2316058 (Refugee)

[2023] AATA 4837

2316058 (Refugee) [2023] AATA 4837 (12 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2316058

COUNTRY OF REFERENCE:                   Samoa

MEMBER:Wayne Pennell

DATE:12 December 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 12 December 2023 at 12:38pm

CATCHWORDS

REFUGEE – protection visa – Samoa – no Convention nexus – economic conditions – crime – delay in applying for protection – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 426, 441, 499
Migration Regulations 1994, Schedule 2

CASES

Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423      

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 October 2023.

2. The applicant, who claims to be a citizen of Samoa, 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 her being removed to Samoa, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act[3] and therefore she 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 3 September 2023.

   [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 on 14 November 2023, the Tribunal wrote to the applicant and advised her that it had considered all the material it had about her application but could not make a favourable decision on that information alone. The Tribunal invited her to give evidence and present arguments at a hearing on 12 December 2023. The applicant did not respond to that invitation and nor did she appear at the review hearing.

   [5]The applicant’s review application was filed with the Tribunal on 6 October 20.

   CRITERIA FOR A PROTECTION VISA

4. The measures for a protection visa are set out in the Act[6] 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.[7] 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.

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

   [7]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.[8]

   [8]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.[9] 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.[10]

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

   [10]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.[11]

   [11]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.[12]

   [12]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,[13] 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’).[14]

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

   [14]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.[15]

    [15]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.[16]

    [16]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.[17]

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

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

13. The applicant claims to be a citizen of Samoa and she provided a copy of her passport to the Department to authenticate this claim.[18] The Tribunal accepts the applicant’s identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Samoa is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[19]

    [18]applicant’s passport was issued [in] 2020.

    [19]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 she is not excluded from Australia’s protection obligations.[20]

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

    MANDATORY CONSIDERATIONS

15. In accordance with Ministerial Direction No. 84 made under the Act,[21] 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.

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

    MATTERS LEADING UP TO THE REVIEW HEARING

16. Since 2018, the applicant has been granted three separate Temporary [work visas]. The first work visa was granted on 15 June 2018 and it expired on 28 December 2018. Subject to the conditions of that first work visa, she arrived in Australia [in] June 2018 and returned to Samoa [in] December 2018. It appears that she was an unlawful non-citizen for a very short period of [number] days.

17. The second work visa was granted to her on 12 June 2019 and it expired on 10 January 2020. Subject to the conditions of that second work visa, she arrived in Australia [in] June 2019 and returned to Samoa [in] December 2019.

18. In respect to the applicant’s third work visa, that visa was granted to her on 12 October 2021 and was due to expire on 3 December 2024. Subject to the conditions of that visa, she arrived in Australia [in] December 2021.

19. The applicant lodged her application for a protection visa with the Department on 3 September 2023. The Tribunal notes that this is approximately 21 months after the last time she arrived in Australia [in] December 2021. The issue in respect to her delay in making an application are discussed later in these Reasons.

20. In her application, she claimed that she left Samoa for a new life environment that is safer with better economic opportunities because she was somewhat affected by the rising cost of living, with basic items being very expensive and her earning potential was limited. She considered that she would experience hardship if she returned to Samoa because the cost of living is high and there is a lot of crime including theft which she also described as ‘snatch cases’. She also claimed that she has to financially support her parents and siblings, and if she returned to Samoa, the authorities would not be able to protect her as there are so many complaints about the Government. She also claims that she cannot relocate within Samoa as there are no other places to go.

21. After receiving the applicant’s application, the Department wrote to her on 5 September 2023 and acknowledged her application. The Department took the opportunity to advise her that she should provide all additional information relating her claims. She did not provide any material or other evidence to support her claims.

22. On 6 October 2023, the delegate made a decision to refuse her application, and appropriately advised the applicant of that decision. The applicant then lodged her review application with the Tribunal.

23. On 20 October 2023, the Tribunal dispatched an email to the applicant’s nominated email address enclosing a letter of acknowledgement and advised her that it was important that she should tell the Tribunal immediately if she changed her contact details (such as your residential address, mailing address, telephone number, fax number or email address); and tell the Tribunal immediately if her personal circumstances change. 

24. On 14 November 2023, the Tribunal wrote to the applicant advising that it had considered all the material it had about her application but could not make a favourable decision on that information alone. The Tribunal invited her to give evidence and present arguments at a hearing on 12 December 2023. The invitation stated that if she did not attend the hearing, the Tribunal may make a decision on the case without further notice. The Tribunal particularly notes that she has never responded to that invitation.

25. Leading up to the scheduled review hearing, the Tribunal sent SMS reminders to the applicant about the hearing. The first SMS reminder was sent on 5 December 2023, which is five business days prior to the hearing.[22] That SMS reminder outlined:

    Reminder - Your AAT hearing is on 12/12/23. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

    [22]SMS hearing reminder was sent to the applicant’s mobile [number] at 11:01:16am.

26. The second SMS reminder was sent on 11 December 2023, which is one business day prior to the hearing.[23] That SMS reminder repeated the earlier message sent on 5 December 2023.

    [23]SMS hearing reminder was sent to the applicant’s mobile [number] at 11:01:15am.

27. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The Tribunal called the applicant’s nominated mobile phone number on three occasions on the morning of the hearing, with those calls being  made at 8:50am, 8:56am and 9:06am. Notwithstanding a voice mail message being left on her answering service to remind her about the hearing and to contact the Tribunal, those efforts to contact her were unsuccessful; subsequently, the hearing was cancelled.

28. 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 she has not returned the invitation to the Tribunal. As indicated above in these Reasons, two separate SMS reminders were sent to the applicant’s mobile telephone about the hearing and the Tribunal tried on three occasions to telephone her on the morning of the hearing.

