2316908 (Refugee)

[2024] AATA 549

2316908 (Refugee) [2024] AATA 549 (23 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2316908

COUNTRY OF REFERENCE:                   East Timor

MEMBER:Mia Bailey

DATE:23 January 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 23 January 2024 at 8:47am

CATCHWORDS
REFUGEE – protection visa – East Timor – financial circumstances – unable to get job, and borrowed money from neighbours and acquaintances – threats to family but no harm – vague and inconsistent claims and evidence – claims of being beaten and wife running away conceded to be incorrect – delay in applying for protection – work, marriage and pregnancy – country information – real chance of being unable to secure employment due to economic conditions and not for refugee criteria – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), (4), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZBQJ v MIMIA [2005] FCA 143
SZIGC v MIAC [2007] FCA 1725
SZSPE v MIBP [2013] FCCA 1989; [2014] FCA 267
SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34

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 review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 3 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Timor-Leste (East Timor), applied for the visa on 1 September 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.

3. The applicant appeared before the Tribunal on 22 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she 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. Relevant provisions of the Act are extracted in the attachment to this decision.

5. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

   
   

   s 36(2)(aa) of the Act. 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.[1] For the following reasons, I have concluded that the decision under review should be affirmed.

   [1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510

   Background and receiving country

7. The applicant is a [Age]-year-old female from [City 1], [Municipality], East Timor. She arrived in Australia [in] March 2022 on a [Specified visa].

8. The applicant provided a copy of the biodata page of her East Timor passport as part of her protection visa application. The delegate accepted that the applicant is a citizen of East Timor and there is no information before me to the contrary. I find that the applicant is a citizen of East Timor, and that East Timor is her receiving country for the purposes of assessing her claims for protection.

   Evidence before the delegate

9. The applicant’s protection visa application includes the following relevant information:

   i.She was born and resided in [City 1]; is of Timorese ethnicity and her religion is Christian.

   ii.She completed high school in [City 1] and did not undertake any employment in East Timor.

   iii.Regarding why she left East Timor, the applicant stated, ‘I follow the government program to work in Australia. This is the only way I have to escape myself from the many problems in Timor Leste. My problem is such a bad financial problem. I owe a lot to my neighbours and also to many of my acquaintances. I was threatened and harmed when I couldn’t return the money.’

   iv.Regarding whether she had experienced harm in East Timor, the applicant stated, ‘I am going through many trouble in my country. I was beaten and beaten as a result of being in debt. My wife run away because of the debt I did. Now I don’t want to go through it anymore.’ If she returns to East Timor she fears ‘consequences from the debt I did’ and that she will be threatened and beaten.

10. The applicant was not invited to attend an interview with the delegate. The delegate did not undertake an assessment of the credibility of the applicant’s claims. Regarding the loan-related claims, the delegate found that state protection would be available to the applicant such that there was no well-founded fear of persecution and no real risk of significant harm. Regarding claims of general economic hardship, the delegate found this to not be for any of the reasons in s 5J(1)(a) and to not amount to significant harm, as defined in s 36(2A), for the purposes of the complementary protection criterion.

    Evidence before the Tribunal

11. At the hearing, the applicant provided evidence regarding her personal and family background. She lived in [City 1] with her parents and siblings. She has [brothers and sisters]; all of whom live in [City 1] except one older brother who lives in [City 2] with his wife. Her parents own some land which they primarily use for subsistence farming and sometimes they sell produce at the market. Asked what she did between finishing high school and coming to Australia, the applicant stated that she ‘did nothing’; she lived at home and helped her family with farming. Following her arrival in Australia in March 2022, she has been working on [workplaces] [doing a job task]. About one year ago she married her husband, who is also from [City 1]; they met in [Town] while undertaking [work]. Her husband is currently working on a [workplace] in another area of regional Queensland. She is expecting their child in [2024].

12. The applicant stated that she completed the protection visa application herself and did not receive any assistance. She confirmed that she recalled and agreed with the information recorded in the application. Asked why she is seeking protection in Australia, she stated that life is difficult in East Timor; it is very hard to get a job and there is no other way to earn money to help her family. She also referred to ‘discrimination and oppression’ regarding employment. Asked what she means by this, the applicant stated that if you only have a senior high school qualification, you can’t get a job. Asked whether there is any other reason she fears returning to East Timor, the applicant stated no.

