2313971 (Refugee)

[2023] AATA 4485

2313971 (Refugee) [2023] AATA 4485 (13 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2313971

COUNTRY OF REFERENCE:                   Solomon Islands

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 9:10am

CATCHWORDS
REFUGEE – protection visa – Solomon Islands – no response to tribunal communication – non-attendance at hearing – sex scandal with relative – fear of harm from family – police protection available – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2

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 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 23 August 2023.

2. The Applicant, who claims to be a citizen of the Solomon Islands, 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 the Applicant being removed to the Solomon Islands, 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 4 September 2022.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. 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 5 September 2023.

4. In filing the review application, the Applicant nominated his contact mobile telephone number, his email and his residential address. Subsequently,[6] the Tribunal dispatched to him an email enclosing a letter acknowledging receipt of his application. At first, that email could not be delivered to the email address provided by the Applicant. Essentially it ‘bounced back’.

   [6]On 8 September 2023.

5. The email, along with the letter was emailed a further two times to him, and on each occasion the emails failed to deliver and bounced back. The Tribunal then dispatched the letter to him by way of registered mail to his nominated residential address. The Tribunal is aware that the letter was delivered to the Applicant’s nominated residential address.

6. Subsequently, the Applicant’s file was constituted to a member of the Tribunal, an email was dispatched to him which contained an invitation for him to appear at a hearing of his review application. That hearing was scheduled for 17 October 2023. Again the email failed to deliver it bounced back.

7. On 25 September 2023, a letter pursuant to section 424A of the Act (‘section 424A invitation’) was emailed to the Applicant via inviting him to comment or respond to certain information in respect to the claims he made in his application for a Protection visa. That email bounced back. A copy of the invitation was also posted to his residential address by way of registered mail and it 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.

8. The section 424A invitation went on to explain to the Applicant 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.

9. The deadline of 10 October 2023 was provided for his response, and accordingly, the invitation 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.

10. The Tribunal has confirmed that the section 424A invitation sent to the Applicant’s residential address had been delivered by Australia Post. No response was received from the Applicant within the allocated time frame. Because he 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, the Applicant lost his entitlement under the Act to appear before the Tribunal to give evidence and present his arguments.

11. In a later email dispatched to him, the Applicant was advised of the Tribunal’s decision and the scheduled in-person hearing was cancelled.[7] Again, that email bounced back to the Tribunal. A copy of the letter dispatched to him in the email was also posted to his nominated residential address by registered mail.

    [7]Email dispatched to the Applicant on 11 October 2023 at 11:40am.

12. The Tribunal also notes that apart from lodging his review application with the Tribunal, the Applicant has not otherwise communicated with the Tribunal. As outlined above, when the Tribunal acknowledged his review application, a letter was dispatched in an email to his nominated email and also posted to his residential address. In that letter, he was advised that he should:

    ·    tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;

    ·    tell us immediately if your personal circumstances change and this is relevant to the review of the decision;

    ·    use your case number 2313971 when you contact us.

13. The Applicant has not advised the Tribunal of any changes to his contact details or that any of his personal circumstances have changed.

    CRITERIA FOR A PROTECTION VISA

14. The measures for a Protection visa are set out in the Act[8] 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.[9] 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.

    [8]Migration Act 1958 (Cth), s 36.

    [9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

15. 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.[10]

    [10]Migration Act1958 (Cth), s 36(2)(a).

16. 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.[11] 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.[12]

    [11]Migration Act1958 (Cth), s 5H(1)(a).

    [12]Migration Act1958 (Cth), s 5H(1)(b).

17. 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.[13]

    [13]Migration Act 1958 (Cth), s 5J(1).

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.[14]

    [14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

19. If a person is found not to meet the refugee criterion in the Act,[15] 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’).[16]

    [15]Migration Act 1958 (Cth), s 36(2)(a).

    [16]Migration Act 1958 (Cth), s 36(2)(aa).

20. 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.[17]

    [17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

21. 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.[18]

    [18]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).

22. 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.[19]

    [19]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

23. The Applicant claims to be a citizen of the Solomon Islands and he provided to the Department a copy of his passport to authenticate this claim.[20] 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 the Solomon Islands is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[21] 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.[22]

    [20]Applicant’s passport issued in Honiara, Solomon Islands on 5 September 2016.

    [21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

    [22]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

24. In accordance with Ministerial Direction No. 84 made under the Act,[23] 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.

    [23]Migration Act 1958 (Cth), s 499.

