2317851 (Refugee)

[2024] AATA 939

2317851 (Refugee) [2024] AATA 939 (25 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2317851

COUNTRY OF REFERENCE:                   Kiribati

MEMBER:James Lambie

DATE:25 January 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 25 January 2024 at 12:10pm

CATCHWORDS
REFUGEE – protection visa – Kiribati – physical and emotional abuse by former partner – physical health – delay in applying for protection and multiple entries and departures – no additional information provided and consent to decision without hearing – country information – domestic violence, cultural taboos on reporting and encouragement of reconciliation rather than prosecution – police and community resources – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 866.211

CASES
BZADA v MIAC [2013] FCA 1062
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (FCA, NG994 of 1993, 11 August 1994)
Selvadurai v MIEA [1994] FCA 1105
Subramaniam v MIMA (Carr J,10 March 1998)
Subramaniam v MIMA (1998) VG310 of 1997
Zhang v RRT [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 review of a decision made by a delegate of the Minister for Home Affairs on 16 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 the Republic of Kiribati, applied for the visa on 16 August 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).

3. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 4 November 2023.

4. On 19 December 2023, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on this information alone. It invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in her case on 25 January 2024.  On 24 January 2024, the applicant responded to the invitation, advising that she would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear.

5. The applicant remained unrepresented throughout this review.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

8. 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: s 5H(1)(a). 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: s 5H(1)(b).Under s 5J(1), 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, 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. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The issue in this case is whether the applicant meets the refugee criterion and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

3. The applicant is a [age]-year-old Kiribati citizen.  She previously resided in [Town 1] in Kiribati. Her religion is [Church 1]. She is employed as [an Occupation 1] at [Employer 1]. She has previously undertaken [an] Apprenticeship in February 2019.

4. According to departmental records she has entered Australia multiple times since 2008. She was granted a 456 (Business Short Stay) visa on 3 December 2007. On 14 December 2007 she was granted a 988 (Maritime Crew) visa. On 19 June 2018 she was granted a Temporary Work (International Relations) (Subclass 403) visa. On 30 August 2021 she was granted a Temporary Activity (408) visa. On 17 November 2022 she was granted another Temporary Activity (408) visa. [Date] June 2023 is her latest date of arrival to Australia from [Country 1]. She lodged her protection visa application on 16 August 2023.

   Claims

5. The applicant’s claims are set out in the protection visa application and evidence contained in Department file [number]. The claims were summarised by the delegate of the Department as follows:

   ·She left her home country to work. She left her previous partner due to his infidelity. There are rumours in her home country that she did not return because she had a relationship in Australia.

   ·She experienced physical and emotional harm in her previous relationship

   ·She is unable to seek help as it would be considered a personal matter

   ·Moving within her country would not work as her home country is a little island

   ·She would die if she was returned because of harm she will experience and her current medical condition

   ·Women experience physical and emotional abuse in her home country

   ·There are no medical facilities which can help her with her current medical condition

   The applicant provided a discharge summary from [Hospital 1] dated 14 August 2019 which states that she was admitted for neurosurgery and a procedure was performed on 7 August 2019 involving [specified medical procedures]. The applicant provided an MRI report from Queensland Xray dated 17 March 2022 which states that the applicant’s medical history includes a [Condition 1] which was [operated on] in [Country 2] in 2017 and [operated on again] in [City 1] on 7 August 2019, and that the applicant has been [disabled] since childhood. The report stated that the [condition] has been [operated on] with reduced [specified result] compared to the MRI done in May 2019. The [condition] is unchanged in size and morphology compared to MRIs done in January and September 2020.

   Evidence presented prior to the hearing

6. The applicant produced to the Department of Home Affairs (the Department) the following documents:

   ·Her protection visa applications forms.

   ·Her passports issued [in] 2017 and [in] 20222. 

   ·Medical reports from [Hospital 1] dated 7 August 2019 and a report from Queensland Xray dated 17 March 2022.

7. The applicant produced to the Tribunal the following documents:

   ·A copy of the delegate’s decision.

   ·Copies of the medical reports from [Hospital 1] dated 7 August 2019 and a report from Queensland Xray dated 17 March 2022 previously provided to the Department.

Country of reference

1. The primary applicant claims to be citizens of the Republic of Kiribati. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Republic of Kiribati. is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

2. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

   Assessment of claims and evidence, and findings:

3. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face 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 of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

4. The Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

   As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

5. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

   However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]  Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

   [1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

   [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

6. The Tribunal has carefully considered the applicant’s claims as detailed in her application for a protection visa, both individually and cumulatively. The applicant consented to a decision on the papers, and she did not provide additional information in support of her claims (the medical reports she provided being identical to those provided to the delegate).

7. Without the benefit of a hearing, I am unable to be satisfied of the claims raised the applicant in her application, or how they are said to invoke Australia’s protection obligations. Her claims did not raise a fear of serious harm as defined in s.5J(4)(b) and s.5J(5) of the Act, or that a fear of harm was for one of the reasons in s.5J(1)(a) of the Act.  Had the applicant attended the hearing, I would have asked for further detail about her claims, affording her an opportunity to provide further information and to explain how her claims might relate to the refugee criteria.

