2314449 (Refugee)

[2023] AATA 4425

2314449 (Refugee) [2023] AATA 4425 (20 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2314449

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Wayne Pennell

DATE:20 October 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 20 October 2023 at 11:50am

CATCHWORDS

REFUGEE – protection visa – Tonga – non-appearance before the Tribunal – period of unlawful residence – natural disaster – economic conditions – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65, 441A
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559

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. 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 6 September 2023.

2. The applicant, who claims to be a citizen of Tonga, 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 Tonga, 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 16 August 2023.

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

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

3. The applicant was not represented in relation to the review, and he filed an application with the Tribunal to review the delegate’s decision (‘review application’).[5] At a subsequent time, the Tribunal wrote to him and advised that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone.[6] He was then invited to attend an in-person review hearing scheduled for 20 October 2023.

   [5]The applicant’s review application was filed with the Tribunal on 12 September 2023.

   [6]The Tribunal advised the applicant on 12 September 2023.

   CRITERIA FOR A PROTECTION VISA

4. The measures for a protection visa are set out in the Act[7] 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.[8] 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.

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

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

5. 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.[9]

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

6. 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.[10] 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.[11]

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

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

7. 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.[12]

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

8. 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.[13]

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

9. If a person is found not to meet the refugee criterion in the Act,[14] 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’).[15]

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

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

10. 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.[16]

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

11. 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.[17]

    [17]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).

12. 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.[18]

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

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

13. The applicant claims to be a citizen of Tonga and he provided a copy of his passport to the Department authenticate this claim.[19] 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 Tonga is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[20]

    [19]The applicant’s passport was issued in Tonga.

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

14. 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.[21]

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

    MANDATORY CONSIDERATIONS

15. In accordance with Ministerial Direction No. 84 made under the Act,[22] 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.

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

    APPLICANT’S BACKGROUND AND CLAIMS

16. The applicant outlined that he was given the [opportunity] to enter Australia for employment purposes. He was granted a [temporary] visa on 17 March 2021 and arrived here [in] March 2023. That visa was due to expire on 25 March 2023.

17. On 24 March 2022 he was granted a Bridging visa A (subclass 010), which expired on 6 December 2022. On the expiry of the Bridging visa, he was granted a [Visitor visa] which expired on 6 June 2023.

18. From the expiration of his Tourist visa on 6 June 2023 until 19 August 2023 when he was granted a Bridging visa C (subclass 030) in conjunction with the lodgement of his application for a protection visa, the applicant was an unlawful non-citizen for a period of about 10 weeks.   

19. In his application for a protection visa, the applicant claimed that he has a well-founded fear of returning to Tonga because of a disaster that devastating Tonga in January 2022. He said that the disaster happen while he was in Australia and he was referring to the volcanic eruption and subsequent tsunami and toxic ashes on the island of Hunga Tonga on 19 January 2022.

20. The applicant said that the impact of that disaster was horrendous and it destroyed crops, trees, houses and ‘everything else’ on the surface of the lands left nothing behind except a dangerous zone which was unsafe and environmentally unfit for humans occupation.

21. He went on to claim that Tonga does not have any resource for exportation, and the economy is very poor and the citizens rely upon Tongan family members who live abroad to send money home to their family. He said that to make things worse, in every past disaster, Tonga relied upon the United Nations and other foreign countries to provide for Tonga's financial needs when rebuilding any devastation.

22. He said that the true picture is that the Tongan people, including himself are still struggling to survive. The Government does very little to help and there are some displaced citizens still living in temporary shelters after becoming homeless and most citizens are living in confusion, and are suffering from mental illnesses.

23. In summary, the applicant’s claims are that he came to Australia [for employment] in March 2021, and Tonga suffers from natural disasters. Therefore, he fears returning to Tonga because of the destruction caused by the natural disasters. He was in Australia in 2022 when a volcano explosion and tsunami had devastating effects in Tonga, and he would experience economic hardship if he returned because Tonga has a poor economy and lack of resources and has relied on foreign aid to survive through the natural disasters occurring one after another.

24. Since filing his review application with the Tribunal, he has been provided an opportunity to provide all of the details of his protection claims. In response, the applicant has provided a number of copies of on-line news articles about various social and socio-economic issues relating to Tonga. The Tribunal accepts that the articles relates those issues just described, however does not accept that the hold any probative value in respect to satisfying the Tribunal that Australia has protection obligations to the applicant.