    CONSIDERATION OF APPLICANT’S CLAIMS

25. 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 the Solomon Islands, 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.[24]

    [24]Migration Act 1958 (Cth), s 36(2).

26. 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.

27. 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.[25] Nor is the Tribunal required to accept uncritically any and all the allegations made by the Applicant.[26]

    [25]Migration Act 1958 (Cth), s 5AAA.

    [26]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

28. The Applicant claims he came to Australia to work as a seasonal worker and he does not want to return to the Solomon Islands. He had made a big mistake with his own family because he had sex with his own [relative], and their families do not want him to return to the Solomon Islands.

29. He fears that he will be harmed or mistreated if he returned to the Solomon Island because his [relative]’s family have threatened to chop his head off if he came back to the Solomon Island. He also claims that even his own family will kill him.

30. The Applicant said that he did not seek help in the Solomon Islands and did not relocate to avoid harm because he does not think that the authorities in the Solomon Islands can and will protect him. He also claimed that he could not relocate within the Solomon Islands to avoid potential harm because it is not a large place.

31. The Tribunal notes that the Applicant suggested in his application that he would subsequently provide documents or letters of support, however he has not provided any such material to the Delegate, and nor has he provided any additional supporting material to the Tribunal.

32. The Tribunal finds that he has been provided with the opportunity to provide all of the details of his protection claims, as well as evidence to support those claims. However, he has failed to provide to the Tribunal or the Department any evidence or other supporting material.

    Country information

33. Under section 5J(2) of the Act, a person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

34. Section 5LA(1) of the Act provides circumstances where effective protection measures are taken to be available to a person, including where the relevant State, or a party or organisation is willing and able to offer protection, and the protection is durable and accessible to the person. If protection is provided by the relevant state, the protection should consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

35. The Applicant claims that he cannot return to the Solomon Islands for fear of harm from his own family because of the alleged sexual scandal involving him and his [relative]. He fears that, if he returned to the Solomon Islands, he will be harmed or killed, and the authorities in the Solomon Islands will not provide him with protection upon his return to the country.

36. In assessing the Applicant’s claims, the Tribunal has given regard to, and very carefully assessed, the significant credible and reliable country information available to the Tribunal which provides that the Royal Solomon Islands Police Force (‘the police force’) is responsible for internal and external security and reports to the Ministry of Police, National Security, and Correctional Services. Through a series of bilateral agreements with foreign governments, elements of foreign police forces play an active and essential role in domestic policing.[27]

    [27]Country Reports on Human Rights Practices for 2022, Solomon Islands, US Department of State, 20 March 2023, p. 1.

37. In respect to the judiciary and the police force, contained within Freedom House’s Freedom in the World 2023 report on the Solomon Islands is the following relevant country information.

    The judiciary has a reputation for independence, though a severe lack of resources has contributed to case backlogs. Judges are appointed by the Governor-General on the advice of an impartial Judicial and Legal Service Commission. The Court of Appeal is mainly reliant on foreign judges.[28]

    There are few major threats to physical security, though crime remains a problem in some areas. While the country has a history of internal conflict, the threat has subsided over the past two decades, thanks in large part to security aid from international partners.

    The police force, which was disarmed in 2003, has been entirely rebuilt with the help of the Australian-led Regional Assistance Mission to the Solomon Islands (RAMSI), which launched that year. Mostyn Mangau became the first locally appointed police commissioner in 19 years when he took the post in 2020.

    In the wake of the November 2021 riots, Chinese police were deployed in March 2022 to train the Solomon Islands police officers in combat skills and emergency crowd management. The unpublished security agreement reached with China in April 2022 reportedly allows for the deployment of Chinese armed police to help control disturbances in the country and protect foreign-owned capital assets.[29]

    [28]Freedom in the World 2023 - Solomon Islands, Freedom House, 2023, Part F1.

    [29]Freedom in the World 2023 - Solomon Islands, Freedom House, 2023, Part F3.

38. The 2021 United Nations Office of the High Commissioner for Human Rights, Pacific Community, Situational Analysis 2020 report states the following regarding access to justice within the Solomon Islands:

    Legal aid is available in criminal, family and civil matters, and is administered by the Public Solicitor’s Office. Historically, the Public Solicitor’s Office is overburdened and under resourced, with recommendations made for the government to recruit more lawyers for the Family Protection Unit within the office. Various UN recommendations have reiterated the need to expand services beyond the capital of Honiara and to reactivate the circuit courts in order to facilitate access to judicial services for victims of violence living outside the capital. The [Universal Periodic Review] UPR Working Group (2016) recommended increased budgetary allocation to the training of police officers and the judiciary to ensure that women have equal and substantive access to justice under the Family Protection Act.[30]

    [30]Human Rights in the Pacific. A Situational Analysis 2020, Human Rights & Social Development (HRSD) Division, Pacific Community (SPC) and Regional Office for the Pacific, United Nations Office of the High Commissioner for Human Rights, Pacific Community, 2 August 2021, p. 219.

