2017816 (Refugee)

[2022] AATA 1445

2017816 (Refugee) [2022] AATA 1445 (1 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2017816

COUNTRY OF REFERENCE:                   Chile

MEMBER:Michael Hawkins AM

DATE:1 April 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 01 April 2022 at 2:09pm

CATCHWORDS

REFUGEE – protection Visa – Chile – complementary protection – medical condition – Autism Spectrum Disorder (Asperger’s Syndrome) – discrimination, harm and bullying at school – victim of torture as defined in the Convention – legal protection for persons with disabilities – access to mental health services – Chilean school system – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65

Migration Regulations 1994, r 1.12; Schedule 2, cl 866.211

CASES

Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423

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 11 December 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Chile, applied for the visas on 26 September 2019. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations under s.36 of he Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

3. The applicant’s parents (the second and third-named applicants) appeared before the Tribunal on 30 March 2022 to give evidence and present arguments. The Tribunal received oral evidence from both of them. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (European) and English languages.

4. The applicants were represented in relation to the review, though the representative did not attend the hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    Member of the same family unit

11. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the parents and sibling.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicants meet the refugee criterion and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background:

13. The first named applicant (“[Mr A]”) is a [age]-year-old national of Chile. The second named applicant (“[Ms B]”) is a [age]-year-old national of Chile and [Mr A]’s mother. The third named applicant (“[Mr C]”) is a [age]-year-old national of Chile and [Mr A]’s father. The fourth named applicant (“[Mr D]”) is a [age]-year-old national of Chile and [Mr A]’s older brother.

14. [Mr A] first arrived in Australia on [date] August 2017 as a dependent applicant pursuant to a student visa. He has remained onshore since.

15. [Ms B] and [Mr D] first arrived in Australia on[date] August 2017 pursuant to a student visa where [Ms B] was the main applicant, and [Mr D] a dependent applicant. They have remained onshore since.

16. [Mr C] first arrived in Australia on [date] August 2017 as a dependent applicant pursuant to a student visa. He departed Australia on [date] October 2017 and arrived onshore on [date] December 2017. [Mr C] subsequently departed Australia again on [date] June 2018 and arrived onshore on [date] September 2018. He has remained onshore since.

17. On 26 September 2019, [Mr A] applied for a protection visa and included [Ms B], [Mr C] and [Mr D] as members of his family unit.

18. The applicants’ protection visa application was refused by a delegate of the Minister for Home Affairs in a decision made on 11 December 2020.

19. On 12 December 2020, the applicants applied for merits review of the delegate’s decision to refuse their applications for a protection visa.

    Claims:

20. The applicants’ claims are summarised in their protection visa application, written claims, and the delegate’s decision.

21. [Mr A] claims he has been diagnosed with Autism Spectrum Disorder (Asperger’s Syndrome) (“ASD”).

22. [Mr A] claims has experienced discrimination, harm and bullying at school from other students and teachers.

23. [Mr A] claims that the Chilean schooling system and teachers remain ignorant to the needs of students with ASD. He claims that he suffers anxiety, stress and suicidal ideation as a result.

24. [Mr A] claims he is unable to receive adequate support in Chile, particularly within the school system.

25. [Mr A] claims there is inadequate legal protection against discrimination and bullying for people with disabilities.

26. The second, third and fourth-named applicants made no claims of their own.

    Applicant submissions received 21 September 2021

27. [Mr A] claims he will not be able to study or pursue his aspiration of becoming a [Occupation 1] and will be isolated from society in Chile.

28. [Mr A] claims that the only option available to him is home-schooling if he returns to Chile, which is a denial of his right to education as the exclusion is beyond his control.

29. [Mr A] claims the Chilean public health system does not have adequate treatment or state-funded therapies for people with ASD.

30. [Mr A] claims he was threatened with death and tortured in the Chilean school system.

