2118018 (Refugee)

[2022] AATA 1132

2118018 (Refugee) [2022] AATA 1132 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2118018

COUNTRY OF REFERENCE:                   India

MEMBER:Luke Hardy

DATE:18 February 2022

PLACE OF DECISION:  Sydney

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

S 417 REFERRAL:  The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.

Statement made on 18 February 2022 at 3:16pm

CATCHWORDS

REFUGEE – protection visa – India – particular social group – disabilities incurred in Australia – severe pain and disability – expensive medical and psychological treatment in India – insurance entitlements relate to Australia – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, [named], is a citizen of India. He first entered Australia on a student visa [in] October 2014. His last substantive visa was a subclass 485 temporary graduate visa issued on 10 November 2017 and valid to 10 November 2019. [The applicant] was seriously injured in a serious motor vehicle collision [in] March 2018, while still the bearer of the temporary graduate visa. He was granted a bridging visa on 21 November 2019.

3. [The applicant] lodged a protection visa application on 11 January 2021. The grounds of his application at the time involved subjective fear of being ridiculed and marginalised by family and society due to the disabilities arising from the motor vehicle accident in 2018. The delegate refused to grant the visa on 30 November 2021. [The applicant] then sought review by this Tribunal and the matter was constituted to me. I find that this is a valid review application.

4. The applicant appeared before the Tribunal by telephone on 17 February 2022 to give evidence and present arguments. He was assisted by his adviser [Representative A] who contributed procedural and legal arguments. The hearing was conducted under conditions dictated by NSW health advice and guidelines due to the ongoing risks associated with the Covid-19 pandemic. I exercised the Tribunal’s discretion to hold an audio hearing, determining it was reasonable to do so, having regard to the nature of this matter and the health of the community including the applicant, his adviser and myself. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to avoiding undue delay to the matter were the hearing not to be conducted by telephone.

5. [The applicant] confirmed that he was happy to proceed by telephone. I invited him to speak up at any time if the process became burdened by audio or other factors, but neither he nor [Representative A] raised no concerns of this nature in the course of the hearing. I am satisfied that [the applicant] was afforded a fair opportunity to put and discuss his claims at the hearing.

   CRITERIA FOR A PROTECTION VISA

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

7. 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.

8. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

10. 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

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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

    The issues

12. The key issue in this case is whether [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, and will refer this matter to the Minister under s 417 of the Act.

14. There is also another issue in this case flagged in pre-hearing submissions and involving a request for Ministerial intervention on compassionate grounds.

    Background and claims

15. [The applicant] claimed to the Department that he feared being persecuted in India by family members and other persons for reasons of the disabilities he has incurred due the 2018 motor vehicle accident mentioned earlier. There appeared to be a relevant nexus to the “membership of a particular social group” criterion in the relevant section in the Act, s 5J(1)(a). However, the claim appears to have been largely speculative in nature. The claim may have been based in a genuine apprehension on [the applicant’s] part at the time, but he has essentially abandoned it in his review application, where he has relied on making a request for Ministerial intervention on compassionate grounds. He and his adviser [Representative A] confirmed their evolved position at the Tribunal hearing.

16. To the extent possible, I endeavoured to explore with [the applicant] and [Representative A] whether any detriment that [the applicant] might suffer in India might meet the definition of significant harm as exhaustively defined in the Act. Given that the evolved position in this case is that [the applicant] fears being unable to afford in India the expensive treatment he requires, we were unable to identify any element of intention to harm [the applicant]; the position is that he simply would not be able to access treatment and support because payments of his medical bills by his insurer would cease upon his departure from Australia. Whereas this would have a devastating effect on his health, life expectancy and dignity, and thus activate consideration of the adjectives in some of the definitions of “significant harm”, such as “cruel or inhuman treatment or punishment” or “degrading treatment or punishment,” we could not find the essential element of intention that might help to establish “significant harm” for the purposes of the Act, notwithstanding that, in the event of removal to India, [the applicant] evidently faces a real risk of not being able to afford the medical and psychological treatment and care he has been receiving.

    Findings in relation to s.36(2)(a) of the Act

17. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]

    [1] MIMA v Rajalingam (1999) 93 FCR 220.

    [2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

18. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]

    [3] 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

    [4] Sun v MIBP [2016] FCAFC 52 at [69].

19. As discussed above, [the applicant] has stepped away from the claims about fearing serious harm from others in India for reasons of his physical and mental condition arising from the 2018 motor vehicle accident. It is very clear to me that he no longer wishes to press any claims regarding fear of being persecuted for any refugee criteria-related reasons.

