2205189 (Refugee)

[2024] AATA 4269

2205189 (Refugee) [2024] AATA 4269 (20 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Tara Kate Rosenberg

CASE NUMBER:  2205189

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Alison Murphy

DATE:20 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2024 at 2:51pm

CATCHWORDS
REFUGEE – protection visa – stateless/Burma – arrival by sea – not unauthorised maritime arrival or fast-track applicant as defined – statelessness, ethnicity, religion and imputed political opinion – assessed by delegate as Burmese citizen Indian Muslim – no documentation – one ID required for high school education and another mandatory for all residents – grandparents migrated and parents unable to obtain citizenship – country information – many ethnic minorities lack citizenship cards, even if qualified – statelessness accepted – risk of harm on return – long residence in Australia – stateless persons denied rights and services – discrimination and restrictions – military coup and human rights violations – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1), 5J(1), (4)(b), 36(2)(a), 65, 438
Migration Regulations 1994 (Cth), Schedule 2

CASE
DBB16 v MIBP (2018) 260 FCR 447

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 March 2022 to refuse to grant the applicant a Temporary Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a stateless and formerly resident in Myanmar, arrived in Australia by boat [in] October 2012 and applied for the visa on 13 July 2015. The delegate refused to grant the visa on the basis that the applicant did not engage Australia’s protection obligations.

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Temporary Protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

4. The applicant was re-notified of their Part 7 review rights by the Department on 18 March 2022 and made a valid application for review within the prescribed period on 7 April 2022.

5. The applicant appeared before the Tribunal on 3 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.

6. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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.

    Mandatory considerations

13. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Section 438 certificate

14. The Tribunal has before it the departmental file relating to the applicant’s application for the protection visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.438 of the Act.

15. The certificate is dated 5 September 2024 and relates to an identity assessment conducted by the Department in respect of the applicant in 2014.

16. As the certificate was received after the hearing, the Tribunal sent the applicant a copy of the certificate and invited his comments on the validity of that certificate. The Tribunal’s letter advised the applicant that the certificate related to an identity assessment and that in the member’s view, the gist of the information in so far as it is relevant to the Tribunal’s consideration had already been disclosed to the applicant in the delegate’s decision.

17. The applicant’s representative responded to the effect that they did not intend to make and submissions as to the validity of the certificate, but requested that if the certificated information materially affected his identity and protection claims that the applicant be invited to a further hearing.

18. Where a certificate is issued under s.438, the Tribunal may have regard to any matter contained in the document or the information and, if it thinks it appropriate to do so, disclose any matter contained in the document or the information to the applicant or any other person who has given oral or written evidence to the Tribunal.

19. The s 438 certificate dated 5 September 2024 appears to be valid on its face. The Tribunal accepts that disclosure of the identity assessment in full would not be in the public interest because it discloses information of a confidential nature about Departmental investigations and procedures where the release of that information may impact on the Department’s ability to effectively undertake those investigations.

20. As well, the gist of the information has already been disclosed to the applicant in the delegate’s decision – specifically the Department’s concerns about his claimed education history, including [social media] posts indicating that he studied at university, and his evidence that his family did not hold a Household Registration List. 

21. In these circumstances the Tribunal has decided not to exercise its discretion to disclose further details of the certificated document or information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    IDENTITY AND COUNTRY OF NATIONALITY

23. There is a dispute about the applicant’s country of nationality.

24. The applicant claims to be a stateless person of Indian ethnicity and Muslim religion born in [Town], Magwe Division, Myanmar. The delegate found that the applicant is a Burmese Indian Muslim from [Town], Magwe Division, Myanmar but did not accept that he is stateless. Rather the delegate found that he was from an ethnic group that is recognised by law as being eligible for citizenship and that he is a citizen of Myanmar.

25. The applicant maintains he has never been recognised as a Myanmar citizen, nor had any official identity documents issued to him. In particular he claims he has never been issued with a birth certificate, Household Registration List (HRL) or Citizenship Scrutiny Card (CSC). He claims to have applied for a CSC at age [age] and again at age [age], however on both occasions his application was refused because his parents were stateless as a consequence of being unable to provide evidence of their own parents’ citizenship.

26. The delegate did not accept the applicant’s claims to be stateless to be true, noting that country information indicates a CSC is required to enrol in high school and the applicant’s evidence is that he was already at high school at the time he applied for the CSC in 2017.