29. In those circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    APPLICANT’S BACKGROUND AND CLAIMS

30. Because the applicant has not engaged with the Tribunal, very little is known about her background except that she is from Samoa. Within her application for a protection visa, she claimed that she cannot return to Samoa because of economic hardship and that she cannot be protected in Samoa from crime within the Samoan society.

31. The applicant did not provide a scintilla of tangible or probative evidence to support her claims, and the only real proactive activity she has engaged in throughout this process is when she lodged her protection visa application and her review application. Apart from lodging those applications, she did not otherwise engage with the Department or the Tribunal.

    DELAY

32. The Tribunal notes the applicant made the first of her three trips to Australia [in] June 2018, with her third and last trip taking place [in] December 2021. It was not until 3 September 2023 that she lodged her application for a protection visa, which is over five years since she first arrived in Australia, and about 21 months after she last arrived. The Tribunal finds that both of those time frames is a substantial period of time. 

33. When considering the delay between her arrival in Australia to when she made her application for a protection visa, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.

34. Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.  A significant delay is not behaviour indicative of someone who fears for their physical safety[24] and the Tribunal particularly notes that the applicant has provided no evidence or offered any explanation as to the extraordinary delay in making her application.

    [24]     ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

35. The Tribunal has very carefully considered the significant period of delay in making the application for a protection visa and finds that the noteworthy delay casts significant doubt on the genuineness of the applicant’s claims that she has a well-founded fear of persecution if she was to return to Samoa. The Tribunal also finds that the delay in lodging her protection visa application adds weight to the finding that her claims do not appear to reflect the reality of her circumstances.

    CONCLUSION AND REFUGEE FINDINGS

36. 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 Samoa, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[25]

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

37. The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims she 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.

38. The Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her 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.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]

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

    [27]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.

    Economic hardship

39. For the applicant to satisfy the criterion for a protection visa as provided in section 36(2)(a) of the Act, she must be a non-citizen in Australia in respect of whom a decision maker is satisfied Australia has protection obligations because the person is a refugee. A ‘refugee’, as defined in section 5H(1) of the Act, is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution.

40. The meaning of ‘well-founded fear of persecution’ is set out in section 5J of the Act and includes a requirement in section 5J(1)(a) of the Act that the ‘person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’.

41. The claims as explained by the applicant in her application is that she will experience economic hardship. Economic hardship does not relate to any of the reasons provided in section 5J(1)(a) of the Act and there is no other information before the Tribunal to suggest that the applicant will be subjected to harm upon her return to Samoa for one or more of those reasons.

1. When careful consideration is given to her claims, and the criteria as provided under the Act to be considered so far as a determination that she is a refugee, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as she does not fear being persecuted for reasons of her race, religion, nationality, membership of a particular social group or political opinion as required by section 5J(1)(a) of the Act.

   State protection

2. The applicant claims that she cannot return to Samoa because of the crime rate. It is noted by the Tribunal that she has not provided any evidence to substantiate this claim.

3. Available to the Tribunal is reliable and credible country information about Samoa that outlines that the Samoa Police Service, which consists of about 500 officers, is responsible for the enforcement of law and order, the preservation of peace, and the protection of life and property. The Samoa Police Service has also provided officers for regional and international peacekeeping efforts.[28]

   [28]Human Rights in the Pacific: A Situational Analysis, Pacific Community and the United Nations Office of the High Commissioner for Human Rights (UNOHCHR), 15 September 2016, page 107.

4. In its 2022 country information report on human rights in Samoa, the United States Department of State reported that the national police, under the Ministry of Police, Prisons, and Correction Services, maintains internal security. Civilian authorities maintained effective control over those security forces and there were no reports that members of the security forces committed abuses.[29]

   [29]United States Department of State Country Reports on Human Rights Practices for 2022, Samoa, 20 March 2023, page 1.

5. Other credible sources of country information from the United Nations Human Rights Council shows that while Samoa does not have a standing army, the Samoa Police Service is responsible for the safety and security of Samoa and its people from internal and external security threats.[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, page 206.

6. The United States Overseas Security Advisory Council reported that as of October 2021, the professionalism of the Samoan police force was above average in comparison with neighbouring Pacific islands. Local chiefs deal with minor crimes; and if the crime is severe, local magistrates will call on assistance from central police authorities.[31]

   [31]Samoa Country Security Report 9 June 2023, Overseas Security Advisory Council (OSAC), 09 June 2023.

7. When careful consideration is given to the country information, the Tribunal is satisfied that the applicant can be adequately protected by the Samoan authorities from crime within that country. Therefore, having assessed all of the facts, circumstances and features of the applicant’s claims, along with the country information, the Tribunal is satisfied that there are effective protection measures, as defined in section 5LA of the Act, available to the applicant in Samoa and therefore she does not have a well-founded fear of persecution under section 5J(2) of the Act.

   COMPLEMENTARY PROTECTION CONSIDERATIONS

8. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[32] the Tribunal has considered the alternative criterion.[33] 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 the applicant being removed to Samoa, there is a real risk that she will suffer significant harm as it is defined in the Act.[34]

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

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

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

9. 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 she claims if she returned to Samoa. 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.[35]

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

10. Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returns to Samoa now or in the reasonably foreseeable future she will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to torture or to cruel or inhuman treatment or punishment, nor will she be subjected to degrading treatment or punishment.

    CONCLUSION: REFUGEE CRITERION

11. 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 her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

12. 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 her being removed from Australia to Samoa, she will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

13. 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

14. 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 she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

15. 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, she does not satisfy the criteria in section 36(2) of the Act.

    DECISION

16. 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

    …

    (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.

    …