2113274 (Refugee)

[2024] AATA 4399

2113274 (Refugee) [2024] AATA 4399 (20 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Bill Alexopoulos (MARN: 1569051)

CASE NUMBER:  2113274

COUNTRY OF REFERENCE:                   Russian Federation

MEMBER:Ben Lumsdaine

DATE:20 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 20 September 2024 at 3:03pm

CATCHWORDS

REFUGEE – Protection Visa – Russian Federation – religion – Jehovah’s Witnesses – effective state protection is not available – there is a real chance that the applicant will suffer serious harm – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

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 23 September 2021 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  the Russian Federation (Russia), applied for the visa on 14 December 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

3. The applicant sought review of this decision on 30 September 2021. The applicant appeared before the Tribunal on 13 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from a witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

4. The applicant is a [age]-year-old woman from Russia. According to the delegate’s decision record, the applicant was granted a Visitor (Subclass 600) visa on 9 November 2017.

   CLAIMS AND EVIDENCE

   Background

5. The applicant is a [age]-year-old woman from Russia. According to the delegate’s decision record, the applicant was granted a Visitor (Subclass 600) visa on 9 November 2017. The applicant arrived in Australia as the holder of this visa on [date] December 2017, travelling on a valid Russian passport issued [in] 2014. 

   Evidence before the Department of Home Affairs

6. The applicant applied for a protection visa on 14 December 2017. In her application for a protection visa, the applicant made the following claims:

   ·     She was subjected to humiliation, threats and violent attacks by locals, Cossacks and local police because of her religious beliefs.

   ·     Jehovah’s Witnesses had been banned in Russia in April 2017 and she would be prosecuted, humiliated and mistreated in Russia if she practised her faith there.

   ·     She had been harmed in Russia in March 2017 at the market, in June 2017 when her car was damaged and when she was attacked and detained by police in September 2017.

   ·     When she had sought help from police after being beaten by a Cossack, she was detained, her house ransacked and her dog killed.

   ·     She feared similar harm to that she experienced in Russia if she returned. She cannot relocate in Russia as Jehovah’s Witnesses was banned as an extremist organisation in April 2017. She believed the police would not protect her as they had persecuted her for her religion in the past.

7. Numerous newspaper articles regarding the situation of Jehovah’s Witnesses in Russa were provided with the application.

8. On 29 October 218, the applicant’s representative provided legal submissions and a statement from the applicant in Russian with an English translation. The contents of the statement can be summarised as follows:

   ·     She met Jehovah’s Witnesses in 2001 shortly after divorcing her husband in 2000 and the conversation she had with them had moved her.

   ·     She met other Jehovah’s Witnesses after moving to Norlisk in 2012 and was on one occasion invited to a meeting with other Jehovah’s Witnesses that was disrupted by thugs.

   ·     She returned to her village near [City 1] and met more Jehovah’s Witnesses with whom she started to meet more frequently but did so in her car as her daughter did not want them to meet at the house they shared.

   ·     One day she went to her car but found it vandalised and the Jehovah’s Witnesses literature she had in her car had been destroyed. 

   ·     In September 2017, while waiting at a bus stop, she was discussing her beliefs when a Cossack man confronted her and told her what she was saying was illegal. He started shouting at her and then hit her, knocking her to the ground. A passing police car stopped but she was arrested and detained overnight without charge. The police demanded money from her which she did not pay. When she was released from detention she went home to find her money gone, and her Bible and her Watchtower magazine destroyed and her dog killed, with a warning for her to get out or be killed.

   ·     She decided to leave for Australia but hid until her visa was granted. She started attending services in Australia.

9. Two statutory declarations confirming the applicant’s attendance at a Jehovah’s Witnesses congregation in Sydney were also provided with the legal submissions and applicant’s statement. 

