2313574 (Refugee) - [2023] AATA 4484

2313574 (Refugee) [2023] AATA 4484 (13 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2313574
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Wayne Pennell
DATE:13 October 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 13 October 2023 at 9:02am
CATCHWORDS
REFUGEE – protection visa – East Timor – financial situation and difficulty finding employment – no claim of past harm or fear of future harm – no explanation or evidence for delay in applying for protection – reply to hearing invitation did not include ‘response’ to information – loss of right to hearing – applicant’s responsibility to specify claims and provide evidence – claims do not relate to refugee criteria – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
McDonagh v MICMSMA [2022] FedCFamC2G 226
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong (1997) 191 CLR 559
Re Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Zhang Su Rong v RRT [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the Delegate’) to refuse to grant the Applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The Delegate’s decision of 31 August 2023.
The Applicant, who claims to be a citizen of Timor-Leste, applied for a Protection visa.[2] The Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Timor-Leste, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]
[2]The Applicant’s application was received by the Department of Home Affairs on 11 March 2023.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The Applicant filed an application (‘review application’) with the Tribunal to review the Delegate’s decision,[5] and in doing so, he declined to provide the Tribunal with a copy of the Delegate’s decision. The Tribunal notes that he was not represented in relation to the review.
[5]The Applicant’s review application was filed with the Tribunal on 3 September 2023.
Subsequently, the Applicant’s file was constituted to a member of the Tribunal, and an email was dispatched to him on 22 September 2023 which contained an invitation for him to appear at a hearing of his review application. That hearing was initially scheduled for 16 October 2023.
On 25 September 2023,[6] a letter pursuant to section 424A of the Act (‘section 424A invitation’) was emailed to the Applicant asking him to comment or respond to certain information in respect to the claims he made in his Protection visa application. The letter explained:
I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
[6]Email dispatched at 12:07pm
The letter went on to explain the particulars of the information and why the Delegate was satisfied that he did not meet the definition of a refugee, and why he was not considered to be a person who was owed protection obligations.
The deadline of 10 October 2023 was provided for his comments or response, and accordingly, the letter explained:
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
Later in the afternoon of the same day the Tribunal had emailed the section 424A invitation to the Applicant, he emailed the Tribunal twice.[7] Each of those emails contained the same message, which the Tribunal found to be somewhat confusing as to what he was seeking from the Tribunal. He said:
Hllo afternoon Sr. Can you translate in to TETUM languages couse I'm from east timor
[7]On 25 September 2023 at 4:21pm and 5:25pm.
On the following day,[8] the Tribunal emailed the Applicant and asked him to clarify the above comments and he was asked whether he was requesting a Tetum interpreter for the hearing scheduled for 16 October 2023.
[8]On 26 September 2023 at 1.36pm.
The Applicant’s response was to send the Tribunal an email which contained a link to an internet website.[9] No explanation was provided as to what relevance the link played with respect to his application. For software security reasons, the Tribunal did not access that link.
[9]Received at the Tribunal on 26 September 2023 at 3:52pm.
On 28 September 2023,[10] the Tribunal emailed the Applicant and advised that the Tribunal was unable to accept documents that were provided via a link in an email. He was asked to resubmit the information in PDF format as an attachment to an email.
[10]At 9:34am.
Later that day,[11] the Applicant emailed the Tribunal his response to the hearing invitation for the hearing scheduled for 16 October 2023. He indicated that he wished to participate in that hearing. The Tribunal then advised him that the hearing had been cancelled and postponed to 23 October 2023. Another hearing invitation was provided to him for that newly scheduled hearing. He responded that same afternoon indicating that he would attend.
[11]At 1:16pm.
The Tribunal notes that although he had responded to the hearing invitations, he has not provided a response or comment in regard to the section 424A invitation. The question which arises in the mind of the Tribunal is whether the Applicant, by his response to the hearing invitations, this constituted a response to the section 424A invitation such that he retained his entitlement to attend a hearing.
The Tribunal finds that the Applicant’s response to the hearing invitations cannot be considered as a response to the section 424A invitation. Guidance has been provided to the Tribunal in earlier determinations of the Court which found that because the template form (Response to the Hearing Invitation) allows the Applicant to notify the Tribunal of any requirements for the hearing, but it cannot be seen as a ‘reply’ or ‘answer’ directed to the information requested by the Tribunal in a section 424A invitation.[12]
[12]McDonagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 226, [58] – [59] citing Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 93 [64] – [65].
Therefore, because the Applicant has not responded to the section 424A invitation within the allocated time frame, the Tribunal exercised its discretion to make a decision in this matter in the absence of the Applicant. That is, he lost his entitlement under the Act to appear before the Tribunal to give evidence and present his arguments.
CRITERIA FOR A PROTECTION VISA
The measures for a Protection visa are set out in the Act[13] and Schedule 2 to the Migration Regulations1994 (Cth). An Applicant for the visa must meet one of the alternative criteria as provided in the Act.[14] That is, the Applicant 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.
[13]Migration Act 1958 (Cth), s 36.
[14]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[15]
[15]Migration Act1958 (Cth), s 36(2)(a).
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.[16] 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.[17]
[16]Migration Act1958 (Cth), s 5H(1)(a).
[17]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[18] 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 the Act, which are extracted in the attachment to this decision.[19]
[18]Migration Act 1958 (Cth), s 5J(1).
[19]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[20] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[21] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[22]
