2017391 (Refugee)

[2024] AATA 1506

2017391 (Refugee) [2024] AATA 1506 (25 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2017391

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Carolyn Wilson

DATE:25 January 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 25 January 2024 at 4:20pm

CATCHWORDS
REFUGEE – protection visa – Fiji – economic conditions, unfair treatment by employer and outstanding education loan – departed when leave without pay not approved, then dismissed – no documentary evidence – country information – education loan debtors required to apply for travel release and pay fee – employment in Australia – staff and skills shortages – late claim of family violence and coercive control – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), 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 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 19 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, who claims to be a citizen of Fiji, applied for the visa on 6 February 2020. The delegate refused to grant the visa on the basis that they did not accept the applicant faced a real chance or real risk of harm from the Fijian authorities because she had not repaid her scholarship, nor that she faced real chance or real risk of harm for reason of the economic situation in Fiji.

3. The applicant appeared before the Tribunal on 16 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from her brother [Mr A] and a senior manager at her Australian workplace [Ms B].  

   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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant claims to be a Fijian national from [Town 1]. She provided a copy of her Fijian passport and other documents in support of this. Based on the evidence before me I am satisfied the applicant is a Fijian national and find Fiji is her receiving country.

11. The applicant came to Australia in December 2019 on a Tourist visa. She had visited Australia multiple times before for holidays and once for a conference. Her last visit, before coming in 2019, was in 2018.  She lodged a protection visa application in February 2020. In her application she described herself as a married woman, but did not provide the name of her husband. When detailing her family in the application she included only her mother and her oldest son in Fiji, and a cousin living in Australia. She later declared she has a second child, and provided a copy of his birth certificate to the Tribunal.

12. In her protections visa application the applicant claimed to have left Fiji, and to fear returning, for the following reasons:

    ·     She left Fiji because of unfair treatment by her employer due to her standing up for her rights. They issued her with a disciplinary notice and stopped paying her income. Her employer will release her personal information to the government and other agencies, impacting her ability to find future employment.

    ·     She was the victim of a scholarship scam that she had been awarded to complete her university studies. Now the government is claiming she must pay it back, without giving her records on how much she must pay or an opportunity to query it.  She was banned from leaving Fiji because of this issue.

13. At the hearing on 16 January 2024 the applicant said these reasons are true, but she sees now she should have sought more advice and applied for a different visa. She applied for the Protection visa because she wanted to stay and work in Australia and it was the cheapest visa she could apply for.

14. The applicant maintains her employer treated her unfairly. She said she had been working as [an Occupation 1] for the same employer in [Town 2] since 2012. She applied for leave without pay when she came to Australia for a holiday in 2019. There was email communication between her and her employer and she discovered the leave without pay was not approved. She provided a copy of a disciplinary notice dated 28 January 2020 which stated she had been due to report to work on 13 January, had failed to provide justifiable reasons for taking leave without pay, and had not indicated a time frame by which she would return. She was threatened with the termination of her work contract if she did not provide reasons for her absenteeism by 30 January 2020 and information on when she would return.  The applicant says her employer terminated the contract, leaving her unable to support her family. I asked her what she meant by being treated unfairly due to standing up for her rights. She confirmed she was talking about her application for leave without pay, and that she believed she had a right to seek and be granted unpaid leave.

15. I accept the applicant was not granted leave without pay and that her employment contract was terminated when she did not return to work. There is nothing however to suggest the termination of her employment was for any of the reasons in s.5J(1)(a). The applicant speculates her past employer has released details of her disciplinary notice or termination to the government or other agencies, impacting her ability to apply for future jobs. There’s no evidence her previous employer has done so or threatened to do so, and I consider this claim farfetched. The applicant is well educated and has worked consistently in Fiji and Australia. Future employers may check with her previous employer at the [Workplace] for a reference, but even if the previous employer disclosed the issues raised in the disciplinary notice, the applicant could explain the situation where she believed the leave was approved and that she was unable to return to work by the due date as she was out of the country. The applicant also has a supportive employer in Australia who would give her a reference, as they have done so to the Tribunal. I am not satisfied on the information provided that she would be denied the capacity to earn a livelihood. I do not accept she faces a real chance of harm in the reasonably foreseeable future because she received a disciplinary notice or had her employment contract terminated.

16. In relation to her scholarship, the applicant said she had been paying that back by way of service, that is, by working in Fiji. When she came to Australia she was required to pay 600 Fijian dollars (around AUD 400) to exit the country. She fears she will be banned from leaving Fiji again for reason of her outstanding debt. No documentary evidence has been provided to show she still has a debt. When asked why she didn’t have this evidence she said she had been emailing the government to request this information, but they had not responded. She said she’s not sure if she still owes any more money. I asked her why she described it as a scholarship scam, and she said scam was not the word she intended to use, but she thinks it’s unfair she has this outstanding debt and that she had to pay an amount to leave the country.