    Evidence:

31. The Tribunal has before it a range of material, including, relevantly:

    (a)  the applicants’ protection visa application form, which was lodged on 26 September 2019;

    (b)  the applicants’ identity documents provided to the Department, including Chilean passports, Chilean birth certificates, Chilean national identity cards, Chilean drivers licence and an Australian marriage certificate of [Ms B] and [Mr C];

    (c)   the protection visa decision record dated 11 December 2020 (delegate’s decision), a copy of which has been provided to the Tribunal by the applicants;

    (d)  the application for review form dated 12 December 2020;

    (e)  Department file [number] concerning the applicants’ protection visa application, which contains all documents submitted by the applicants in support of their protection visa application, including:

    ·     letters from [the] treating psychologist of [Mr A], dated 2 May 2019, 22 March 2019, 17 October 2019 and 10 March 2020.

    ·     statutory declarations of [Mr D], [Mr C] and [Ms B] sworn 19 September 2019;

    ·     various statutory declarations from friends of the applicants;

    ·     a Chilean school enrolment transfer confirmation certificate of [Mr A] dated 18 April 2016;

    ·     school reports of [Mr A] for Semester 2 2017 and Semester 2 2018;

    ·     various medical reports and medical certificates of [Mr A], dated 31 May 2013, 13 September 2019, 2 October 2019 and 25 February 2019;

    ·     photos of injuries inflicted on [Mr A];

    ·     reports and country information on Chile.

    (f)    all documents submitted to the Tribunal in support of the applicants’ review application, including:

    ·     further copies of the statutory declarations, country information and reports, enrolment transfer confirmation, medical documents and psychologist letters referred to above;

    ·     undated written submissions of the applicants completed by [Mr C] and [Ms B] on behalf of [Mr A] received by the Tribunal 12 December 2020, 21 September 2021, 19 February 2022, 22 March 2022 and 24 March 2022;

    ·     undated written submissions of the representative received by the Tribunal 12 December 2020;

    ·     a written statement of [a] friend of the applicants, dated 31 October 2019;

    ·     updated letters from [Mr A]’s treating [psychologist] dated 4 February 2021 and 17 December 2021;

    (g)  country information on Chile, as set out below.

    Country of reference:

32. The applicants claim to be citizens of Chile. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Chile is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

33. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that Chile is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

    Hearing:

34. [Mr C] and [Ms B] appeared before the Tribunal on 30 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from both of them. The Tribunal hearing was conducted with the assistance of a interpreter in the Spanish (European) and English languages.

35. The applicants were represented in relation to the review, though the representative did not attend the hearing.

36. The second and third-named applicants requested that [Mr A] be excused from providing evidence and arguments at the hearing. The representative outlined in the ‘Response to Hearing Invitation Form’ that the second and third-named applicants made the application on his behalf and were able to answer questions put by the Member as [Mr A] is currently experiencing stress and depression. The Tribunal granted this request.

37. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicants that to be granted a protection visa they must either be recognised as refugees or be persons entitled to Complementary Protection.

38. The Tribunal explained that under Australian law, to be a refugee the applicant must have a well-founded fear of persecution in Chile. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Chile. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

39. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk the applicant will suffer significant harm if removed from Australia to Chile.

40. The Tribunal discussed the applicant’s claims as summarised in the applicants’ protection via application, written claims, delegate’s decision and representative’s pre-hearing submissions. They were asked to confirm that the claims so summarised were not in dispute. The Tribunal asked the applicants whether those claims were accurate and complete.

41. [Mr C] emphasized the nature of the applicant’s claim as to having been tortured whilst in Chile. He spoke of the injuries inflicted upon him whilst at school and in the care of teachers. He spoke of an incident involving a pair of scissors that were used to cut a deep cross into the applicant’s arm and how those scissors were then held against his throat whilst menacing death threats were made to him. [Mr C] performed how the threat and scissors were used to emphasise the intimidation suffered. [Mr C] handed up photos of the injuries sustained by the applicant.

42. [Mr C] spoke of the grief endured by the applicant since he was six years old. The incident involving the scissors happened when the applicant was eleven years of age.

43. The Tribunal explained that it understood the evidence that would be presented, having listened to the tape of the interview with the delegate. It asked again whether the claims as read out by the Tribunal were accurate and complete.

