2318134 (Refugee)

[2024] AATA 395

2318134 (Refugee) [2024] AATA 395 (3 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2318134

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Rodger Shanahan

DATE:3 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 03 January 2024 at 9:33am

CATCHWORDS

REFUGEE – protection visa – Tonga – property ownership dispute – threat of imprisonment – natural disasters – earthquake – fear of further seismic events – delay in applying for protection – decision under review affirmed

LEGISLATION

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

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 24 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 Tonga, applied for the visa on 24 August 2023.

3. The applicant appeared before the Tribunal on 8 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga 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.

5. 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.

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: 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).

7. 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.

8. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is 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 he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. 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.

   CLAIMS AND EVIDENCE

   Protection Visa Application

10. The applicant provided the following responses to questions in his protection visa application:

    a.Why did you leave Tonga: I left Tonga to come to Australia for employment purposes. In May 2016 I arrived to undertake seasonal work. My claims for protection only arose in June 2023 when an earthquake hit Tonga affecting my home town, my property and family;

    b.Did you experience harm in Tonga: No;

    c.Did you try to relocate and if not, why not: No. The applicant did not experience harm in Tonga prior to his departure as his claims for protection relate to the recent earthquake that affected [island] in Tonga in June 2023;

    d.What will happen to you if you return to Tonga: I am deeply concerned about the ongoing seismic risks in Tonga. Having experienced the destructive earthquakes that led to the destruction of my family home, I fear the unpredictability of future earthquakes and the potential harm they could cause. My safety and well-being are at risk due to the possibility of further seismic events, which could result in injuries, loss of shelter, and disruption of essential services. One of the most significant reasons for my apprehension about returning to Tonga is the legal and financial challenges related to the property ownership issue. My father had passed away, leaving the family home in my name. Authorities are now pursuing me for payment related to the property, and I believe that this pursuit could lead to severe consequences if I were to return. This could include legal action, fines, or other forms of penalties that could further compound my challenges. My fear of returning is driven by the belief that I would face negative legal consequences. I worry that legal action could be taken against me for non-payment of the property, which might result in court proceedings, fines, or even potential imprisonment. This uncertainty about the legal implications of my situation add to my overall anxiety and reluctance to go back. The potential for legal consequences is closely tied to the unresolved property ownership issues. Returning to Tonga could mean that I have to navigate complex legal processes, deal with property disputes, and potentially pay substantial sums of money to settle the property matter. This financial burden is a significant concern for me, especially considering the challenges I'm already facing due to the earthquakes;

    e.Do you think you will be harmed if you return to Tonga: Yes. My perception of harm primarily revolves around legal consequences and financial burdens that I might face upon returning to Tonga. I fear the possibility of legal actions, court proceedings, and fines due to the unresolved property ownership issue and potential non-payment of the property. These legal consequences could have a profound negative impact on my life, potentially leading to a loss of financial resources, personal assets, and even the threat of imprisonment. While the harm is not physical, my fear of mistreatment is related to the emotional and psychological distress I might endure upon my return. The uncertainty surrounding the legal situation, property disputes, and potential legal actions could cause immense stress, anxiety, and mental anguish. The emotional toll of facing legal challenges and the loss of my family home could significantly impact my well-being. The harm or mistreatment I anticipate is not necessarily caused by specific individuals or groups intentionally seeking to harm me. Instead, it arises from the combination of legal complexities, property disputes, and the consequences of my father's passing. The harm or mistreatment I fear is not driven by malicious intent, but rather by the circumstances surrounding my father's passing, the property ownership issue, and the destruction of my home. My perception of potential harm and mistreatment creates a sense of vulnerability and insecurity;

