active, her political opinion was known to her neighbours and the wider community, many of whom could now be collaborating with the Russian occupation authorities.

12. The applicant’s daughter, [Ms A], said that her mother is very frail, takes many medications and requires assistance with daily activities of living. She is not well enough to travel and would not survive in Ukraine as an elderly, frail woman without support. She no longer has a home and would have no income. [Ms A] expressed concern that her mother would be subject to abuse and ransom, because she would be known to have family living abroad and therefore it would be assumed that she has money. She would also be considered to be a Ukrainian sympathiser.

13. The representative submits that the applicant cannot return to Donetsk because it is a Russian occupied zone, she has no home, she has no family or friends to support her and she will be considered a political dissident as she refuses to become a Russian citizen. The representative also submits that it would be unreasonable for the applicant to relocate in Ukraine because all areas of Ukraine are subject to attack by Russian military and the applicant is extremely vulnerable because of her age and sex, her poor health, her limited financial resources, her inability to travel and the difficulties she would face in obtaining suitable housing. 

    CRITERIA FOR A PROTECTION VISA

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

19. 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.

    ASSESSMENT

    Identity

20. The applicant’s nationality is not an issue. She travelled to Australia on a valid Ukranian passport and has consistently stated in documentation that she is a national of Ukraine. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Ukraine and I have assessed her claims against Ukraine as her receiving country.

    Country information

21. Firstly, I acknowledge that the delegate’s decision was made on 2 November 2020 when the situation in Ukraine was quite different from the current situation. Ukraine was invaded by Russian forces on 24 February 2022. The situation in Ukraine has deteriorated significantly over the past 2 years and has resulted in massive civilian displacement, grave human rights violations and large-scale damage and destruction of civilian infrastructure. It is estimated that 14.6 million people will be in need of multisectoral humanitarian assistance.[1] The latest situation update from United Nations High Commissioner for Refugees (UNHCR) states that 6,203,600 refugees from Ukraine have been recorded globally of which 5,831,200 refugees have been recorded across Europe.[2]

    Donetsk

    [1] Ukranian Crisis: Situational Analysis. IMPACT.5 March 2024.

    [2] 'Ukraine Situation Flash Update #57 (13 October 2023)', United Nations High Commissioner for Refugees (UNHCR), 13 October 2023, 20231019144459

22. Russia annexed the Donetsk, Kherson, Luhansk and Zaporizhzhia regions of Ukraine following sham referendums held in September 2022. On 30 September 2022, the Russian President signed the so-called ‘Treaties of the Accession of the Donetsk People’s Republic, the Lugansk People’s Republic, the Zaporozhe Region and the Kherson Region to the Russian Federation’ supposedly annexing and therefore applying Russian law in these occupied territories. On 12 October 2022, the United Nations General Assembly condemned the illegal annexation following which it backed a resolution that reaffirmed the sovereignty and territorial integrity of Ukraine.[3] Following the annexation, on 19 October 2022, the President of the Russian Federation signed a decree imposing martial law in Donetsk, Kherson, Luhansk and Zaporizhzhia regions which allows the occupation authorities to impose curfews, arrest individuals, seize property, restrict freedom of movement, freedom of association and political activities.[4]

    [3] 'UN condemns Russia’s move to annex parts of Ukraine', Al Jazeera, 12 October 2022, 20230405100900

    [4] 'Putin Declares Martial Law in 4 Illegally Annexed Ukrainian Regions', Andrew E. Kramer and Neil MacFarquhar, The New York Times, 19 October 2022, 20221021080256

23. Reports state that the Russian Federation has strengthened its policy to force residents of occupied areas of Donetsk, Kherson, Luhansk and Zaporizhzhia oblasts to accept Russian citizenship and Russian passports. Residents of these Russian-occupied areas are subjected to threats, intimidation, restrictions to humanitarian aid and basic services and likely detention or deportation – all of which are designed to force individuals to become Russian citizens.[5]

    [5] 'Report on the human rights situation in Ukraine, 1 February to 31 July 2023', United Nations Office of the High Commissioner for Human Rights (OHCHR), 4 October 2023, p. 22, 20231006113315; 'Forced Passportization In Russia-Occupied Areas Of Ukraine', Yale School of Public Health, 2 August 2023, pp. 7-8, 20230807121219

24. The updated July 2023 report by the United Nations Office of the High Commissioner for Human Rights (OHCHR) has documented conflict-related detentions, killings, arbitrary detentions, forced relocation of individuals including children, conflict-related sexual violence, mistreatment of prisoners of war and forced conscription in Russian-occupied regions. OHCHR has also documented restrictions on freedom of assembly and association, religion or belief, opinion and expression. The report advises that, since 24 February 2022, OHCHR documented killings of 521 civilians by Russian armed forces through summary executions or attacks on individual civilians. Interlocutors informed OHCHR that they feared that anyone could be detained, killed or disappeared in areas that were under Russian military control.[6]

    Broader Ukraine

    [6] 'Report on the human rights situation in Ukraine, 1 February to 31 July 2023', United Nations Office of the High Commissioner for Human Rights (OHCHR), 4 October 2023, 20231006113315

25. The humanitarian situation in Ukraine has worsened rapidly since the escalation of the conflict in February 2022. The conflict has continued to worsen throughout 2023 due to relentless strikes and fighting on the ground causing deaths, destroying livelihoods and civilian infrastructure generating rising humanitarian needs. Although attacks on power infrastructure decreased towards February 2023, schools, homes, water systems and hospitals continued to be targets in the following months. Due to fighting intensifying in front-line communities of Donetsk oblast, access to provide humanitarian assistance became difficult.