13. I raised with the applicant that in her protection visa application she claims to fear returning to East Timor because of outstanding debts to neighbours and acquaintances. Asked whether this is correct, the applicant initially appeared surprised and unsure but then agreed that it was correct. She stated that her mother had borrowed money from a neighbour to fund the applicant’s travel to Australia. When asked for further details, the applicant stated that the amount of the loan was $500 (USD); her family borrowed this amount just before her departure for Australia and she has repaid $200 by sending money to her sister who passed the money onto the neighbour. The applicant was unable to recall any details of when she sent the repayment/s. Asked what the neighbour does for work, she stated that he runs a small kiosk selling food. When asked how her neighbour would have access to $500 to loan to her family, the applicant responded that she doesn’t know.

14. Asked why she hasn’t repaid the remaining $300, the applicant stated that she doesn’t earn enough to repay it and look after her family, and she can’t work because she is pregnant. She stopped working in July 2023 and confirmed that she was sending money to her family in East Timor while she was working but was unable to recall any details of how much she sent. Asked whether her family have experienced any problems because of the outstanding debt, the applicant stated that if the money is not repaid, the neighbour will ‘kill or beat’. She claimed that her neighbour has made threats to her family, and they have told the applicant during phone calls that they are ‘concerned and afraid’. Asked when these threats were made, the applicant stated, ‘a long time ago’ and was unable to provide any further details. The applicant confirmed that none of her family members have been harmed. I discussed with the applicant that I may not find it credible that she would not have repaid the outstanding $300 if her family had been threatened and were in fear for their safety, considering that she had been working in Australia for over one year. The applicant did not offer any comment or response.

15. I discussed with the applicant that her protection visa application states that ‘my wife ran away because of the debt’ and she had been beaten because of the debt. Asked whether these claims are correct, she appeared surprised and stated they are not correct. When asked why these claims appear in her protection visa application, the applicant responded that she doesn’t know; she confirmed that she received no assistance with the application but suggested they may be a result of her difficulties with English. I raised with the applicant that I may not accept that limitations with her English language sufficiently explain inconsistencies of this nature and this may undermine the credibility of her claims regarding an outstanding loan. The applicant did not offer any comment or response.

16. I asked the applicant why she had not applied for protection earlier than September 2023, being approximately 18 months after her arrival in Australia, if she genuinely feared harm in East Timor due to an outstanding loan. She responded that she didn’t know how to apply for a protection visa; she only came to learn about this through Timorese friends who have also applied for protection. I discussed with the applicant that I may take into account her delay in applying for protection when considering the credibility of her claims regarding an outstanding loan.

17. Regarding the applicant’s claims to fear economic hardship, I explained the concepts of persecution, serious harm, and significant harm and noted that I may find her claims to not amount to harm of that nature. I discussed with the applicant that while I accept that there are economic problems and challenges in East Timor, those conditions apply to all persons in the country and would generally not satisfy the requirements of persecution or significant harm. Asked whether there was anything else that she wished to tell me about why she is claiming protection, the applicant stated that, if possible, she would like to stay in Australia for a longer period of time to earn money for her family and to support herself.

    Factual findings and protection obligations assessment

18. In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. In assessing the credibility of the applicant’s claims, I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility.[2] I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant.  Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]

    Loan claims

    [2] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015

    [3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.

19. As discussed with the applicant, I have concerns regarding the credibility of her claims to fear harm due to an outstanding debt of $300 to a neighbour. For the following reasons, I do not accept these claims as credible:

    i.When asked at the hearing about her reasons for claiming protection, the applicant initially made no mention of this claim; only referring to difficulties in securing employment in East Timor. It was only when the claim as described in her protection visa application was discussed with the applicant that she raised the claim to have loaned money from a neighbour. If she genuinely feared harm for this reason, I would expect her to raise this independently when asked for her reasons for seeking protection.

    ii.As outlined above, there are significant inconsistencies between the protection visa application and the applicant’s evidence at the hearing regarding the loan claims. The applicant confirmed at the hearing that the references to being beaten and her ‘wife’ running away because of the debt are not correct. However, other than raising her English language ability, she was unable to explain why these errors occurred. I accept that not all inconsistencies in evidence indicate a lack of credibility and that some errors or inconsistencies may be reasonably explained by an applicant’s language skills. However, I find these inconsistencies to be significant and am not convinced that they are due to limitations with the applicant’s English. I find this to generally undermine the credibility of the applicant’s claims relating to an outstanding loan. 

