2314035 (Refugee)

[2024] AATA 3045

2314035 (Refugee) [2024] AATA 3045 (30 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2314035

COUNTRY OF REFERENCE:                   Solomon Islands

MEMBER:Jane Marquard

DATE:30 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 30 January 2024 at 5:53am

CATCHWORDS
REFUGEE – protection visa – Solomon Islands – victim of domestic violence – threats of harm by ex-partner – evidence lacks detail – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 425, 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 24 August 2023 to refuse to grant her a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO REVIEW

2. The applicant is a [age]-year-old woman from Honiara in the Solomon Islands.

3. According to Department of Home Affairs (Department) records, she arrived in Australia [in] October 2021 on a [Temporary Work] visa.

4. The applicant applied for the protection visa which is the subject of this review on 21 September 2022. She claimed protection in Australia for reasons of fear of domestic violence in the Solomon Islands.

5. A delegate of the Department refused to grant the visa on the basis that insufficient detail was provided about the alleged domestic violence.

6. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   EVIDENCE CONSIDERED

7. On 11 September 2023 the Tribunal acknowledged the applicant’s application for review and invited her to provide material and submissions as soon as possible. No response was received.

8. On 9 October 2023 the applicant was invited by the Tribunal to appear before the Tribunal on 8 November 2023 to give evidence and present arguments relating to the issues arising in her case. A video hearing via MS Teams was arranged for her as she was listed as residing in [a town]. In the hearing invitation letter, she was invited to advise the Tribunal if she preferred to attend in person at the Sydney office.

9. She was invited to complete a ‘Response to Hearing Invitation’ form within 7 days of receipt of the letter. She was also advised that she could request an adjournment if necessary.

10. On 16 October 2023 the applicant provided a completed ‘Response to Hearing Invitation’ form to the Tribunal. She stated in the form that she would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear.

11. The Tribunal has made a decision on the papers before it, as the applicant consented to the Tribunal doing so, pursuant to s 425(2)(b) of the Act. The Tribunal has before it the applicant’s application and Department file.

12. The evidence before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[1]

    [1] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

    SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

13. The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

    [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

14. Australia acceded to the 1951 Convention relating to the Status of Refugees[3] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[4] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]

    [3] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).

    [4] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

    [5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.

15. 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).

16. Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

17. An applicant must establish that he or she is:

    a.a refugee (the refugee criterion);[6] or

    b.qualifies for complementary protection (the complementary protection criterion);[7] or

    c.is a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[8]

    [6] Section 36(2)(a) of the Act

    [7] Section 36(2)(aa) of the Act.

    [8] Sections 36(2)(b) and (c), the Act.

    Refugee criterion

18. Section 36(2)(a) of 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 is satisfied Australia has protection obligations because the person is a refugee.

19. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality:  s 5H(1)(a) of the Act.

20. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

21. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).

22. 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– 5L of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

23. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

24. 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) of the Act, which are extracted in Attachment A to this decision.

    Mandatory considerations

25. 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.

    FINDINGS AND REASONS

    Nationality

26. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

27. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

28. The applicant has a passport from the Solomon Islands issued [in] 2021. The Tribunal is satisfied based on her passport that she is a national of Solomon Islands, and that Solomon Islands is the receiving country for the purposes of the legislation.

    The refugee criterion – does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

29. 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.[9]

    [9] Section 5H(1) of the Act

30. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

31. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:

    ·     the person 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 the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and

    ·     the real chance of persecution relates to all areas of a receiving country.

    Is there a real chance of serious harm if the applicant were to return to their home country?

32. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept,[10] –  not only must a person fear persecution, there must also be a prospect of that fear being realised.

    [10] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>

    In order to assess whether there is a real chance of serious harm if the applicant were to return to the Solomon Islands, the Tribunal must make findings about the particulars she provided in her application and the incidents she claimed took place when she was living in the Solomon Islands, as these incidents form the basis of her claim.

33. The Tribunal accepts the personal particulars provided – that she was born in [year] in Honiara where she lived until she travelled to Australia in October 2021. She speaks Pidgin, is of Melanesian ethnicity and is a Christian. She said that she studied until Year 8 at school and worked as a labourer before coming to Australia.

34. In regard to her claims for protection, the Tribunal has before it only limited information in her application form and a short written statement which accompanied the protection visa application form. She said in her form that:

    I am a single mum and my life has been a real mess all this time since I got involved with a man in 2018 who was not my legal husband and not also my 'bride-price husband' and his name is [Mr A]. He is from [Island] in Solomon. (In the Solomon Islands, a girl can be taken away as a 'wife'from a family once a bride price has been paid by a man)

    To make the long story short, since we met in 2018, [Mr A] had been very good just like what many men would do but later on I found out the real character in this man. He has remained to this day, a drunkard, a drug user and had other affairs with other girls. It was when I would enquire such things with him, that was when the beatings started. It was then that I realized the wrong decision I had made to be with this wild and stupid man but it was too late since I was trapped, there was no way I could get out. I was on my own, since a bride price had never been paid to the family. The beatings and abuses were so bad that I am left with a big injury [scar] when he threw me on rocky grounds.

    To make my case worse, I had reported a few times to the police about these abuses but as they always say, we should settle our own domestic problems. These problems as a matter of fact, are big problematic issues for many Solomon women who face domestic problems but are just not taken seriously by the police.