1. The Penal Code within the legal system of the Solomon Islands provides for a range of offences which are all classified as unlawful acts, including assault. The more serious offences such as murder and grievous bodily harm carry significant terms of imprisonment, including life imprisonment.

2. Within the Solomon Islands, crimes involving violence may constitute a crime under the Penal Code or other criminal act, such as domestic violence legislation.[31] For violent crimes, or offences involving the threat of violence, police officers have the authority to issue a Police Safety Notice (PSN) in any situation where a person is under pressing threat of violence.[32] Police data from 2017 to 2019 shows that 1034 PSNs were issued across some provinces of the Solomon Islands, however, in provinces that experience higher levels of violence, such as Temotu and Isabel, there was a lower use of PSNs. This is perhaps that the more serious offences warrant the perpetrator being arrested rather than a PSN being issued.[33]

   [31]Reference Guide For The Judiciary When Adjudicating Cases Of Domestic Violence', Morgane Landel, Regional Rights Resource Team, The Pacific Community,, Pacific Community, 22 November 2018, 20190617103438, p. 32

   [32]Women’s experiences of family violence services in Solomon Islands', Australian Aid, 26 November 2019, 20230424145519, p. 29

   [33]Women’s experiences of family violence services in Solomon Islands', Australian Aid, 26 November 2019, 20230424145519, p. 29

   CONCLUSION AND REFUGEE FINDINGS

3. The reliable country information quoted above shows that the police force is largely a professional law enforcement organisation and is generally seen to be impartial with the ability to protect individuals from societal harassment, discrimination, and violence, and is relatively accessible to the general public. Any acts of violence, threats of harm, or physical harm is considered unlawful and punishable under the laws of the country.

4. The Tribunal particularly notes that the Applicant claims that the authorities in the Solomon Islands cannot and will not provide him with protection. The Tribunal does not accept that claim and when arriving at that determination, the Tribunal recognises that the Applicant has provided no evidence to support his claim. As such, the Tribunal considers that more weight should be applied to the independent country information detailing the authorities’ actions to protect individuals from violence as opposed to the unsupported claims made by the Applicant.

5. The Tribunal is satisfied (and so finds) that in general, a person within the Solomon Islands is likely to be able to obtain effective state protection against persecution or serious harm from an individual or another party. When carefully considering the credible and reliable country information, the Tribunal finds that the authorities in the Solomon Islands are willing and able to provide effective protection to persons within the jurisdiction.

6. The Tribunal has particularly noted and assessed the claim made by the Applicant that he has been threatened with harm from his own family. He has not provided a scintilla of evidence, either to the Department or the Tribunal which supports his claims, and nor has he provided any details about any interaction he has had (if any at all) with the authorities whereby he has sought assistance in respect of any threat of violence made against him.

7. Having regard to, and carefully considering all the facts, features and circumstances as outlined above, the Tribunal finds that the Applicant is not a person in respect to whom Australia has protection obligations as defined in the Act.[34]

   [34]Migration Act 1958 (Cth), s 36(2).

8. Therefore, the Tribunal does not accept that the Applicant is a refugee as defined in section 5H of the Act, and nor has the Applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him

   COMPLEMENTARY PROTECTION CONSIDERATIONS

9. Having already concluded that the Applicant does not meet the refugee criterion as provided by the Act,[35] the Tribunal has considered the alternative criterion.[36] 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 the Solomon Islands, there is a real risk that he will suffer significant harm as it is defined in the Act.[37]

   [35]Migration Act 1958 (Cth), s 36(2)(a).

   [36]Migration Act 1958 (Cth), s 36(2)(aa).

   [37]Migration Act 1958 (Cth), s 36(2A).

10. 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 the Solomon Islands. 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.[38]

    [38]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

11. 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 the Solomon Islands 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

12. 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

13. 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 the Solomon Islands, he will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

14. 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

15. 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.

16. 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

17. 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.

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36     Protection visas – criteria provided for by this Act

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(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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