    THE REVIEW HEARING

25. By way of a background of the proceedings before the Tribunal, on 14 September 2023, the applicant lodged his review application with the Tribunal. Within the information he gave to the Tribunal, he provided his email address, however, did not provide a contact telephone number. The Tribunal was able to locate his telephone number within the material available.

26. On the same day he lodged his review application, the Tribunal acknowledged receiving the application and advised him 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 2314449 when you contact us.

27. On 22 September 2023, an email was dispatched to the applicant inviting him to attend an in-person hearing scheduled for 20 October 2023, commencing at 9:30am. Included within that email was a ‘response to hearing invitation’ form, along with instructions where he was asked to attend the Tribunal at least 30 minutes prior to the scheduled start time so that all preliminary matters could be attended to prior to the hearing commencing. Subsequently, on 3 October 2023, he advised the Tribunal that he would be attending the hearing, and he provided the completed response to hearing invitation form which he signed.  

28. On the morning of the hearing, the applicant did not appear at the Tribunal. Concerned that he had not arrived for the hearing, at 9:21am the Tribunal telephoned his mobile phone number. He did not answer the call and a message was left on his voice mail reminding him of the hearing. A further three attempts were made to telephone him at 9:22am, 9:26am and 9:36am, however he did not answer any of those calls. 

29. At 9:50am, an email was sent to his nominated email address asking, "Could you please urgently contact the tribunal on 07 3052 3000 in regards to your hearing scheduled at 9:30am." He had not responded to that email.

30. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with section 441A(5) of the Act; and several unsuccessful attempts were made on the morning of the hearing to engage with him.

31. When careful consideration if given to those circumstances as outlined above, the Tribunal finds that there has been no satisfactory reason provided by the applicant for his non-appearance at the scheduled hearing and the Tribunal has proceeded to make a decision in his absence.

    CONCLUSION AND REFUGEE FINDINGS

32. 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 Tonga, 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.[23]

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

33. 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.

34. 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.[24] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[25]

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

    [25]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.

35. Having regard to, and carefully considering all the facts, features and circumstances as outlined in these reasons, the Tribunal finds that the applicant is not a person in respect to whom Australia has protection obligations as defined in the Act.[26]

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

36. He has not claimed that he would be arbitrarily deprived of his life, or be the subject of the death penalty being carried out on him, or that he would be subjected to torture if he returned to Tonga. There is not a scintilla of evidence before the Tribunal to validate any claim he would suffer any of these forms of ‘significant harm’ as defined in the Act if he returned to Tonga.[27]

    [27]Migration Act 1958 (Cth), s 36(2A)(a)-(c).

37. At best, it is speculative on his behalf that because of the economic situation of Tonga, and the impact a natural disaster had on the everyday lives as of the citizens of Tonga, that his well-founded fear of returning to Tonga applied an onus on him being provided with protection in Australia.

38. As the High Court has determined in Minister for Immigration and Ethnic Affairs v Guo Rei Wong, mere speculation cannot establish a well-founded fear. A fear of persecution is not well founded if it is merely assumed or of it is mere speculation. The High Court went on to find:

    Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[28]

    [28]     MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG & ANOR (1997) 191 CLR 559, 572; CITING CHAN YEE KIN & ORS V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1989) 169 CLR 379, 397.

39. In determining that fear can be well-founded without any certainty, or even probability, or that it will be realised, the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs recognised the principle determined by the United States Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca that a statutory provision reflecting the relevant phrase in the Refugee Convention did not require the probability of persecution, and:[29]

    That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one.  One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place.[30]  

    [29]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 397.

    [30]Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 421, 431.

40. When applying those principles to the facts, circumstances and features of the applicant’s claims, the Tribunal does not accept that he is a refugee as defined in section 5H of the Act, and nor has he 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

1. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[31] the Tribunal has considered the alternative criterion.[32] 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 Tonga, there is a real risk that he will suffer significant harm as it is defined in the Act.[33]

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

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

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

2. 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 Tonga. 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.[34]

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

3. 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 Tonga 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

4. 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 in Tonga. 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

5. 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 Tonga, he will be exposed to a real risk of suffering significant harm.

   OVERALL CONCLUSION

6. 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

7. 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.

8. 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

9. 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.

   …