    In 2021, I got my visa for Season Work in Australia without [Mr A]'s knoweldge in October of the same year, I left the Solomon Islands. Now he has been passing information to some of his relatives who came with me to Australia that if I ever return, he will kill me.

    That has remained a frightening experience for me while I am here in Australia as a seasonal worker since the terms of work would expire and I would be have to return home. This is my main reason of applying for Protection Visa so that I would remain safe here in Australia.

    I am now pleading with Immigration Ministry to have sympathy with my case since I am a desperate single mum looking for survival.

35. The applicant stated in her application form that she could not go back to an abusive and violent partner who would kill her. She said that the police are ‘hopeless’ and cannot be trusted in family problems, particularly if women are bought with a ‘bride price’. She said that her partner would be jealous that she travelled to Australia without his knowledge and this has made the situation more dangerous for her.

36. The information she has provided to the Department is lacking in detail in significant respects. The applicant’s appearance at a Tribunal hearing would have provided an opportunity to address the various gaps, to test her evidence, and to discuss what further information and details are available. Among the claims on which the Tribunal has insufficient evidence before it are the following:

    ·The relationship details of the applicant and her partner including residence.

    ·Details of involvement of other family members and protection available from them.

    ·When and how frequently her partner assaulted her and details of the incidents.

    ·The reasons she believes he assaulted her.

    ·Her responses to the abuse, and whether she sought help.

    ·Whether there were witnesses to the abuse.

    ·Details of contact with police and whether police records are available.

    ·Whether the police were able to protect her or could do so in the future.

    ·Whether she has other evidence of the assaults, such as evidence from family members or photographs.

    ·Details of the injury on her [body part] and medical treatment obtained.

    ·Whether she sought other medical treatment and whether medical records are available.

    ·Whether she sought assistance from her community such as local chiefs.

    ·How she was able to travel to Australia without the partner’s knowledge.

    ·Who is caring for her child.

    ·Whether she tried to leave her partner.

    ·Details of the information from the relatives that if she returned her partner would kill her.

    ·Whether she is still in contact with her partner.

    ·Whether she would still be in a relationship with him if she returned to the Solomon Islands.

    ·Why she believes he would continue to commit violence on her or kill her if she returned to the Solomon Islands.

    ·Whether she could relocate to a different area to escape harm.

37. The Tribunal notes from the Department file that on 4 October 2022 the applicant was advised by the Department that she could provide additional information relating to her claims. No further information was provided. The Tribunal notes that on 20 December 2022 the applicant was sent correspondence by the Department inviting additional information such as dates and locations, and supporting documentation, as well as details of family composition, address details, dates and location of incidents and other details and explanation of delay in lodgement of the visa application. The Department asked for an explanation as to why documents could not be provided if that was the case. The letter to the applicant also informed the applicant that if she did not respond to the invitation within the specified time frame, the Department would decide the application based on the information before it. No information was provided to the Department in response to these requests.

38. In the Department’s decision dated 24 August 2023, the delegate was not satisfied that there was sufficient information available to determine that the applicant had been harmed by her partner in the Solomon Islands, or that she would be harmed by him in the future.

39. On 11 September 2023 the Tribunal wrote to the applicant to acknowledge her application for review. She was invited to provide written materials or submissions as soon as possible. No submissions or information were provided. In the hearing invitation letter on 9 October 2023 she was again invited to provide documents or submissions but no further information was provided.

40. Although the applicant was notified of the Department decision and as such would have been aware that the Department refused her visa application on the basis of lack of information, the applicant has chosen not to appear before this Tribunal or provide any further documentation to it despite invitations to do so. It is the responsibility of the applicant to specify all particulars of the 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: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.

41. On the limited available material, the Tribunal is unable to be satisfied that the applicant suffered domestic violence in the Solomon Islands or that she would be harmed by her partner if she returned to Solomon Islands.

42. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[11]

    [11] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p 171.

1. As the Tribunal is unable to be satisfied that the applicant suffered domestic violence in the Solomon Islands or that she would be harmed if she returned, the Tribunal is also not satisfied that there is a real chance, that is a substantial or non-remote chance of harm,[12] if she were to return to the Solomon Islands in the reasonably foreseeable future.

   [12] Chan v MIEA (1989) 169 CLR 379.

2. In sum, the Tribunal is unable to be satisfied that the applicant has suffered any harm or other problems that amount, individually or cumulatively, to ‘serious harm’ (for the reasons set out in s 5J(1), or for any reasons at all). The Tribunal is also unable to be satisfied that the harm relates to all parts of the country or that she could not obtain effective state protection.

3. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.

   Does the applicant meet the complementary protection criterion?

4. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).

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

6. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal is not able to be satisfied on the evidence provided that the applicant was subject to domestic violence in the Solomon Islands, nor that she would be if she returned to the Solomon Islands in the reasonably foreseeable future. For reasons set out earlier, the Tribunal is not satisfied that there is a real chance of serious harm were the applicant to return to the Solomon Islands in the reasonably foreseeable future. For the same reasons, on the basis of the decision in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.

7. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the Solomon Islands there is a real risk of significant harm.

   Member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds

8. There is no suggestion that the applicant is owed protection as the member of the same family unit of a person who has been granted a protection visa.

   CONCLUDING PARAGRAPHS

9. 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 s 36(2)(a).

10. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

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

    DECISION

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

    Jane Marquard  
    Member

    
    

    ATTACHMENT A  -  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.

    …