27. The delegate did not accept the applicant’s claim that he did not have an HRL, noting that it is a mandatory document in Myanmar for all residents including stateless Rohingya and other ethnic minorities and is often the only document issued to persons without citizenship. The delegate noted that persons without a HRL are illegal migrants subject to arrest and deportation and people in Myanmar typically seek to bribe authorities to issue them a HRL.

28. At hearing the applicant reiterated the evidence he had previously given to the Department. He said his grandparents on both sides came to Myanmar from India just after the end of the second World War. His parents were born in Myanmar, as was he, as so he described himself as Indian Burmese but none of his family had been able to obtain citizenship.

29. When asked how he was able to attend high school without being a citizen, he said he was able to enrol because his parents paid in full for his schooling and he also had a letter of recommendation from the village head which said the applicant had been born and lived in Myanmar. He said other Muslim children in Myanmar had the same kind of letter from the village head and were able to attend school if their parents were able to pay. Where their parents were not able to pay, those children did not attend school rather they looked after younger children and undertook household duties while their parents worked.

30. When I discussed with the applicant the delegate’s concerns that he claimed not to have a HRL, the applicant gave evidence that his family had a household list issued by the head of the village but he was not sure if this was the HRL referred to by the delegate. He said the list issued by the village head showed himself, his parents and siblings and was updated to include his own wife and children after his marriage. He does not have a copy of that list.

31. DFAT records that household lists are issued and updated by the Ministry of Immigration and Population and the Ministry of Home Affairs. Households are required to report any changes, including relocation and marriages, and Village and Ward Tract Administrators throughout Myanmar are required to move people on and off lists.[1] In view of the applicant’s evidence that his household list was issued by the Village Head, the Tribunal considers the applicant’s family were issued a HRL by the Myanmar authorities.

    [1] DFAT DFAT Country Information Report: Myanmar 11 November 2022 at 5.30, 3.29

32. This is significant, because HRLs record the nationality and ethnicity of the occupants of each household and the delegate considered that the applicant was withholding an important identity document which would reveal his true nationality. The Tribunal shares those concerns, considering the applicant’s evidence at hearing about his family’s household list is inconsistent with his previous statements in these proceedings to the effect that his family did not have a household registration list, including in a statutory declaration made 26 August 2024.

33. However DFAT also reports that ethnicity in Myanmar is a determinant of citizenship and identity is complex, involving elements of ethnicity, religion, language and geographic location. Full citizenship rights are only granted to people who can trace their family residency back to 1823, most of whom belong to eight major ethnic groups. DFAT reports that groups falling outside of these categories, including many people of Chinese or Indian descent, are excluded from citizenship altogether. Racial discrimination is widespread and institutionalised and people of South Asian or Chinese heritage have difficulty accessing government services. More than a quarter of Myanmar residents lacked a legal identity and ethnic minorities are more likely to be undocumented, while an estimated 65% of Muslims lack citizenship cards, finding it difficult or impossible to obtain them, even if they are theoretically qualified.[2]

    [2] Ibid at 3.1 – 3.3

34. It is not in dispute that the applicant is of Indian ethnicity and Muslim religion. As DFAT indicates that such persons are frequently denied legal identity documents and excluded from citizenship, the Tribunal is not satisfied that the applicant is a Myanmar citizen as found by the delegate. While the Tribunal has found the applicant’s family were issued with an HRL, DFAT advises that identity documents including HRLs are subject to significant fraud and are easily obtainable. As HRLs are necessary to access education, health services, electricity and water, there is a clear incentive to obtain fraudulently issued documents.[3]

    [3] Ibid at 5.31, 5.36

35. The Tribunal has noted the [Social media] information indicating that inactive profiles in the names of the applicant and his sister suggest they each attended university in Myanmar and worked at [Social media], which is denied by the applicant in each case. The Tribunal considers it highly unlikely that either of those matters are true, not least because the University of [name] in Mandalay was not yet founded at the time [Social media] records the applicant attending that institution.[4] The Tribunal notes that it is not uncommon for people to represent their circumstances on social media in a manner that more closely reflects their aspirations than their reality.

    [4] [Deleted].