20. On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in India in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. He is not a refugee.

21. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Findings in relation to s.36(2)(aa) of the Act

22. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

23. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. 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 (ref. MIAC v SZQRB [2013] FCAFC 33).

24. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

25. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

26. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

27. Accepting that [the applicant] is a national of India, I find that India is the receiving country in this matter.

28. To the extent that [the applicant] has made any complementary protection claims in this matter, I have already mentioned that, in examining this aspect of s.36(2), having tacitly ruled out the “death penalty” we were unable to identify the essential element of intention to harm, explicitly applicable in relation to “torture,” “cruel or inhuman treatment or punishment” and “degrading treatment or punishment,” and implicit in the act of arbitrarily depriving life.

29. For this reason I am unable to find that the detriment or harm that [the applicant] claims to face, notwithstanding how real the risk of it appears to me to be, is not “significant harm” for the purposes of the Act.

30. Having considered all of the evidence before me in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to India, there is a real risk that [the applicant] will suffer significant harm. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

31. There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).

    REQUEST FOR MINISTERIAL INTERVENTION ON COMPASSIONATE GROUNDS

32. [The applicant] has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

33. In this case, [the applicant] and his adviser [Representative A] have identified the following Ministerial guideline for submitting a s 417 request:

    Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

34. The request in this case arises due to [the applicant] needing to access insurance entitlements for essential ongoing medical treatment and therapy, which he would not be eligible to receive if he returns to India, where he would have no resources to pay for treatment to mitigate severe pain and disability.

35. An abundance of expert advice, relevant to [the applicant’s] s 417 request, was proved to the delegate, who listed it as follows:

    ·A document [titled] [from Specialist A] which is dated 27/05/2021. The document appears to be a letter compiled by [Specialist A], a vascular and endovascular surgeon and addressed to [Doctor A] at [Health Service 1]. [Specialist A] notes that they believe that the applicant benefits from therapy for his medical condition and that it should continue. Also, that the applicant needs ongoing surveillance.

    ·A document [from Specialist B] dated 14/07/2021. The document appears to be an email from [Specialist B], a consultant in anaesthesia and pain medicine [from Hospital 1]. The email is addressed to [a consultant] at [Insurer 1] CTP Insurance and discusses the applicant’s health and treatment.

    ·A document titled ‘Health Summary Sheet 20_07_2021’ which appears to have been compiled by [Doctor A] on 20/07/2021. The document details the applicant’s current medications, current active problems and past medical history.

    ·A document [titled]. The document contains two letters dated 14/04/2021 and 19/07/2021. The letters discuss the applicant’s health and treatment.

    ·A document [from Specialist B] which appears to be a letter compiled by [Specialist B] dated 21/06/2021 and addressed to [Doctor A]. The letter discusses his health and treatment.

    ·A document [titled] . The document (addressed to the applicant) appears to be a letter compiled by [Lawyer A], an associate for Motor Accident Claims at [Business 1]. The letter notes that [Insurer 1] is responsible for payment of his reasonable and necessary treatment until 5 years post-accident – that is, until [date]/03/2023. Afterwards, his matter will be transferred to Lifetime Care and Support Authority who will then cover treatment as reasonable and necessary.

    ·A document titled ‘[Applicant name]_Accident Photos’ which contains fourteen images of what appears to be the motor vehicle accident and the applicant receiving treatment.

    ·A document titled ‘Worker’s compensation_[Applicant name]’ which includes a letter written by [Doctor B] (dated 02/03/2020) and a letter written by [Doctor C] (dated 27/02/2020). The letters are addressed to [a named] solicitor.

    ·A document titled ‘Medico-legal Report – Dr [C] – 03.01.20_Orthopaedic surgeon_[Applicant name]’. The document appears to be a letter, dated 03/01/2020, compiled by [Doctor C], an orthopaedic surgeon and addressed to [Lawyer A]. The letter discusses the applicant’s injuries and treatment.

    ·A document titled ‘Medico Legal_Dr [B] [report] _Psych_27.11.2019_[Applicant name]’. The document appears to be a letter compiled by [Doctor B], a consultant psychiatrist, dated 27/11/2019. The letter is addressed to [Lawyer A]. The letter discusses the applicant’s physical and mental health as well as treatment.

    ·A document titled ‘GP_Cognitive functioning_[Applicant name]’ which appears to be a letter (address to the Department of Home Affairs) compiled by [Doctor A] dated 20/09/2021. The letter discusses the applicant’s prescribed medications and their effect on this cognitive functioning. The letter details his past medical history and current medications.