26. According to Armed Conflict Location and Event Data Project (ACLED) a total of 73,900 political violence incidents have occurred in Ukraine since the start of Russia’s full-scale invasion on 24 February 2022.[7] Between 1 February 2023 and 31 July 2023, 64 per cent of civilian casualties caused by shelling and multiple launch rocket system attacks occurred in communities on or near the frontline in Donetsk, Kherson, Zaporizhzhia and Kharkiv oblasts. The armed conflict in Ukraine remains ongoing and the security situation is unpredictable across the country due to active hostilities.

    [7] Data as of 23 October 2023 from the ACLED Ukraine Conflict Monitor Link: >

    A 2023 Amnesty International report found that older people, who make up one-fourth of Ukraine’s population, have faced unique violations of their human rights since Russia’s full-scale invasion. Disproportionately among those killed or injured during the conflict, they also struggle in displacement to access housing, support services, and healthcare on an equal basis with others. Many are displaced to safer parts of Ukraine, but they often face insurmountable hurdles in their efforts to rebuild an autonomous and dignified life, struggling to access housing, support services and healthcare on an equal basis with others. “Because most temporary shelters are physically inaccessible to older people with disabilities, and private accommodation is unaffordable to them due to extremely low pensions and rising rents, older people in Ukraine are often placed in segregated institutional settings, where they are isolated from their communities and loved ones.” [8]

    [8] Ukraine: “They live in the dark”: Older people’s isolation and inadequate access to housing amid Russia’s invasion of Ukraine - Amnesty International

    Findings

27. The issue in this case is whether there is a real chance that the applicant will face serious harm if she returns to Ukraine. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

28. The country information is overwhelmingly consistent and clear that Donetsk is an occupied territory and that Ukrainian citizens are being subjected to violence, intimidation, denial of basic services and seizure of their property. There are restrictions on freedom of association, religion and opinion. The situation is worse for those Ukrainians who refuse to become Russian citizens and obtain Russian passports.

29. I accept that the applicant is a citizen of Ukraine and previously lived alone in Donetsk. I accept that her apartment building no longer exists after shelling and that her sister is her only remaining family in Ukraine. I accept that her sister lives in Russian occupied Kherson and is struggling to survive in a conflict zone.

30. I find that the applicant is [age] years old, in poor health and has no family or other support network in Donetsk. I accept that she no longer has a home to return to and would be unable to care for herself. Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test.  I find that there is a real chance that the applicant, as a Ukrainian citizen in a Russian occupied zone, will suffer significant economic hardship and will be denied basic services, the consequence of which will threaten her capacity to subsist. I find that the Russian occupation forces are a threat to her life and liberty and may cause her significant physical harm. Accordingly, I find that there is a real chance that the applicant will face serious harm if she returns to Donetsk.

1. On the evidence before me I am satisfied that if the applicant returns to Ukraine she will be regarded as a supporter of the Ukraine government and opposed to Russian occupation. This will make her a specific target of Russian occupation authorities.  I find therefore that the persecution faced by the applicant is for a refugee nexus reason as it is because of her nationality, being Ukrainian, and because of her actual or imputed political opinion.

2. I do not accept that the applicant can reasonably relocate within Ukraine. Country information reports that the entire country is subject to Russian attacks and that the ongoing war has caused a significant deterioration across the country in relation to security, infrastructure and the economy. I agree with the representative’s submission that the applicant’s age, poor health and need for daily care makes it impossible for the applicant to relocate in a war-torn country. Having regard to country information and the applicant’s specific circumstances, I find that it is not reasonable or practical for her to relocate given the current military conflict across Ukraine. I find that she cannot be safe anywhere in Ukraine: s.5J(1)(c).

3. I find that the applicant’s nationality and actual or imputed political opinion is the essential and significant reason for the persecution, and that the persecution involves serious harm as it amounts to a threat to her life and liberty, significant physical harassment and significant physical ill-treatment as listed in in s.5J(5). I find that the persecution involves systematic and discriminatory conduct as required by paragraph s.5J(4).

4. I find that the applicant cannot be required to alter or conceal her nationality or political opinion because these are innate or immutable characteristics fundamental to her identity: s.5J(3)(a),(b).

5. I have considered whether the applicant can access effective protection from the state or other entities. Section 5LA(1)(b) requires that the relevant State, party or organisation must be both willing and able to offer relevant protection. For a State, party or organisation to be taken to be able to offer protection, the protection must also be durable: s 5LA(2)(b). The joint judgment in MIMA v S152/2003 refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’, or a ‘reasonably effective police force and a reasonably impartial system of justice’.[9] Thus s 5LA(2)(c) sets a minimum threshold for the protection that a State must provide. However, even where the protection meets the s 5LA(2)(c) requirements, the State will not be taken to be able to provide protection unless the applicant can actually access the protection. As the Ukraine government is currently fighting a war with Russia and various areas of Ukraine are under Russian control, I find that the Ukrainian authorities are not able to offer effective protection measure to the applicant and that the applicant would not be able to access effective protection measures if returned to Ukraine.

   [9] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26], [28].

6. I am satisfied that there is no evidence before me which indicates that the applicant has a right to enter and reside in a country other than her home country of Ukraine. Therefore, the I find that s.36(3) of the Act does not apply to the applicant in this case.

7. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   DECISION

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

   Catherine Wall
   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.

   …