10. On 26 July 2021, the applicant was invited to an interview with a delegate of the Minister for Home Affairs to be held on 9 August 2021. The invitation was sent by email to the email address provided to the Department as the address for correspondence in the applicant’s protection visa application and the Department’s letter acknowledging receipt of that application.  The invitation to an interview also contained information about the interview translated into Russian. On 6 August 2021, the applicant’s representative contacted the delegate to inform him that the applicant was unable to attend the interview as she was tearful and traumatised.

11. On 23 September 2021, a delegate of the Minister for Home Affairs refused the applicant’s protection visa application. The delegate found the applicant’s written statement was of little probative value as it was brief and her claimed interactions with Jehovah’s Witnesses appeared to be sporadic and random in nature. The delegate found the applicant’s account vague and determined that she was not a Jehovah’s Witness. He therefore did not accept she had been assaulted by Cossacks or detained for this reason. The delegate also put little weight on the supporting statutory declarations regarding the applicant’s attendance at a Jehovah’s Witness congregation in Sydney. In making this finding, the delegate noted that he was not satisfied the author of the first statutory declaration was a Jehovah’s Witness himself and that the evidence in the second statutory declaration was second hand evidence of the applicant’s attendance at the meetings.  The delegate did not accept the applicant was a member of the Jehovah’s Witnesses in Russia or Australia and therefore found that she would not face a real chance of serious harm in Russia for this reason. Having made these findings, the delegate also found that there were not substantial grounds for believing the applicant would face a real risk of significant harm in Russia.  

12. The applicant was notified by email sent to her representative.

    Evidence before the Tribunal

13. On 30 September 2021, the applicant applied for review of the delegate’s decision to refuse her protection visa application. The application for review included a copy of notification of the delegate’s decision to refuse her application and the reasons for the decision.

14. On 23 July 2024, the applicant’s representatives provided submissions, which were substantially similar to the submissions provided to the Department in 2018, though with some updated country information and updated references to Tribunal decisions. The applicant’s statement and two statutory declarations that had been provided to the Department in 2018 were attached to the submissions.

15. The applicant attended a hearing at the Tribunal on 13 September 2024. Where relevant, the evidence provided by the applicant at the hearing is set out below in the section ‘Analysis – assessment, reasons and findings’.

16. No further information or evidence has been provided to the Tribunal in relation to the applicant’s claims.

    Independent information

    Situation for Jehovah’s Witnesses in Russia

17. There are an estimated 175,000 Jehovah’s Witnesses in Russia.[1] In April 2017, Jehovah’s Witnesses were declared ‘extremist’ by the Supreme Court of Russia.[2] The ruling followed years of harassment campaigns and regional court rulings due to its perceived opposition to the Orthodox Church in Russia.[3] A consequence of the Supreme Court ruling is that individual Jehovah’s Witnesses can be prosecuted if they practise their religion whether in public or private or if they are found with Jehovah’s Witnesses literature.[4] Since the Supreme Court’s decision, more than 2000 home searches have been conducted and 800 arrests have been made of Jehovah’s Witnesses.[5] Several others have received fines.[6] The ruling also triggered an escalation of social aggression and violence towards Jehovah’s Witnesses with reports of Kingdom Halls being vandalised, and reports of children facing pressure and discrimination at school.[7] While Jehovah’s Witnesses have long objected to compulsory military service on religious grounds, following the Supreme Court decision, young Jehovah’s Witness me were subsequently refused the right to perform alternate civilian service.[8]  Further, the central and local religious organisations were listed as ‘liquidated’ in Federal Tax Service records.[9]

    [1] 'Russia: Jehovah's Witnesses now banned', Forum 18 News Service (F18News), 18 July 2017,

    [2] US Department of State, 26 June 2024, available at:

    [3] See e.g.: 'Jehovah's Witnesses to be banned?', Forum 18 News Service (F18News), 23 October 2009; 'Nationwide strike at Jehovah's Witnesses', Forum 18 News Service (F18News), 13 March 2009, available at: ; 'Russian Terror Law Has Unlikely Targets', The New York Times, 3 November 2011,