44. They stated they were and that they did not need to change them.

45. The Tribunal discussed some background of the family with the applicants.

46. It asked why the family had come to Australia. [Mr C] stated that after they had received medical advice about the applicant’s medical conditions which explained the behaviours he was enduring at school, he made moves to leave Chile.

47. [Mr C] explained that the family had already relocated to three different cities in Chile, each time moving to schools that purportedly understood the conditions that the applicant had.

48. Asked why they moved to Australia, [Mr C] sated that they formed the view that they had to leave Chile for the good of the applicant, and in order to save his life. Australia was the first country to accept their visa application. [Mr C] had applied for a student visa and all of the family were dependants upon that visa.

49. [Mr C] stated that he had also considered moving to Canada, Germany and New Zealand, but Australia responded first and they were desperate to leave.

50. Asked what the parents did in Chile, [Mr C] replied that they were both [Occupation 2]. [Ms B] was an [Occupation 2] and [Mr C] ran an [Occupation 2] practice. They stated they were both successful in Chile.

51. Asked what they had been doing in Australia, [Mr C] replied that he had been working as [occupation] to make ends meet. He became quite animated and excited when he told the Tribunal about his new business venture, as an [Occupation 2 consultant]. [Ms B] assisted with this new business. She also helped others in [doing other jobs].

52. [Mr C] stated that they no longer had any business interests in Chile.

53. [Mr C] advised that [Mr D] had completed [qualification]. He spoke perfect English and Spanish.

54. The Tribunal asked about the applicant.

55. [Ms B] explained that after learning of the rejection of the visa application, the applicant went into a very dark place. She explained that it was now like having a two year old child. When once he was becoming adaptive and responsive, he now no longer wanted to go anywhere.

56. [Ms B] tendered reports from the applicant’s first school at [a named] High School. The report stated that the applicant was improving but was very dependent upon his brother and spent all of his non-contact hours with his brother. He has commenced school in Australia in 2017 in Year 7. He finished at [this school] at the end of Year 8 when the family relocated [to] Brisbane. They were unable to get him engaged with another school. He refused to attend another school. [Mr D] had also now left school and so there was no sibling support for him.

57. [Mr C] explained that he could no longer afford to send the applicant to a special school for children with his condition.

58. Instead, [Mr C] enrolled the applicant as a Chilean International Student, a form of distance learning. He explained at some length the differences between the Australian and Chilean style of education. In summary, they believed the Australian style was more visual whereas Chilean was more textbook and memory oriented.

59. The applicant has a phobia about attending school and avoids leaving the house.

60. The Tribunal considered the medical certificates tendered. It noted that the treating psychologist has considerably downgraded the applicant’s medical condition from simply ASD to the addition of severe anxiety which has exacerbated since December 2020. He is presenting with insomnia, severe anxiety feelings and unhelpful thinking on a daily basis. The psychologist has opined that his current condition is related to trauma from bullying experienced in Chile. She states that his current anxiety is impacting his coping skills and general well-being. She also notes continued suicidal ideations. The psychologist does not recommend further changes in his life. She concludes by stating that his condition continues to deteriorate.

61. The Tribunal asked the applicants where the applicant would be in the Chilean education system if he returned to Chile. They replied his Australian education (Years 7 and 8) would not be counted. He would still have 8 years of schooling ahead of him. There are no options for remote learning in Chile. It would be compulsory for him to physically attend school.

1. The Tribunal discussed the findings of the delegate with the applicants. Those findings included:

   ·The applicant is a [age] year (almost [age]) old minor child;

   ·The applicant has loving and supportive parents and brother;

   ·The applicant’s parents are highly educated as [Occupation 2] and whilst in Chile, had successful careers as business owners;

   ·The applicant’s family had the financial means to relocate within Chile;

   ·The applicant received a diagnosis and treatment from specialist medical doctors and psychiatrists whilst in Chile;

   ·The applicant was accepted into at least different three schools which recognised his diagnosis;

   ·The applicant’s condition is on the lower end of the Autism spectrum and he has progressed emotionally, mentally, socially and academically in the Australian school system;

   ·The applicant continues to suffer anxiety and distress in relation to previous experiences in Chile as well as the prospect of returning to Chile;

   ·The applicant has received psychological therapy whilst in Australia which includes additional coping strategies;

   ·The applicant is able to participate in therapy and can express his thoughts and feelings;

   ·The applicant will require ongoing psychological therapy to assist him with coping with his anxiety, as well as specialist support to assist with his specific needs related to his disorder;

   ·The applicant fears returning to Chile on account of the previous discrimination and bullying he experienced whilst attending school as well as a lack of adequate support in the Chilean school system.