[20]Migration Act 1958 (Cth), s 36(2)(a).
[21]Migration Act 1958 (Cth), s 36(2)(aa).
[22]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[23]
[23]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[24]
[24]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The Applicant claims to be a citizen of Timor-Leste and he provided to the Department a copy of his passport to authenticate this claim.[25] The Tribunal accepts the Applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Timor-Leste is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[26]
[25]Applicant’s passport issued in Timor-Leste [in] 2022.
[26]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the Applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[27]
[27]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[28] 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.
[28]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANT’S CLAIMS
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Timor-Leste, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[29]
[29]Migration Act 1958 (Cth), s 36(2).
The mere fact that the Applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the Applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the Applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the Applicant’s case for him. It is his responsibility to specify all particulars of his 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim.[30] Nor is the Tribunal required to accept uncritically any and all the allegations made by the Applicant.[31]
[30]Migration Act 1958 (Cth), s 5AAA.
[31]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
APPLICANT’S BACKGROUND AND CLAIMS
[In] September 2022, the Applicant arrived in Australia on a [Temporary Work] visa granted to him granted on 13 September 2022. That visa was due to expire on 30 June 2023.
The Tribunal notes that he was in Australia for almost six months before he made his application for a Protection visa. The issue of his delay is discussed later in these reasons.
The Applicant’s claims for protection are relatively simplistic. He claims that because of the financial situation in Timor-Leste, it is difficult for him to find employment. He went on to claim that when he was in Timor-Leste, he did not experience harm and he does not consider that he will be harmed if he returned.
When making those claims, the Applicant was afforded the opportunity to provide all of the details of his protection claims, and he was advised that he could provide additional information relating his claims before the making of the Delegate’s decision. It was explained to him how he could provide that information, however he did not take up that opportunity to provide either the Delegate or the Tribunal with any additional information outside the claims he expressed within his application.
DELAY
The Tribunal notes the Applicant first arrived in Australia [in] September 2022, and almost six months later he lodged his application for a Protection visa on 11 March 2023. The Tribunal finds that this is a substantial period between his arrival, and when he made his application.
In respect to any consideration given by the Tribunal about the almost six months delay between his arrival and the lodging of his application for a Protection visa, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an Applicant’s fear of persecution.
Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the Applicant does not have a well-founded fear of harm. A significant delay is not behaviour indicative of someone who fears for their physical safety[32] and the Tribunal particularly notes that the Applicant has provided no evidence or offered any explanation when he applied for the Protection visa as to why there was an extraordinary delay in making his application.
[32] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].
CONCLUSION AND REFUGEE FINDINGS
Although he did not experience harm in Timor-Leste, and he does not consider that he would be harmed there, the Applicant claims that he cannot return to Timor-Leste because of economic reasons and he would be unable to find employment.
Section 5J(1) of the Act provides that for the purposes of an application for a Protection visa, the Applicant has a well-founded fear of persecution if he fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and there is a real chance that, if he returned to Timor-Leste he would be persecuted for one or more of the reasons just mentioned; and the real chance of persecution relates to all areas of Timor-Leste.
The Applicant’s claims do not relate to any of the reasons provided in section 5J(1) of the Act and there is no other information before the Tribunal to suggest that he will be subjected to harm upon his return to Timor-Leste for one or more of those reasons.
Having given very careful consideration to this application, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, a real risk exists that he would suffer significant harm or there is a real chance that he would suffer serious harm.
Having regard to, and carefully considering the claims made by the Applicant, the Tribunal finds that he is not a person in respect of whom Australia has protection obligations as defined in the Act.[33]
[33]Migration Act 1958 (Cth), s 36(2).
Therefore, the Tribunal does not accept that the Applicant is a refugee as defined in section 5H of the Act, nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act, and Australia does not have protection obligations in relation to him.
COMPLEMENTARY PROTECTION CONSIDERATIONS

Having already concluded that the Applicant does not meet the refugee criterion as provided by the Act,[34] the Tribunal has considered the alternative criterion.[35] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Timor-Leste, there is a real risk that he will suffer significant harm as it is defined in the Act.[36]
[34]Migration Act 1958 (Cth), s 36(2)(a).
[35]Migration Act 1958 (Cth), s 36(2)(aa).
[36]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the Applicant would suffer significant harm for any of the reasons he claims if he returned to Timor-Leste. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[37]
[37]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered all of the Applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Timor-Leste now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or to cruel or inhuman treatment or punishment, nor will he be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the Applicant, the Tribunal finds that there is not a real chance the Applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the Applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Timor-Leste, he will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the Applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the Applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the Applicant a Protection visa.
Wayne Pennell

Senior 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.
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