    [4] 'Russia: Jehovah's Witnesses now banned', Forum 18 News Service (F18News), 18 July 2017, 'United States Commission on International Religious Freedom 2024 Annual Report', United States Commission on International Religious Freedom (USCIRF), May 2024, p.42, available at: '2023 Report on International Religious Freedom: Russia', US Department of State, 26 June 2024, available at: 'Russia: Jehovah's Witnesses now banned', Forum 18 News Service (F18News), 18 July 2017,

    [8] Ibid

    [9] Ibid

18. Prosecutions of Jehovah’s Witnesses for practising their faith do occur.[10] In November 2023, a Jehovah’s Witness man was sentenced to seven years imprisonment for discussing his beliefs with an undercover agent.[11] At the end of 2023, nearly 150 Jehovah’s Witnesses remained under house arrest.[12] Human Rights Watch reported that in 2023 at least 38 Jehovah’s Witnesses were sentenced to up to seven years in prison and 68 others were sentenced to non-custodial sentences.[13] Further sentences were handed down on 5 March 2024 to nine Jehovah’s Witness men on the basis of recordings of their worship, with eight of the men sentenced having spent time in solitary confinement while in pre-trial detention.[14]

    [10] See e.g.: 'Briefing Notes Summary; Russian Federation – July to December 2022', Federal Office for Migration and Refugees, Germany, 01 January 2023;  'RUSSIA: Further jail term for answering fellow prisoners' questions about faith?', Forum 18, 15 July 2024, 'United States Commission on International Religious Freedom 2024 Annual Report', United States Commission on International Religious Freedom (USCIRF), May 2024, p.42, available at: Ibid.

    [13] 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p.524, available at: Russia jails 9 Jehovah's Witnesses for "extremism", Reuters, 6 March 2024, available at:

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

Refugee criterion

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.

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).

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.

Complementary protection criterion

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

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

Analysis – assessment, reasons and findings

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. The Tribunal has considered the applicant’s claims and the independent information described above and for the following reasons, the Tribunal has concluded that the decision under review should be set aside.

Nationality and receiving country

The applicant claims to be a citizen of Russia and no other country. The applicant provided the Department with a copy of her Russian passport. The delegate was satisfied with the applicant’s identity and the authenticity of her passport. The Tribunal also viewed the applicant’s passport at the hearing. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Russia and considers Russia is the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria respectively.

Additional evidence at the hearing

At the hearing the applicant gave further evidence about her background, including evidence that she was raised as an atheist but increasingly developed an interest in religion through her contact with Jehovah’s Witnesses in [City 1] and later in Norlisk. The applicant explained that she first approached Jehovah’s Witnesses in [City 1] in around 2001, shortly after her divorce from her husband in 2000. She explained that she was distressed at the time due to the divorce and the challenge of raising her daughters on her own. Due to this distress, she found consolation in the conversations she had with Jehovah’s Witnesses. She found the conversations she had with Jehovah’s Witnesses whom she spoke to on the streets gave her comfort and help to get through what was a bad time, as did the positive messages of communication, support, and kindness in the brochures they provided.

In the years following her divorce, the applicant had little time to explore her religious beliefs as she was working and raising her children but she maintained an interest in the messages of Jehovah’s Witnesses. Her interest in Jehovah’s Witnesses was piqued again in around 2012 when her daughters had grown up and were leaving home. At the time she was feeling empty and depressed about her daughters leaving and found comfort in the conversations she had with Jehovah’s Witnesses at the time and in the messages in the brochures they gave her. She explained that most of these conversations were incidental and she would approach Jehovah’s Witnesses when she was out of the house and saw them on trains, bus stops or at the market. She explained that she attended one meeting at a person’s apartment after she moved to Norlisk in 2012, but that this meeting was disrupted by hooligans who shouted at the meeting attendees, claiming that they were part of a sect. The applicant explained nobody was hurt during this confrontation as most of the meeting attendees just left the apartment. 