2. The Tribunal has read the contents of all files in relation to this matter, together with the 300 or so page submission handed up at the hearing. That submission includes numerous examples of the incidences of bullying, intimidation, humiliation, beatings, mistreatment, insults, rejections and aggressions meted out upon the applicant whilst at schools in Chile. It also spoke of those schools’ failure to attempt to integrate the applicant into the schools, refusal to allow him to attend examinations (as they said his low intelligence would hurt the school and thereby the funding it receives).

3. In the best interests of [Mr C] and [Ms B], the Tribunal elected to take no more than 30 minutes of evidence of such incidences from them, as it was clearly distressing. Suffices it to say that the evidence they provided was largely consistent with the evidence provided to the delegate and in many cases were restatements of the detailed incidents contained in their submission.

4. The Tribunal advised the applicants that it accepted the findings made by the delegate in their entirety, qualified only by the new evidence of the deterioration in the applicant’s condition, particularly as referenced by the treating psychologist. The Tribunal accepted the statements of the psychologist in their entirety (except to the extent the psychologist attempted to define the term “torture” as used in the Convention. The Tribunal noted that part of her report with interest.)

   Assessment of claims and evidence, and findings:

5. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

6. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

7. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

8. The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.

9. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

   [1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

10. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

    [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

11. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

    “The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

12. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

13. The Tribunal noted that the applicant arrived in Australia on [date] August 2017.

14. The Tribunal noted that the applicant applied for a protection visa on 26 September 2019.

15. Like the delegate before it, the Tribunal understood that the applicants pursued their residency options pursuant to other visa options. It noted that at all times the applicants (father and mother) have couched their applications and submissions to the department in terms of their need to keep their son in Australia.

16. Accordingly, the Tribunal accepts as reasonable the reasons for the delay in making an application for protection. Ordinarily, a delay in making the application might cause a decision maker to have concerns about the genuineness of the protection claims, but the Tribunal, in this instance, can see that the claims have been made from the outset, just cloaked in other visa applications.

17. As determined above, the Tribunal found the evidence of the parents to be most compelling. The evidence was delivered with rare passion and emotion. The Tribunal was satisfied that there was no embellishment of the incidents referenced. The photographic evidence was disturbing. The Tribunal had great empathy for the parents.

18. The core of the applicant’s claims is his medical condition, being ASD and more recently, severe anxiety.

19. His fears of serious harm are based on his medical condition, being ASD. No evidence has been adduced that all people with ASD do, or will, suffer from serious harm.

20. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, whilst the Tribunal considers that there may be a real chance that the applicant will suffer serious harm in the school environment if he returns to Chile based on his medical condition and his previous experiences of harm, the Tribunal is not able to find that it is for a Convention reason (including race, religion, nationality, political opinion or membership of a particular social group).

21. 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).

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that they will suffer significant harm?

22. The Tribunal has considered the applicant’s claims under complementary protection.

23. 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). In so doing the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Chile, there is a real risk that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).