36. For the above reasons, the Tribunal finds the applicant is of Indian ethnicity and Muslim religion and that he has been denied citizenship by the authorities of Myanmar.

    Risk of harm on return

37. As the applicant is stateless, he cannot be returned to Myanmar and his claims must be assessed against his country of former habitual residence. In the applicant’s case, this is also Myanmar.

38. As noted above, ethnicity in Myanmar is a determinant of citizenship and basic rights, with many people denied these rights in law and in practice. Stateless persons in Myanmar are denied fundamental rights and basic services including access to healthcare and education, employment opportunities, freedom of movement, freedom to choose the timing and number of their children, freedom to marry whom they choose, and freedom to run for political office.[5]

    [5] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) 3.1–3.3

39. The applicant is also of South Asian (Indian) descent. Ethnic Indians experience discrimination in Myanmar on the basis of their skin colour and presumed Muslim religion. Muslims also experience discrimination and restrictions on their ability to practise their faith and are frequently denied basic rights and services.[6]

    [6] Ibid 3.32

40. DFAT’s current report provides the following assessment of conditions in Myanmar:

    Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in antiregime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest) … Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.[7]

    [7] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 3.47

41. DFAT states that:

    anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.[8]

    [8] Ibid, 3.51

42. In relation to failed asylum seekers, DFAT reports that:

    given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries …, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[9]

    [9] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 5.25

1. In February 2023 the UNHCR reported:

   People in all parts of Myanmar, in the two years since the military coup, remain exposed to daily human rights violations. In addition to the use of violence by the military itself, some pre-existing conflicts between the military and ethnic armed organizations have been reignited and violence has spread nationwide, dramatically changing the conflict landscape in Myanmar and heightening concerns for the protection of civilians. Global advocacy for peace and restraint have remained unheeded and the military, emboldened by absolute impunity, has consistently shown its disregard for international obligations and principles.[10]

   [10] Report of the United Nations High Commissioner for Human Rights, ‘Situation of human rights in Myanmar since 1 February 2022’, 2 March 2023 at para 5

2. Other sources report that representatives of the military junta stated publicly in September 2022 that showing moral support for the democracy movement was an act of terrorism, threatening jail terms of up to 10 years just for sharing pro-democracy content on social media, and even longer for those who provided even small amounts of money.[11]

   [11] Martin Petty and Ed Davies, ‘Myanmar Military Threatens Jail for Online “Likes” for Opponents’, Reuters (online) 20 September 2022 < 20/?fbclid=IwAR1AHIyI780B3woJ_eMMc4ICl9IKJe0PfPsdst8pTJNJMPHikowzSleLmdA>

3. The applicant claims to have made posts on [Social media] that are critical of the Burmese authorities in an account that he operates in the name of [name], whom he told the Tribunal was a former girlfriend in Myanmar. At hearing he said he has stopped using that name at her request and has changed the account name to [a different name]. As the applicant has not posted under his own name, the Tribunal is not satisfied that his [Social media] posts would come to the attention of the authorities in Myanmar.

4. However in view of the country information cited above, the Tribunal accepts that the applicant’s Indian ethnicity, Muslim religion and long period of residence in Australia will cause him to be imputed with a political view that is opposed to the Myanmar military regime putting him at high risk of official harassment, arbitrary detention and violence.

5. For all of the above reasons, the Tribunal finds that if the applicant were to return to Myanmar, there is a real chance that he would be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities for the combined reasons of his lack of nationality, Muslim religion and political opinion. Such treatment amounts to serious harm under s 5J(4)(b) of the Act and the essential and significant reason for that harm is his political opinion.

6. In considering whether the applicant can obtain protection from the authorities of Myanmar, DFAT reports that the Myanmar military is ‘overwhelmingly the main violator of human rights and international humanitarian law’, targeting civilians they perceive as supporting their enemies.[12] As the agent of persecution is Myanmar’s military regime, the Tribunal finds that the real chance of persecution relates to all areas of Myanmar and that effective State protection is not available to the applicant. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Myanmar.

   [12] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 2.30–2.31

7. In light of the Tribunal’s findings and conclusions, it is not necessary for the Tribunal to go on and consider his other claims for protection that arise out of events that are said to have occurred prior to his departure from Myanmar.

8. 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).

   DECISION

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

   Alison Murphy
   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.

   …