The applicant claimed that in 2017, after she returned to her village near [City 1], she approached a couple in a café as she was seeking company. After speaking to them for a while, she became aware that they were Jehovah’s Witnesses and arranged to meet them again. The applicant met them at her apartment but after her daughter, with whom she was living, expressed discomfort at this, they started meeting in her car.

The applicant also explained that on one occasion, in the months before she came to Australia, a Cossack man overheard her discussing Jehovah’s Witnesses and began to shout at her and hit her. A passing police car stopped to intervene but sided with the Cossack man after he explained what the applicant had been discussing. The police arrested her and took her to the police station. She was not charged or accused of anything but they demanded money from her. When she returned the next day her house had been ransacked and her dog had been killed.

1. After the applicant came to Australia, she joined a Jehovah’s Witnesses congregation and attended regular services, helped by the Russian speaking wife of one of the other attendees. She became a non-baptised preacher and was later baptised and became a baptised preacher. She attended the church twice weekly, wrote letters in Russian and went to talk to Russian speakers in Sydney whose names were on a list kept by the church to encourage them to join the Jehovah’s Witnesses.  The Elder of the congregation gave evidence at the hearing. He confirmed her attendance at the congregation and her involvement in the activities with the congregation. He expressed his view that her faith was genuine and feared for her safety if she had to return to Russia.

2. The applicant also explained that if she were to return to Russia, she would continue to approach people to encourage them to become a Jehovah’s Witness as preaching was central to her faith. She feared that if she did this she may be arrested, interrogated, detained or tortured by the police in Russia.

   Consideration of applicant’s evidence

3. The Tribunal found the applicant’s evidence at the hearing to be convincing. She provided spontaneous and detailed answers about her beliefs, why she became a Jehovah’s Witness and regarding her experiences in Russia while learning about Jehovah’s Witnesses’ beliefs. The applicant was visibly distressed describing her experiences with police in Russia. She explained also that her distress in discussing this experience was a factor in her decision not to attend the interview before the delegate. The applicant’s description of her experiences was consistent with available country information regarding the situation in Russia where practising as a Jehovah’s Witness is banned and many have been arrested for doing so. The applicant’s evidence regarding her practice in Australia was also corroborated by the Elder of the congregation who gave evidence at the hearing. The Tribunal is satisfied that the applicant is a Jehovah’s Witness, and would continue to practice as one in Russia, including preaching her faith to others even while knowing the risk that this would pose to her safety.

   Consideration of applicant’s claims to be a refugee

4. Based on the Tribunal’s findings about the applicant’s faith and that she would practise her faith on return to Russia, and available country information regarding the harm faced by Jehovah’s Witnesses in Russia, the Tribunal is satisfied the applicant would face a real chance of serious harm on return to Russia. The Tribunal accepts that not only are there documented cases of arrest and detention of Jehovah’s Witnesses in Russia, but that many incidents are unreported that would amount to serious harm, including situations similar to the detention and cruel treatment the applicant faced at the hands of police in [City 1] prior to coming to Australia. Given the centrality of preaching to the applicant’s practise of her religion, the Tribunal is satisfied that there is a real chance the applicant would come to the attention of authorities or other people in any community in which she lives and practices her religion and would face a real chance of serious harm for practising her religion. As Jehovah’s Witnesses is considered an ‘extremist’ organisation in Russia and banned throughout the country, the Tribunal find that the risk extends throughout Russia and that effective protection is not available to the applicant. 

   Findings on refugee criterion

5. For the reasons above, the Tribunal is satisfied that the applicant would face a real chance of serious harm on return to Russia because of her religion in the reasonably foreseeable future. The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in Russia. Accordingly, the applicant satisfies s 5H(1).

   CONCLUDING PARAGRAPHS

6. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Further, there is no evidence before the Tribunal to indicate that the applicant has a right to enter and reside in any country other than Australia and, as such, the Tribunal is satisfied that s 36(3) does not apply to the applicant.

   DECISION

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

   Ben Lumsdaine
   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.

   …