24. In MIAC v SZQRB [2013] FCACA 33, the Full Federal Court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition.

25. The Tribunal has had regard to the following country information on Chile relevant to the applicants’ claims.

    Autism Spectrum Disorder and Disability

26. The Tribunal also noted country information relied upon by the delegate.

27. The delegate noted there are specific support services for children with ASD and their families. These include Chilean Association of Parents and Friends of Autistics (ASPAUT) which is a non-profit organisation. According to their website, they have branches in five regions of Chile which includes four schools, five family support groups and a vocational training centre. The aim of the organisation is to improve the quality of life for people with autism in areas of life such as health, education, well-being, recreation and work that favours inclusion in society. Their mission is to improve the research and evaluation of ASD as well as provide experimentation centres, training and work development centres and residencies that address the specific needs of those with ASD. They provide services such as psychology, speech and auditory therapy, physical education and technical therapeutic care to assist with learning in the classroom.20 In addition to ASPAUT, according to the Autism Speaks websites, there are an additional six specialist support services located in Santiago or Quillota.[3]

    [3] >

    The delegate also noted that the available country information refers to inadequacies such as issues with support service delivery and inclusion. Nevertheless, the delegate was satisfied that a range of support services are available in Chile specific for the applicant’s needs and that the Government has implemented strategies and policies to improve the well-being of its citizens with disabilities.

28. Country information indicates Chile has a well-functioning, well-organised and effectively governed health system and public health architecture. According to the OECD, leadership from different levels of government, and in particular central government, is ambitious and that leadership and accountability at the central and regional levels are clearly defined. The organisation of the Ministry of Health into two sub-secretariats, one for Health Networks and the other for Public Health, elevates the importance of public health issues for the government.[4]

    [4] OECD Reviews of Public Health: Chile. A Healthier Tomorrow. Assessment and Recommendations', Organisation for Economic Co-operation and Development (OECD), 09 January 2019, 20201210114149.

29. According to the OECD, the Chilean Government has introduced a comprehensive package of policies designed to improve the health of Chileans. The OECD noted that key areas for improvement would entail attention to the implementation of public health policy through epidemiological surveillance, a rigorous evaluation and costing strategy, stronger data governance, and alignment of incentives for all stakeholders.[5]

    [5] OECD Reviews of Public Health: Chile. A Healthier Tomorrow. Assessment and Recommendations', Organisation for Economic Co-operation and Development (OECD), 09 January 2019, 20201210114149

30. Health care coverage in Chile is provided primarily either by the state-funded National Health Fund - Fondo Nacional de Salud , most commonly known as FONASA, or by the private coverage schemes, Las Instituciones de Salud Previsional (ISAPRE). FONASA covers around 78% of the population, ISAPRES cover around 17-18% of the population, while a further 3-4% are covered under an Armed Forces insurance scheme. Since 2005 the benefit basket under the public health system in Chile has been set under a system of enforceable guarantees. Citizens are guaranteed access to those treatments defined under the ‘Acceso Universal con Garantías Explícitas’, or AUGE, which is also known synonymously as GES (Garantías Explícitas en Salud). Applicable to all Chileans, whether covered by FONASA or ISAPREs, the guarantees cover provisions around access, quality, timeliness and financial protection.[6]

    [6] OECD Reviews of Public Health: Chile. A Healthier Tomorrow. Assessment and Recommendations', Organisation for Economic Co-operation and Development (OECD), 09 January 2019, 20201210114149

31. The US Department of State Human Rights Report on Chile for 2020[7] provides the following regarding treatment of persons with disabilities:

    [7] United States Department of State, Bureau of Democracy, Human Rights, and Labour, ‘Country Reports on Human Rights Practices for 2020: Chile’ Human Rights Report’ (30 March 2021) p.16.

    Persons with Disabilities

    The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities, and the government generally enforced these provisions. Persons with disabilities suffered forms of de facto discrimination. The law provides for universal and equal access to buildings, information, and communications. Most public buildings did not comply with legal accessibility mandates. The public transportation system, particularly outside Santiago, did not adequately provide accessibility for persons with disabilities. In recent years, however, the Metropolitan Mobility Network, the main system of public transportation within Santiago, instituted changes to improve compliance with the law, including new ramp systems and elevators at certain metro stations, as well as improved access to some buses. Nevertheless, many metro stations and most buses remained inaccessible to persons with physical disabilities.

    In September Marcelo Delgado, a computer technician with disabilities, filed a complaint alleging discrimination and aggression at his former place of employment. According to Delgado, he was attacked and bullied by coworkers and faced discriminatory repercussions from the company’s human resources department after reporting the incident, leading to his firing. As of October the Labor Directorate continued to investigate the complaint.