    iii.The applicant’s oral evidence regarding the loan repayment and threats toward her family members was vague and lacking in detail. She could not provide any details of when she sent payments to her sister or when her family was threatened by the neighbour, other than stating it was ‘a long time ago’. I accept that a protection visa applicant may genuinely experience difficulty in recalling dates, particularly where there has been a significant lapse of time. However, these events occurred following the applicant’s arrival in Australia, meaning they occurred less than 2 years ago, and are claimed to involve threats of harm toward her family. In these circumstances I find it reasonable to expect the applicant to recollect approximate timeframes for these incidents.

    iv.While she was unable to provide any details, the applicant confirmed that she was earning income in Australia for over one year and that she sent money to her family in East Timor during this period. In these circumstances, I do not find it credible that her family would be unable to repay an amount of $300 if they were being genuinely threatened with harm from a neighbour.   

    v.While I have not given it significant weight, I find the applicant’s delay in applying for protection to contribute to the credibility concerns discussed above. Due to the applicant’s inability to provide details of the timeframe of any loan repayments or threats to her family, it is not clear when she may have developed a fear of harm from her neighbour. According to the applicant’s oral evidence, the threats occurred ‘a long time ago’. However, she did not apply for protection until September 2023, approximately 18 months after her arrival in Australia.     

20. For the above reasons, I do not accept that the applicant or her family borrowed any money from a neighbour or anyone else in East Timor. It follows that I do not accept that the applicant or any of her family members have been harmed or threatened with harm in connection with non-repayment of a loan. I therefore find that the applicant does not face a real chance of persecution or a real risk of significant harm for this reason if she were to return to East Timor.

    Economic hardship claims

21. I accept that the applicant has previously experienced difficulty in securing employment in East Timor. I accept that since completing high school, she was not formally employed and helped her family with farming their land. I accept that she is concerned that she will be unable to find work if she returns to East Timor.

22. A 2021 United Nations report indicates that 46 per cent of the population of East Timor are multidimensionally poor and a significant majority rely on small-scale subsistence farming.   The poverty rate is higher in rural areas. There is low labour market participation, with only 45.2 per cent of the working-age population employed in the market economy as of March 2021. This does not include those engaged in subsistence agriculture, which would raise the figure to 61.1 per cent. Most of those engaged in the market economy (86.3%) are self-employed or contributing family workers, and many (over 70%) are engaged in production and sale of agricultural products. Many jobs are characterised by informal work arrangements, insecure employment, unstable and inadequate earnings and low productivity. Women are employed at a lower rate. The overall unemployment rate is 11.9 per cent, but this rises to 22.1 per cent for people aged 25-29 years, likely related to higher levels of job losses among this group because of COVID-19.[5]

    [5] United Nations in Timor-Leste, Socio-Economic Impact Assessment of COVID-19 in Timor-Leste, 2021  

23. Considering the above country information and the applicant’s circumstances as a woman with a young child who would be returning to [City 1], I find that there is a real chance that she would be unable to secure employment in the formal sector and her options are likely to be limited to subsistence farming on her family’s land. However, I find that any disadvantage the applicant may experience on return to East Timor due to general economic conditions to not be for any of the reasons in s 5J(1)(a) of the Act. The courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[6] The economic conditions faced by the applicant in East Timor would apply to all citizens of East Timor. It follows that the requirements in s 5J(4)(a) and s 5J(4)(c); that a

    
    

    s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct; are not satisfied.

    [6] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429

1. Further, I find that any economic disadvantage the applicant may experience on return to East Timor does not amount to serious harm and therefore the requirement in s 5J(4)(b) is not satisfied. While serious harm can involve significant economic hardship, this must threaten a person’s capacity to subsist. The courts have found this to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[7] I find that the applicant did not previously experience significant economic hardship while living with her family in [City 1] and undertaking subsistence agriculture and I find that she would not experience such harm in the reasonably foreseeable future if she were to return to [City 1]. I also note that the applicant is now married and would have the financial support of her husband.

   [7] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725

2. I therefore find that the applicant does not have a well-founded fear of persecution in East Timor for this reason. I have considered these claims under the complementary protection criterion in

   
   

   s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to East Timor, she will suffer significant harm. I note that ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

3. I find that any economic disadvantage the applicant may experience on return to East Timor does not amount to any of the types of significant harm defined in s 36(2A). In addition, the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[8] Any disadvantage that the applicant may experience due to general economic conditions in East Timor would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions.

   [8] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40])

4. The applicant has not claimed to fear harm for any other reason if she returns to East Timor and I find that no other protection claims arise on the accepted facts.

   Conclusion

5. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). 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

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

   Mia Bailey
   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.

   …