8. On the material presented, the Tribunal has insufficient evidence as to:

   • the nature and extent of the physical and emotional abuse to which the applicant claimed to have been subjected by her former partner, and the time period over which that claimed abuse occurred;
   • the existence of the rumours of which she claimed to be the subject and how, when, and to what extent, they caused or may cause her to fear harm;
   • whether she made any request for assistance to the police or a domestic violence centre, and the nature of and reasons for any response to any such request;
   • the reason or reasons why police or community assistance would be inadequate, in view of the country information below;  and
   • the current status of her medical condition, in view of the most recent report indicating that the surgical procedure was successful, her condition was stable, and information available to the Tribunal to the effect that the condition is non-cancerous and responsive to the procedure which has been undertaken;
   • the inadequacy of medical facilities in Kiribati to deal with her condition.

9. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

   The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

10. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

11. As noted above, the applicant has entered Australia multiple times since 2008 and was granted a number of additional visas, only lodging the protection visa application on 16 August 2023.  Had she attended a hearing, the Tribunal would have queried her explanation for the delay and sought his submissions as to why the Tribunal should not take it as an indication that her claimed fear or harm is not genuine.

Country Information

1. The most recent country information available to the Tribunal which is relevant to the applicant is as follows:

   Women

   Rape and Domestic Violence: Rape of women and men is a crime, with a maximum penalty of life in prison, but sentences typically were much shorter. Domestic violence is a crime. The law provides for penalties of up to six months in prison for common assault and up to five years in prison for assault involving bodily harm. The Police investigated cases of rape. There were, however, no court trials following the closure of the courts due to the pandemic and the suspension of the Chief Justice.

   The government, in partnership with UN Women, the Secretariat of the Pacific Community Regional Rights Resource Team, and development partners, offered training for police, public prosecutors, health workers, social welfare workers, education officials, elected officials, and nongovernmental organization workers to implement the law effectively. Domestic violence, often exacerbated by chronic alcohol abuse, continued to be a serious problem. Cultural taboos on reporting rape and domestic abuse and police attitudes encouraging reconciliation rather than prosecution existed.

   The government continued implementing the Gender Equality and Women’s Development Policy 2019-2022 that prioritized the elimination of sexual and gender-based violence. The police force has a Domestic Violence and Sexual Offenses Unit whose officers participated in a capacity-building program that provided training in handling such cases. Police ran a 24-hour hotline for victims of sexual violence and domestic abuse. The government’s Strengthening Peaceful Villages program, a community-based intervention program launched in 2019, continued to engage most of the country’s population, which resided in South Tarawa. The Kiribati Women and Children Support Center maintained its support for women and children affected by violence, providing victims with counseling and referral services. The Support Center operated a second shelter for women and children on Kiritimati Island, the second most populated island in the country. The Ministry of Health operated a clinic at the main hospital in Tarawa for victims of domestic violence and sexual offenses

   Sexual Harassment: The law criminalizes sexual harassment and prescribes a fine for anyone found guilty of the offense. No harassment reports were known to have been filed with police.

   Reproductive Rights: There were no reports of coerced abortion or involuntary sterilization on the part of government authorities.

   There were no legal barriers or government policies that impeded access to sexual and reproductive health services. Conservative social and cultural attitudes inhibited access for some to the services.

   Access to contraception, as well as prenatal, obstetric, and postnatal care, was available from public health hospitals and centers, but health services were limited in outer islands. The Kiribati Family Health Association also offered mobile reproductive health clinic services, undertook public campaigns, and provided information and counseling on family planning, although cultural and religious influences remained barriers to access and utilization of services.

   The government provided sexual and reproductive health services, including emergency contraception, to survivors of sexual violence.

   Discrimination: The law prohibits discrimination based on gender in employment but not on other grounds (see section 7.d.); there were no reports of government enforcing the law. Women have equal access to education. Property ownership rights are generally the same for men and women, but land inheritance laws are patrilineal, and sons often inherited more land than daughters. The citizenship law contains some discriminatory provisions. For example, the foreign wife of a male citizen acquires citizenship automatically through the marriage, but the foreign husband of a female citizen does not. Mothers cannot confer nationality on their children. The government sought to address inequalities through the Gender Equality and Women’s Development Policy 2019-2022.[3]

   [3] United States Department of State, Country Reports on Human Rights Practices for 2022

1. The country information therefore suggests that, while there are cultural taboos on reporting domestic abuse in Kiribati, there appear to be robust police and community resources available.  The applicant’s claims do not engage reservations about the adequacy of these services concerns because there is no evidence of the abuse to which she claimed to have subjected or that she sought assistance in respect of it.

   Cumulative claims

2. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered her personal circumstances, the Tribunal finds that there is no real chance that she will suffer persecution by reason of her gender, or having been subjected to domestic or family violence, or having reason to fear her former partner, or by the inability of the police to protect her, or by reason of her medical condition, or for any other reason if he returns to Kiribati now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to Kiribati. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that he will suffer significant harm?

3. The Tribunal has considered the applicant’s claims under complementary protection.

4. The Tribunal is not satisfied on the available evidence that that the applicant’s claims to fear  violence or abuse at the hands of her former partner are genuinely held.  Even had the Tribunal been satisfied that her claims were genuine, it is not satisfied that means of state protection or redress would not be available to her.

5. The Tribunal is also not satisfied on the available evidence that her medical condition is not, manageable or treatable in Kiribati or that her condition would be adversely affected by her return to Kiribati.

6. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered her personal circumstances, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Kiribati now or in the reasonably foreseeable future.

   Conclusion: Refugee Criterion

7. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). her fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.

   Conclusion: Complementary Protection

8. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Kiribati that there is a real risk that he will suffer significant harm.

   Overall Conclusion

9. 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, she does not satisfy the criterion in s.36(2).

   DECISION

10. The Tribunal affirms the decision not to grant the applicants a protection visa.

    James Lambie
    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.

    …