    In April a public hospital in the Puente Alto municipality of Santiago refused to release a baby to its biological father due to the father’s disability. Despite the fact the father worked and lived independently, the hospital claimed he was incapable of caring for the child and petitioned a family court to send the child to foster care. The father sued, with support of a disability rights NGO, and in November obtained custody of his child.

32. The United Nations General Assembly Compilation on Chile: Report of the Office of the United Nations High Commissioner for Human rights,[8] noted the following about persons with disabilities:

    82. In 2016, the Committee on the Rights of Persons with Disabilities recommended that Chile adopt a plan to fully harmonize laws and policies, with a view to bringing them into line with the Convention on the Rights of Persons with Disabilities.

    83. The Committee also requested Chile to establish an independent mechanism to monitor the implementation of the Convention that satisfied the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles). It recommended involving organizations of persons with disabilities in both implementing and monitoring compliance with the Convention.

    84. The Committee recommended that Chile adopt a general accessibility plan covering transportation, public buildings and facilities, information and communication, in both urban and rural areas.

    85. The Committee requested Chile to repeal all legal provisions that limited the legal capacity of adults with disabilities and to establish a supported decision-making model that respected the autonomy, will and preferences of persons with disabilities.

    86. The Committee urged Chile to combat stereotypes and discrimination in the media and launch public awareness campaigns to promote persons with disabilities as rights holders rather than objects of charity.

    Legal protection

    [8] United Nations General Assembly Human Rights Council, ‘Compilation on Chile: Report of the Office of the United Nations High Commissioner for Human Rights’ (16 November 2018) p.9.

33. The 2022 Human Rights Watch Report on Chile[9] notes the following regarding legal protection for persons with disabilities:  

    Chile’s civil code uses derogatory language about people with disabilities and in many cases strips them of their legal capacity, including by providing for full guardianship of them. The government has not updated data about the number of people with disabilities since 2015.

    [9] Human Rights Watch, ‘World Report 2022 – Chile’ (13 January 2022) available at >

    The Department of State Human Rights Report on Chile[10] reports the below regarding civil protections:

    In civil matters there is an independent and impartial judiciary, which permits individuals to seek civil remedies for human rights violations; however, the civil justice system retained antiquated and inefficient procedures, which resulted in civil trials lasting years, if not decades. Administrative and judicial remedies are available for alleged wrongs. Individuals and organizations may appeal adverse domestic decisions domestically or to regional human rights bodies. Cases involving violations of an individual’s human rights may be submitted through petitions by individuals or organizations to the Inter-American Commission on Human Rights, which in turn may submit the case to the Inter-American Court of Human Rights. The court may order civil remedies, including fair compensation to the individual injured.

    [10] United States Department of State, Bureau of Democracy, Human Rights, and Labour, ‘Country Reports on Human Rights Practices for 2020: Chile’ Human Rights Report’ (30 March 2021) p.7.

1. The United Nations General Assembly national report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21[11] reported the following about access to justice for persons with disabilities:

   [11] United Nations General Assembly Human Rights Council, ‘National report submitted n accordance with paragraph 5 of the annex to Human Rights Council resolution 16/12: Chile’ (7 November 2018) p.14.

   Access to justice (157, 158, 159)

   107. The judicial branch has taken measures to ensure access to justice. An online translation service for deaf persons is being piloted nationwide. It enables the user to contact a sign language interpreter through a monitor in real time. With regard to blind persons, the judicial branch has licences for the Non-Visual Desktop Access (NVDA) digital tools and the “Jaws” software.

   108. In the same vein, initiatives to train staff and raise their awareness have been implemented. The Infrastructure and Maintenance Department of the Administrative Office of the Courts has implemented a policy under which the design specifications of justice facilities must meet the three criteria of transparency, information and accessibility.

   109. The Legal Assistance Agency has an “Access to Justice” programme for persons with disabilities, which provides free assistance in all regions of the country.

