2318303 (Refugee)

[2024] AATA 2643

2318303 (Refugee) [2024] AATA 2643 (17 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2318303

COUNTRY OF REFERENCE:                   Timor-Leste

MEMBER:L Symons

DATE:17 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 17 April 2024 at 12:18pm

CATCHWORDS
REFUGEE – protection visa – Timor-Leste – non-appearance before the Tribunal – claimed fear of relatives – land dispute – customary rights to tribal land – insufficient information before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 November 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, first arrived in Australia [in] September 2017 as the holder of a Temporary Work (International Relations) (Class GD) (Subclass 403) visa that was valid until 22 March 2018. She departed Australia [in] March 2018. She re-entered Australia [in] February 2023 as the holder of a Temporary Work (International Relations) (Class GD) (Subclass 403) visa. She departed Australia [in] August 2023 and returned [in] August 2023. This visa expired on 20 November 2023.

3. On 30 September 2023, the applicant applied to the Department of Home Affairs (the Department) for a Protection (Class XA) (Subclass 866) visa. On 9 October 2023, she was granted an associated Bridging visa. On 7 November 2023, the Department refused to grant her a Protection visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 12 November 2023, she applied to the Tribunal for review of that decision.

4. The applicant appeared before the Tribunal on 24 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.

5. The applicant was not represented in relation to the review.

6. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.  

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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 AND FINDINGS

13. The applicant’s claims in her application for a Protection visa, dated 30 September 2023, are summarised as follows:

    ·She was born at Dili in Timor-Leste on [date]. She is a citizen of Timor-Leste.

    ·She came to Australia to escape financial problems. She owes money to neighbours and acquaintances. She was threatened and harmed when she could not return the money.

    ·She was beaten as a result of being in debt. Her wife ran away because of her debt. She does not want to go through it anymore.

    ·There is no place to go that will help with the situation. There is nothing the authorities can do to protect her.

    ·If she is returned to Timor-Leste she will be threatened and beaten as revenge by the people to whom she owes money.

14. The applicant provided the Department with the bio data page of her Timorese passport, issued [in] 2021 and valid [until] 2026.

15. On 9 October 2023, the Department sent the applicant a letter requesting further information within 28 days of receipt of the letter. The letter also informed her that the decision on her application could be made without another opportunity for her to present any further information. She did not provide any further information and her application for a Protection visa was refused on 7 November 2023.

16. The applicant has filed with the Tribunal a copy of the delegate’s Decision Record dated 7 November 2023, the bio data page of her Timorese passport issued [in] 2021 and valid [until] 2026, a photograph of her purporting to show her at her father’s funeral, [flight] boarding passes for flights between Brisbane and Dili in her name and a document titled Deklarasaun Emprestinmu (Loan Statement) between [Mr A] and [Mr B] dated [in] October 2022 together with a translation in English that does not appear to be from a NAATI qualified translator.

17. The applicant wrote to the Tribunal by email on 17 December 2022 and stated as follows:

    ·She would like to stay in Australia a little longer as her father passed away four months ago.

    ·She has to take over her father’s place to pay debts and be responsible for her family.

    ·She has evidence of her father’s debts, evidence that he passed away and tickets when she went to her country [in] August 2023.

    Receiving Country

18. The applicant claims to be a citizen of Timor-Leste and has provided a copy of her Timor-Leste passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Timor-Leste. The Tribunal finds that Timor-Leste is the receiving country for the purpose of assessing her claims for protection under the refugee criterion and the complementary protection criterion.

    Third Country Protection

19. The Tribunal finds that the applicant is outside her country of nationality. During the hearing, she gave evidence that she has applied for Portuguese citizenship. She submitted an application at the Portuguese embassy in Timor-Leste in 2022. It is a long process and she has not followed up her application. There is no evidence before the Tribunal to suggest that she has the right to enter and reside in any country than her country of nationality.

    Assessment of Claims

20. During the hearing, the applicant gave evidence that her application for a Protection visa was prepared by a friend of a friend. All she had to do was to pay the money. She does not know the name of the person who prepared her visa application. She initially paid $150.00 for the preparation of her visa application and a further $120.00 when her visa application was refused. She gave the money to her friend who gave it to his/her friend. She never met or spoke to the person who prepared her visa application.

21. The Tribunal asked the applicant whether she provided the information contained in her application for a Protection visa. She responded yes, she stated that there is no work in Timor-Leste. She wants to support her family and that is the reason she applied for the Protection visa. She also wants to work to pay off family debts. When asked whether she read her application for a Protection visa or whether someone else read it to her after it was prepared, she responded that she did not let anyone read it. She read it herself but did not understand it. When asked whether she knew what was in her visa application, she responded yes, she gave the reasons.

22. The Tribunal asked the applicant whether there had been any changes in her circumstances since she filed her visa application. She responded yes as she can help her family with the money she earns from working. When asked whether she had obtained any immigration advice from a lawyer or migration agent in Australia, she responded no. When asked who advised her to apply for a Protection visa, she responded that she heard about it and saw the changes it made in people’s lives so she decided to apply for this visa. The Tribunal asked her what changed from the time she came to Australia in February 2023 and when she returned to Timor-Leste in August 2023. She responded that when she returned to Timor-Leste in August 2023 her family had a problem. She had to deal with a lot of things. When she returned to Australia, she thought she would use this pathway. She thought it would help her to help her family.