    f.Can and will the authorities in Tonga protect the applicant if he returns: No. My perception of the authorities' inability to protect me upon returning to Tonga is tied to my belief that the authorities are more focused on property-related matters, specifically the pursuit of payment for the property. I feel that the authorities prioritize the resolution of legal and financial issues over ensuring the safety, well-being, and rights of individuals who are facing challenges arising from natural disasters and personal circumstances. My doubts stem from the reality that local authorities often have limited resources, particularly in the aftermath of a natural disaster. In such situations, the authorities may be primarily concerned with disaster response, public safety, and the management of emergency situations. This could lead to a lack of attention and resources directed toward the specific needs of individuals dealing with legal complexities and personal difficulties. My scepticism also arises from the complex nature of the legal and property issues I am facing. Property ownership disputes and inheritance matters can be intricate and time-consuming to address. I believe that the authorities, who may lack the expertise in property and inheritance law, might struggle to effectively resolve these issues and protect my rights. In cases where communication networks are disrupted due to natural disasters, individuals might struggle to access relevant information about legal processes, their rights, and available resources. I am concerned that I won't receive clear and accurate guidance from the authorities, further undermining my confidence in the authorities' ability to protect me. I feel that vulnerable individuals, especially those facing legal challenges and personal hardships, are not receiving sufficient attention from the authorities. This perception leads to my doubts about the authorities' commitment to addressing my specific needs and ensuring my well-being. As a result of these doubts, I fear that returning to Tonga could expose me to a situation where my concerns about safety, well-being, and legal protection are not adequately addressed. I am concerned that my rights could be overlooked in favor of larger-scale disaster response and property-related priorities; and

    g.Will you be able to relocate: No. My belief that I cannot relocate within Tonga to escape harm is closely tied to the unresolved legal issues and property ownership dispute that I am facing. Regardless of where I move within the country, the legal matters related to my family home and the pursuit of payment by authorities might continue to affect me. The legal issues could potentially follow me to a new location, making it challenging to find a safe and stable environment. Even if I relocate to a different area within Tonga, I might still be subject to legal actions, court proceedings, and potential financial penalties related to the property ownership issue. My fears of facing legal consequences and potential harm would persist, regardless of my physical location within the country. My concerns about relocating within Tonga are further heightened by the ongoing seismic activity that affects various regions of the country. Earthquakes have the potential to strike different parts of Tonga, and no area can be guaranteed to be completely free from the risk of seismic events. This ongoing threat of earthquakes and their associated hazards, including structural damage and disruption of essential services, poses a risk to my safety and well-being regardless of my location. The combination of legal uncertainties and ongoing seismic risks impact my decision-making process. The stress and anxiety associated with these challenges affect my ability to make sound judgments about where to relocate and how to best ensure my safety. My overall well-being could be compromised by the persistent worries about my legal situation and the seismic threats. Given the complexities of my situation, I have limited viable options for relocating within Tonga that can provide the safety and stability I seek. Navigating both legal issues and seismic risks narrows down the available choices, making it difficult to find a suitable place to relocate that addresses all of my concerns.

    Additional Information Requested

11. On 23 November the applicant was sent a letter by the Tribunal requesting that he provide the following information by 7 December:

    a.Copies of all land title documents, including a link to any online record of same,

    b.All correspondence related to authorities pursuing payment from the applicant;

    c.Legal advice that you have sought and received from Tongan legal firms in relation to this matter; and

    d.Copy of any home insurance taken out on the property.

12. No reply was received to this letter.

    AAT Hearing

13. Asked if he knew everything in his protection visa application and that it was true and correct, he said that he did. He filled it out with a friend’s help – he dictated to her and she wrote it. He was asked about the letter sent to him prior to the hearing requesting certain information and that no response had been received. He said that his partner had uploaded all the information required.

14. He asked if it related to medical documents, and he was told it wasn’t and what information he was to provide was repeated to him. He was told that the letter was sent to the address he asked correspondence to be sent to. He said he didn’t know anything about this and who it was sent to – he was again told that it was sent to the address he provided. He said the last he heard was his support person telling him that his application was refused and he had to attend the Tribunal. He said he had no idea of what was required. He was told that he had no representative so the responsibility for addressing correspondence sent to his nominated address rested with him.