17. I note from information on the Fiji Revenue and Customs Service website[1] that Fijians under the Tertiary Education and Loans Scheme are required to apply for a travel release before departing the country. It is plausible, if she still had an outstanding debt, either in terms of money or of work service expected, that she was asked to pay an amount before leaving. She says she did so in 2018 and 2019 to allow her to travel to Australia. She has not provided evidence or country information to indicate she would be banned from leaving Fiji in future for having an outstanding student loan, if she still has one. I do not accept having an outstanding student loan or being required to pay an amount to obtain a travel release amounts to serious harm of the type contemplated in s.5J(5). I find she does not have a well-founded fear of persecution for reason of having an outstanding education loan, even if in future she has to apply for a travel release and pay an amount back before departing the country.

    [1] Tax-Talk-TELS-Repayments-edited.pdf (frcs.org.fj)

18. The applicant claims she is supporting her parents and her children, and that if she returns to Fiji she and her family will struggle financially. The applicant had two brothers who also supported her parents, including one in Australia. The brother in Fiji died in 2022.[2]  Her  other brother, who is now an Australian citizen, gave evidence at the hearing about the financial support they both provide to the parents back in Fiji. He said they are both sending around AUD 700 a month to support their parents, plus extra money when needed. I invited the applicant to provide evidence of money transfers and following the hearing she provided receipts from September to December 2023 showing she had sent the following to her mother:  AUD 100 in September[3]; AUD 305 in October; AUD 320 in November; and AUD 80 in December. I accept the applicant, along with her brother in Australia, has been sending financial support to her parents, who are caring for her oldest son, now [Age].

    [2] In her pre-hearing written statement she stated he passed away before she left Fiji, but clarified at the hearing he in fact died in 2022.

    [3] I note she only provided one receipt for September, and acknowledge it is possible she sent more that month.

19. The applicant provided evidence of her employment in Australia, and also provided work and character references. She says she’s a valued and reliable employee and is working in [Town 3] in two sectors that are experiencing nation-wide employment shortages. She is currently employed by [Employer 1] but her main employment is at [Employer 2] as [an Occupation 2].  She previously worked there as [an Occupation 3]. A senior manager of [Employer 2], [Ms B], provided a reference stating how valued the applicant was, particularly with her skillset and cultural awareness. [Ms B] says that with staff and skills shortages the applicant would be difficult to replace, and that if her visa is cancelled it would be ideal if an alternative visa could be offered. Her brother told the Tribunal the applicant had worked and studied hard, and has progressed in her field in Australia, and may not get the same opportunities in Fiji. The applicant said she’s worried about finding secure employment again in Fiji.

20. I accept the applicant prefers to work in Australia and is concerned about job opportunities and her ability to continue to support her parents and sons to the extent she currently does. However I do not accept she would be denied the capacity to earn a livelihood or suffer significant economic hardship for any of the reasons mentioned in s.5J(1)(a). I find her fears about finding work and supporting her family do not amount to a well-founded fear of persecution.

21. Prior to the hearing the applicant provided a written statement raising new claims that she left Fiji because of family violence and coercive control by her husband. She claims she has to support her husband’s household, paying for food, bills, school fees, clothing, and rent. When she left Fiji her husband refused to care for her older son, who is not his biological child, so her parents took him in. She fears returning to Fiji because she would not be safe from her husband.

22. At the hearing the applicant said she was with her husband since 2013 and they had a child together in [Year]. They married in 2019, just before she came to Australia.  When asked why she married then she said she was concerned her husband would be unfaithful and wanted to secure the relationship before she left Fiji for the sake of her youngest son. However he was unfaithful after she left and he now lives with another woman. She considers him her ex-husband, and he too considers the marriage is over. She has been trying over the last few years to arrange a divorce but it is difficult to do the paperwork from Australia. Her ex-husband and the child they had together, who is now [Age], live with the ex-husband’s parents and his new partner. The applicant always lived on the island of Viti Levu, in [Towns 1 and 2], but her ex-husband now lives with his parents on the other main island in Fiji called Vanua Levu.  Although she had said in her written statement that she is paying for her ex-husband’s food, bills and rent she is actually only sending money to cover her son’s costs such as school fees, clothing, and the cost of transporting him to school by taxi. She couldn’t explain why she’d written that she pays their rent, as they are not renting. She confirmed she is not supporting her ex-husband and his family, she is only supporting her son. Evidence of money transfers provided to the Tribunal post-hearing show she has sent around AUD 1,500 in the last three months. She said she no longer speaks to her ex-husband, but they sometimes send text messages. She has a good relationship with her mother-in-law and calls her once a week to get updates on her son and talk to her about what he needs.