   Public health system

2. Regarding access to mental health services in the Chilean public health system, the following was reported by the Country of Origin Information Section (COIS) of the Department:[12]

   [12] Department of Home Affairs, Country of Origin information Section (COIS), ‘Health and Education: Chile’ (28 October 2011) p.9.

   Mental health care

   According to a 2007 report from the PAHO, mental health is:

   the area with the greatest mismatch between supply and demand in both the public and private sectors. In the public sector, long-term specialized hospital care is only provided in three establishments. Acute care is provided in those same establishments, as well as by psychiatric services in some general hospitals. In recent years, under the national plan for psychiatric care and mental health, the establishment of shelters to deinstitutionalize some patients and encourage their reentry into society has been promoted. The public system also provides outpatient care at community mental health centers in some urban “communes,” which are administered by the respective municipalities and include 40 establishments nationwide. The ISAPREs offer only minimal coverage for psychiatric care in their health plans. The conditions covered under the AUGE Plan include depression, alcohol and chemical dependency, and psychoses, which are expected to improve the supply of mental health services and reduce disparities in access among different groups of the population.

   Chilean school system

3. The COIS report on Health and Education in Chile also reported that:

   According to ECLAC, in 2008, there was an average of 23 pupils per teacher in the secondary education system. 

   According to a UNESCO report published in 2008, since 1990:

   Outcomes for learning achievement and equity have been far from impressive [in Chilean schools]. Private schools with public subsidies do register an advantage over municipal schools on the yardstick provided by fourth-grade standardized tests. However, the findings are reversed when the socio-economic characteristics of schools are taken into account. In other words, there is no equalizing effect. Municipal schools do a better job than private schools of lifting the achievement of students in the lowest group. Only among students in the middle socioeconomic group do private subsidized schools have higher associated test scores.

   Of the Latin American countries that took part in the 2009 Programme for International Student Assessment (PISA) study, which assessed the skills of 15 year olds in reading, mathematics and science, Chile was the best performing even though it fell below the OECD average in the three areas tested.  The same report stated that ‘there is still much work to be done to improve the quality of education’ in Latin America and the Caribbean.  Details of Chile’s performance in the 2009 PISA study can be found in a 2011 report by the Partnership for Educational Revitalization in the Americas.

100.   The UN GA national report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21[13] reported the following regarding education in Chile:

[13] Department of Home Affairs, Country of Origin information Section (COIS), ‘Health and Education: Chile’ (28 October 2011) p.14.

Education and health (145)

110. In terms of education, Act No. 20.845 (2015) guarantees free primary and secondary education and ensures equitable access to education, including by ensuring that all regular educational institutions are accessible to students with disabilities. Act No. 21.091 (2018), the Higher Education Act, reflects the principles set out in the Convention on the Rights of Persons with Disabilities and requires universities to ensure that they are accessible to persons with disabilities. Decree No. 83/2015 requires the gradual incorporation of regular education in special schools, together with the use of universal design and curricular adjustments.

111. The programme of additional support to educational institutions for the inclusion of students with disabilities is intended to enable such students to participate in their teaching and learning process, thereby enhancing educational inclusiveness in schools that have implemented projects with the National Service for Persons with Disabilities. For 2018, the amounts awarded represent a total investment of US$ 560,394, benefiting 64 initiatives financed at the national level.

112. The support programme for students with disabilities in institutions of higher education, introduced in 2017, provides technical aids and support services to empower students with disabilities and enhance their independence.

101.   The representative also submitted two pre-hearing advices. Each dealt with the numerous public media reports of bullying and physical assaults within the Chilean school system. The more recent submission dealt with reports of assaults in just this calendar year. The submission included links to videos of the assaults uplifted to social media.

102.   The submission included a reference to an article in the Conception Daily which reported upon an annual study by the International NGO Bullying Without Borders which found there had been a 40% increase in complaints of serious physical and psychological abuse in public and private schools in Chile in 2021.In 2019, pre-pandemic, the Education Quality Agency reported that 4 out of 10 school children are discriminated against at school, due to their physical characteristics, personality or rate of learning.

103.   The same report evidences that the increase in complaints of serious physical and psychological abuse in public and private schools in Chile from 2017 to 2021 is 348%. It also reported that 90% of cases are not reported.