15. Asked what serious harm he feared if he returned to Tonga, he claimed that the only issue was that all his family was in Australia and his partner had medical issues and needed care and he provided it. It was told to him that this had nothing to do with his claim, and he needed to say what would happen to him in Tonga. He claimed that he had a home that was destroyed by the natural disasters so he had nowhere to stay in Tonga and he wanted to stay in Australia to earn money to go to Tonga and build a house.

16. Asked if he would be harmed by anyone in Tonga, he claimed that the medical facilities weren’t great in Tonga and he had rugby injuries and these couldn’t be treated well in Tonga. He was asked if he knew what was written in his protection visa application and he said that he did. He was asked what was written and he said that there was a partner visa that was started and then he said there was something about his home in Tonga. Asked again if he knew what was written in his protection visa application, he said that he didn’t.

17. It was put to him that he claimed he had told a support person what to write and she wrote it. He was asked if he was now saying that she wrote it without his input, and he claimed that she told him how to apply and they would need to apply to the Tribunal. He was asked again if he knew what the claim was that he had submitted to the Tribunal, and he stated that his partner and support person did the application. Asked again if he knew what was in his application, he said that after hearing what the member said he understood what a protection visa means. Asked again if he knew what claim he had made, he said he did.

18. Asked what that claim was and what had been written down, he said he was asking for a chance to stay in Australia and the medical treatment he needed was better here. He was told there was no mention of this in his claim. It was put to him that the Tribunal had a concern that he had no idea what was in his claim as someone else had written it. He agreed that his partner and support person wrote it – he said that sometimes he forgot things.

19. Asked if he had any legal disputes in Tonga, he said that he didn’t. Asked if his parents were alive, he said his mother was alive but his father died (in 2019). Asked who owned the home in Tonga, he said it should be his as he was the eldest child. Asked if he knew it was his, he said that his sister was told to transfer the title to the applicant. Asked if this had been done, he said that it had been completed and she sent a photo of the home. His mother lived in [Country 1].

20. His property was destroyed in 2017 he believed. The house was old and rotten – it was just standing and was now unliveable. He came to Australia in 2016 (after being here in 2015 and returning to Tonga). Asked why he waited until 2023 to apply for protection, he said that since he arrived he hadn’t planned to stay but he met his partner and they applied for a partner visa but that wasn’t successful so they applied for this visa.

21. It was put to him that his written claim was different from what he said today. In the claim he said the house was destroyed in 2023, that there were complex property disputes about his property in Tonga. The Tribunal was concerned that he had no idea what was in his claim because someone else wrote it, and the reason that the information requested hadn’t been provided was because it didn’t exist.

22. The Tribunal was concerned that he wanted to stay in Australia for personal reasons but he had nothing to fear in Tonga and could return tomorrow and there would be accommodation available for him if he were to return. Asked if he had any comments regarding what the Tribunal had said, he claimed that he planned to return to Tonga but it wasn’t possible to go back to his house. He had land in Tonga and he wanted to work in Australia and earn money to build a house.

23. It was put to him that there was plenty of current and former rugby players in Tonga so they would be well capable of dealing with the normal range of rugby issues in the country. He said that he wanted some time in Australia so he could earn money and build a house on return to Tonga. He could squeeze into a relative’s house there but there was nothing like one’s own home.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The applicant last arrived in Australia in May 2016 as part of the seasonal worker program. He applied for protection on 24 August 2023. I have seen a copy of his passport and I am satisfied that he is a Tongan national.

25. The applicant is [an age] year-old male who claimed that if he returned to Tonga he would be subject to seismic events and legal issues relating to authorities wanting payment from him for a property he inherited from his father.

26. In considering an applicant’s account, undue weight should not be placed on some omission or confusion to conclude that a person is not telling the truth. Nor can significant embellishments or inconsistencies be lightly dismissed. The Tribunal is not required to uncritically accept any or all of the claims made by an applicant.

27. I found the applicant’s claims to be vague, inconsistent and written by someone other than himself without his full knowledge of what the claims actually were. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness and that he fabricated his claim in order to be granted a protection visa.