23. The applicant said her ex-husband was married before he had a relationship with her, and has children with his previous wife. During their relationship he never worked and she always supported him financially. The violence started about 3 years into the relationship. When he came home drunk he would throw things around. On two occasions he beat her, causing her to have a swollen eye. She didn’t go to the police. She lived in fear and kept the issue to herself. Her mother worked as [an Occupation 4], and the applicant had done this work as well before going into [Work sector]. She didn’t want her mother and people she knew to know her personal business. She has told her parents about it since she came to Australia. Her father also saw her husband get abusive once. When their son was about 1 she was visiting her parents. Her ex-husband turned up drunk. Her father confronted him and her ex-husband punched her father. Her ex-husband hasn’t returned to her parents’ home since. I asked her about her claim she suffered coercive control and she said when she can’t get her mother-in-law on the phone she might call him, but he won’t speak to her or he’ll just say abusive rude words to her. He made some threats when she came to Australia, saying he’ll get the authorities to send her back to Fiji, but she stopped responding to his messages. They have little communication now.

24. I asked the applicant if she fears harm from her ex-husband, given the relationship is over and they live on separate islands.  She said she does worry that if she returns to Fiji he’ll come to [Town 1] to bother her because he’ll want her to support him again, and use their son as pressure. She’s not sure if his current partner works or not. But she also said now her family know the situation, she would be comfortable in going to the police or other authorities for help, including seeking a restraining order if necessary. She is also interested in seeking custody of her youngest son.

25. The applicant’s brother said he couldn’t speak about any fears the applicant had in returning to Fiji. He had not lived there since 2007. He doesn’t ask her about personal issues and she hasn’t told him.

26. [Ms B] said she had personal experience and knowledge of domestic violence. She also said she had seen the applicant distressed after telephone calls with her ex-husband, and even overheard him abusing the applicant over the phone. However she hasn’t worked directly with the applicant for over a year. 

27. DFAT reports the Fiji Women’s Crisis Centre found around 64% of women in Fiji who had been in a relationship had experienced domestic violence. In 2020 the Minister for Women said Fiji’s rate of violence against women and girls is among the highest in the world. Police protection is available, but not consistently. Magistrates can issue restraining orders, which are enforced by police and provide some protection.[4]

    [4] DFAT, Country Information Report Fiji, 20 May 2022. 

28. I accept the applicant’s claim that she experienced domestic violence in her relationship with her ex-husband. However they are no longer in a relationship. The applicant said if she returned to Fiji she would return to [Town 1], where she grew up and where her parents live. Her ex-husband lives on a different island with his parents and his new partner. In the unlikely event he comes to [Town 1] to confront her, I consider the applicant  could seek protection from the police. There is nothing to suggest the police would withhold protection for any of the reasons mentioned in s.5J(1)(a). Having regard to the history of the domestic violence and the fact they are now separated and living in different households, I find the chance she would face harm from her ex-husband in the reasonably foreseeable future is too remote to amount to a real chance. In any event, the significant and essential reason for the harm would not be for any of the reasons mentioned in s.5J(1)(a).

1. For these reasons I find the applicant does not have a well-founded fear of persecution if she returns to Fiji now or in the reasonably foreseeable future, and therefore find she does not meet the definition of refugee in s.5H(1).

2. Having found the applicant does not meet the refugee criterion, I have considered whether there are substantial grounds for believing there is a real risk she will suffer significant harm if removed to Fiji. Significant harm is exhaustively defined in the Act to include being arbitrarily deprived of life, the death penalty being carried out on the person, being subjected to torture, subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment. I do not accept having an outstanding education loan or needing to apply for a travel release amount to significant harm as defined in the Act. I do not accept losing her job in Fiji in the circumstances she described amounted to significant harm, nor do I accept there is a real risk she will suffer significant harm in the future for this reason, even if her previous employer discloses the disciplinary notice or contract termination to prospective employers. I do not accept any drop in salary from what she earnt in Australia to what she may earn in Fiji or inability to continue to contribute as much money as she has to her parents or sons amount to significant harm.

3. The applicant claims she will not be safe from her ex-husband if she is returned to Fiji.. She and her ex-husband have separated and he is living with a new partner. The applicant no longer speaks directly to her ex-husband, and speaks only with his mother to discuss matters pertaining to their son. The occasions in the past where he was violent towards her, when he came home drunk, will not arise as they no longer share a household and would be living on different islands. The applicant did not herself raise any claims that she fears her ex-husband will harm her if she tries to get custody of their son, however, I consider that in the event he does threaten her for this reason it would be reasonable to obtain a restraining order such that there would not be a real risk of significant harm. The applicant said at the hearing that she is aware of restraining orders and that she would seek such help in future. I acknowledge the applicant has said her ex-husband has been rude and sworn at her on the phone since they’ve separated and made empty threats about getting the authorities to return her to Fiji. I am not satisfied any similar future verbal abuse would amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment, as defined in the Act. I am not satisfied on the evidence provided, in particular having regard to the fact they are separated and would be living far apart, that there is a real risk she will suffer significant harm from her ex-husband if she returns to Fiji.

4. I find there are not I find there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk she will suffer significant harm.

   CONCLUSION

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.

   Carolyn Wilson
   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.

   …