104.   Having analysed the wealth of information at the Tribunal’s disposal, given the enormity of the applicants’ and representative’s submissions, the Tribunal is satisfied as to the following:

·There are adequate health services within Chile available to the applicant for treatment, and the fact that the applicant’s parents have had him diagnosed and treated in Chile prior to their departure evidences that;

·As a Chilean citizen, the applicant would be entitled to access that level of support services available to other Chilean citizens – the fact that the quality of those services may differ as between Australia and Chile is irrelevant;

·The applicant engages with his psychologist readily in Australia by meeting and telephone, and the Tribunal would be confident of the applicant doing that with a psychologist in Chile; 

·If the applicant returns to Chile, there is no doubt he would receive the support of his parents, but noting the distress of his parents during the hearing, that support may give rise to health issues for his parents;

·According to his current psychological reports, despite him maturing in age, he has actually become more acopic and withdrawn and more susceptible to suicidal ideation;

·The applicant has been the victim of bullying, intimidation, humiliation, beatings, mistreatment, insults, rejections and aggressions within the school environment in Chile;

·The applicant has been excluded by teachers from sitting examinations and participating in sporting events;

·The applicant has been failed to be included in all school activities by his teachers;

·The applicant has been the victim of torture as defined in the Convention, as he has been subjected to acts by which severe pain or suffering is intentionally inflicted on a person, whether physical or mental, in order to intimidate or coerce him or for any reason based on discrimination of any kind;

·If the applicant returns to Chile, he will be required to attend and complete a school-based education program;

·If the applicant returns to Chile, there is no doubt that he will again be bullied, intimidated, beaten, mistreated, insulted, rejected and be the victim of aggression from students and teachers;

·Evidence suggests that bullying and physical violence is rampant within the school system within Chile and it would appear that the government is powerless to control it;

·It would appear that teachers, at the school level, and in the applicant’s own experience, have done nothing to attempt to protect the applicant;

·In many instances, the teachers themselves have been party to the bullying and physical and psychological assaults by tormenting and insulting the applicant and by excluding him from activities because of his condition;

·Numerous complaints have been made by the applicant’s parents, they have moved him to other schools and other cities, but the outcomes have not changed;

·There is a program of additional support to educational institutions for the inclusion of students with disabilities which provides technical aids and support services to empower students with disabilities and enhance their independence. However, the issue confronting the applicant is that he is not being protected at school.

105.   It is apparent to the Tribunal that in the applicant’s case, the bullying, physical and psychological assaults upon him have been carried out both by teachers themselves or with the acquiescence of a teacher. Those teachers are officials of the education department, and represent the governing authority. They are so acting in an official capacity.

106.   The Tribunal is satisfied that the persecutor in this case, being the education department of the government of Chile, is both a party to the persecution and does not provide adequate protection to protect the applicant.

107.   The Tribunal is satisfied that the risk the applicant faces is specific to him and is not one that is faced by the population generally.

108.   The Tribunal is satisfied that the applicant cannot modify his behaviour to avoid the harm.

109.   The Tribunal is satisfied that the applicant has been relocated within Chile on three separate occasions to different cities but the conduct complained of has followed him on each occasion making future relocation futile.

110.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is satisfied that the applicant has been in the past subjected to cruel or inhuman treatment or punishment or subjected to degrading treatment or punishment.

111.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is satisfied that the applicant will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Chile now or in the reasonably foreseeable future. 

112. Accordingly, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Chile, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does satisfy the criterion in s.36(2)(aa) of the Act.

Conclusion: Refugee Criterion

113.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicants will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.

Conclusion: Complementary Protection

Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that she will suffer significant harm.

Overall Conclusion:

114. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).

115. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second and third-named applicants, as the mother and father of the first-named applicant and the fourth-named applicant as the brother of the first-named applicant are members of the same family unit as the first named applicant for the purposes of s 36(2)(c)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa are met.

DECISION

116.   The Tribunal remits the matter for reconsideration with the following directions:

(i) that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and

(ii) that the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Michael Hawkins AM
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.

…