    ·A document titled ‘Nerve Block Treatment Approval’ which appears to be a letter (addressed to the applicant) from [a named] insurance consultant, dated 10/09/2021.

    ·A document [titled] which appears to be a letter (dated 06/10/2021) written about the applicant by [Psychologist A], a psychologist and clinical family therapist. [Psychologist A] states that he has provided assessment and therapy to the applicant “in response to anxiety, pain and trauma related issues”. [Psychologist A] states that the applicant continues to attend sessions on a fortnightly basis for therapy and that ongoing therapy support is strongly recommended for the management of his symptoms. [Psychologist A] states that if the applicant were to return to India, it would seriously compromise his psychological treatment and he would be in serious risk of relapse. The applicant is genuinely concerned about his future prospects and social implications with family and friends in India.

    ·A document titled ‘Pain Specialist [B] Letter’ which appears to be a letter (dated 06/10/2021) written by [Specialist B] of [Hospital 1]. The letter states that the applicant will soon receive treatment (stellate ganglion block and cervical branch radiofrequency neurotomies followed by a short ketamine infusion). [Specialist B] states that he is “not sure” if the applicant would be able to access the equivalent treatment in India.

    ·A document [from Insurer 1] which appears to be a letter (dated 06/10/2021) from [a named] insurance consultant. The letter states that “an injured person who is not an Australian citizen or a permanent resident of Australia is not entitled to statutory benefits…in respect of treatment and care provided outside Australia.”

    ·A document [titled] which appears to be a letter (dated 06/10/2021) from [Lawyer A]. The letter states that [deleted] will not be liable to cover medical expenses for the applicant’s accident-related injuries following his departure from Australia and return to India.

    ·A document titled ‘GP Dr [A] Letter’ which includes a letter (dated 07/10/2021) from [Doctor A]. [Doctor A] states that the applicant’s main issues are his ongoing neck pain with significant Regional Pain Syndrome in the right arm with significant mood disturbance. [Doctor A] states that the applicant is under the care of two pain specialists and that the applicant is booked for upcoming treatment with [Specialist B] (stellate ganglion block and cervical branch radiofrequency neurotomies followed by a short ketamine infusion) which will hopefully reduce his symptoms. [Doctor A] states that [Specialist A] (vascular surgeon) has suggested that the applicant requires an ongoing annual review (scanning) and physiotherapy, but does not need surgery. [Doctor A] states that he still stands by the latest (attached) ‘Certificate of capacity / certificate of fitness’ which notes that the applicant has the capacity for some type of work for 8 hours a day, 3 days a week. [Doctor A] states that the applicant is best managed by the team that is currently looking after him as he has complex problems that will require long term ongoing care and this would be best done by his current specialists that are looking after him in Australia. [Doctor A] is unaware whether any of these services would be available to the applicant in India at the level to which he is receiving them here in Australia.

    ·A document titled ‘GP Dr [A] Appointment History 2018’ which appears to be a list of services performed on the applicant. The statement period is recorded to be from 01/02/2018 to 06/10/2021.

    ·A document titled ‘[Ultrasound]’ which appears to be a letter (dated 10/12/2020) compiled by [Specialist A] of [Health Service 2].

    ·An email2(dated 19/10/2021) which indicates that the applicant is booked to have a procedure performed [in November] 2021 and a follow-up appointment on 8/12/2021.

    ·A document (dated 27/10/2021) from [Health Service 2] which states that the applicant has ultrasound appointments on 1/11/2021 and 2/11/2021 as well as a consultation with [Specialist A] on 8/12/2021.

1. These were also directly submitted to the Tribunal. Additional material includes:

   ·Photographs of the car accident, graphically depicting a vehicle completely overturned.

   ·Photographs on [the applicant] in hospital in a head and neck brace.

   ·Fresh statements from [the applicant].

   ·Updated medical reports and opinions as well as evidence of ongoing correspondence with [the applicant].

   ·Recent submissions from [the applicant’s] representative, [Representative A].

2. Together, the submissions make the point that [the applicant], who purchased his tertiary education in Australia and who has since contributed to the Australian economy through his work and taxes, is now owed Australia’s compassion because, should he be required to depart, he will effectively be denied ongoing workers’ compensation, for the injuries he has suffered here in the course of his work, and insurance funds to cover essential medical treatment and recuperative therapy to which he is entitled.

3. I have considered [the applicant’s] case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.

   DECISION

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

   S 417 REFERRAL

5. The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in departmental policy 'Minister's guidelines on ministerial powers (s351, s417 and s501J)' and will refer the matter to the Department.

   Luke Hardy
   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.

   …