    Credibility

1. The applicant changed his claim regarding what he knew was written on his application during the course of the hearing. At the beginning he stated that he knew what was written in his protection visa application and that it was true and correct. He claimed to have dictated the contents to a friend who wrote it down. Later in the hearing he variously said that he did and didn’t know what was written in his application, and then that his partner and support person wrote his application for him.

2. It was apparent from the questions asked of him and what he presented to the Tribunal that he was not the author of the protection visa application, or that he had much idea what was written on his behalf.

   Property Dispute

3. I do not accept that the applicant is involved in a property dispute with the Tongan government regarding payment for the family house that he inherited but that was subsequently destroyed in the 2023 earthquake. Prior to the hearing the applicant was asked to provide copies of the title deed to the house, correspondence relating to the pursuit of payment from the applicant by the Tongan authorities, and legal advice he had sought regarding the issue and any home insurance documents.

4. No reply was received to the letter. Although he claimed that he had no idea that the Tribunal required this, the request was sent to the address he had provided and other correspondence (such as the hearing invitation) had been sent to this address and actioned. I also note that the applicant stated that he had no legal disputes in Tonga even though his written claim said that he did, and indeed this was a central feature of his protection claim.

5. I also note that the written application claimed that his house was destroyed in the 2023 earthquake, yet he claimed at hearing that the house was destroyed in 2017. I have taken into account some photos sent by the applicant prior to the hearing that he claims are of the house, however there is nothing to indicate that the house is owned by him, or when or where in Tonga the photos were taken. I can therefore lend them no weight.

   Other Issues

6. The applicant claimed in his written application that he would be subject to seismic events in Tonga, however this was not raised at hearing. While seismic events do occur, their effects are not persecutory within the meaning set out in s 5J of the Act. Regardless, the applicant also stated that he had returned to Tonga once in 2015 and fully intended to return to Tonga after earning enough money in Australia to build a home. This does not indicate that the applicant fears serious harm on return to Tonga – indeed, the opposite is true.

7. He also claimed that he had rugby injuries that couldn’t be treated well in Tonga. He provided no medical evidence relating to such injuries or why they could not be treated in Tonga or what treatment he was undergoing in Australia, nor country information that would indicate Tongan medical facilities could not treat the injury he claimed to have sustained. Based on the evidence (or lack thereof) that he provided in support of this claim, I am not satisfied that the claimed lower level of medical treatment offered in Tonga means that he faces a real risk of serious harm on return to Tonga. 

8. I also note the delay in applying for protection. Despite claiming that his house was destroyed in 2017, that his rugby injuries couldn’t be treated in Tonga and that he feared the effects of seismic events in Tonga, he didn’t apply for protection until seven years after arriving in Australia. He stated that he hadn’t planned to stay however had met his partner and they were unsuccessful in applying for a partner visa however once they weren’t successful he then applied for a protection visa. The applicant’s motivation for applying for a protection visa, as expressed to the Tribunal, appeared to be motivated by a desire to earn money in Australia so he could then return to Tonga, which does not indicate any fear of serious harm awaiting the applicant on return to Tonga.

9. As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and her claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J)(1)(a) reason either now or in the reasonably foreseeable future.

   Complementary Protection

10. I do not accept that the applicant owned a house that was destroyed in an earthquake in 2023, that he was involved in a property dispute with Tongan authorities relating to it, or that he would be unable to receive adequate treatment in Tonga for any rugby injury that he may have suffered,  Therefore I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

11. I have also taken into account his claim to fear significant harm due to seismic activity for the purposes of complementary protection. The risk to life from such activity is tiny and such risk as may exist does not meet the definition of significant harm and regardless, whatever miniscule risk that may exist is one faced by the population of the country generally and is not faced by the applicant personally.

12. As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).  

    CONCLUDING PARAGRAPHS

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 s 36(2)(a).

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

15. 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

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

    Rodger Shanahan
    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.

    …