23. The Tribunal asked the applicant about her family. She responded that she has [number] older sisters and [number] younger brothers. She is the [numberth] child in her family. Her [number] older sisters are married and have their own households. The husbands of her [number] sisters are working. She, her mother and her [number] younger brothers live together in one household in Dili. Her mother and [number] brothers are not working and she has to look after them. There is no work in Timor-Leste. One of her brothers is a Portuguese citizen. He became a Portuguese citizen in 2022 and followed the same process she did. He returned to Timor-Leste when her father passed away (in August 2023).

24. The applicant stated that she first came to Australia in 2017 on a work visa. She worked in Brisbane picking [fruit]. She returned to Australia in February 2023 on a work visa. She worked in [Town 1]  picking [fruits] and in [City 1] picking [fruits]. When her father passed away (in August 2023) she went back to Timor-Leste. She wanted to stay in Timor-Leste and help her family but they said she had to return to Australia. On her return to Australia, she applied for a Protection visa. She is now working in a [factory] in [City 2]. The only paid work she has done in Timor-Leste is for one month in November 2022 when she packed goods for vulnerable people.

25. The applicant stated that she left Timor-Leste and came to Australia in February 2023 to work because she could not get work in Timor-Leste. When asked whether that was the only reason why she came here, she responded that the reason was there is no work and she needed to support her family. When asked about the problem her family had in August 2023, she responded that they had a problem of a debt. Her father suffered from high blood pressure and passed away. He borrowed money through his workplace to buy a car. The car belongs to the employer and his employer paid half the loan and her father paid half the loan. Once her father paid his half of the loan, the car would have belonged to him. Her father had been paying off the loan from the income generated from using the car. For instance, if the car was used for [transporting goods], the earnings were split between the employer and her father.

26. The applicant stated that her father borrowed US$20,000.00. Her father had repaid some of that money. The rest is being paid off from money received for using the car to transport goods. When asked how her mother and siblings are managing the finances if none of them work, she responded that a cousin is now driving her father’s car. Her younger brother is monitoring that. Since coming to Australia, she has been repaying the debt. Half the debt has been paid. She does not know the amount that is currently outstanding.

27. The Tribunal asked the applicant whether she had any problems when she returned to Timor-Leste in August 2023. She responded that her younger brothers were fighting with their cousins. Her cousins recently threw stones at their house and damaged the corrugated iron. They also damaged her father’s car and broke the window. She does not know what caused the problem. Her brother-in-law went to the Police and made a complaint. The Police went to their house. There is now a Court case which involves both families.

28. The Tribunal asked the applicant what she thought would happen if she returned to Timor-Leste. She responded that she will not be able to help pay the debt and this would be a major threat to her family. When asked what she meant by that, she responded that they (her cousins) wanted to hurt her younger brother but did not manage to do so. This is a big threat to them. She wants the Australian government to help her to work here. When asked if there was anything else she wanted the Tribunal to know, she responded that she really wants to work in Australia. She hopes the Tribunal can help her to stay in Australia. She needs it for her life, her future and her family. If she returns to Timor-Leste she will not be able to do anything. When asked whether she had told the Tribunal all the reasons why she does not want to return to Timor-Leste, she responded that she wants to return to Timor-Leste because she misses her family but because of her circumstances and her family’s circumstances she has to be away from them. 

29. The Tribunal has considered the documentary evidence provided by the applicant. This includes evidence of her attending her father’s funeral in Timor-Leste in August 2023. She also provided a document titled Deklarasaun Emprestinmu (Loan Statement) between [Mr A] and [Mr B] dated [in] October 2022 together with a translation in English that does not appear to be from a NAATI qualified translator. Her evidence is that her father’s name is [Mr B]. The loan statement indicates that [Company1] lent [Mr B] the sum of US$20,000.00 at an interest rate of 5% for the purchase of a truck. The truck is to be used for the purpose of transporting [goods]. Twenty five percent of the income earned is to be retained (by the lender) until payment of the loan.

30. The Tribunal raised as an issue with the applicant the fact that her evidence to the Tribunal was significantly different to her claims for protection in her application for a Protection visa. The Tribunal noted that her claims in her visa application even referred to her wife running away because of her debts when her evidence to the Tribunal was that she has never been married. The Tribunal noted that it may come to the conclusion that the person who prepared her application for a Protection visa had copied someone else’s visa application and did not check whether it applied to her. The Tribunal noted that it may also lead it to the conclusion that the claims in her application for a Protection visa had been fabricated.

31. The applicant responded that she is single and has never been married. Perhaps things have been added in and taken out of her visa application. It is difficult for her to understand. She is shocked. She is just finding out the truth that what is in her visa application does not match what she said.

32. The Tribunal raised as an issue with the applicant the fact that the problem in the family was over a dispute between her brother and her cousin. The Police have responded to a complaint and are resolving it in accordance with the law. The Tribunal noted that she did not satisfy the criteria for a Protection visa. She responded that the person who prepared her application for a Protection visa did not stick to the reasons she provided.

    Other considerations

33. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

34. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that she is a credible witness. The Tribunal finds that her application for a Protection visa was not prepared in accordance with her instructions and that her claims for protection were fabricated. Accordingly, the Tribunal rejects her material claims for protection in her application for a Protection visa in their entirety.   

35. The Tribunal accepts that the applicant was born on [date] at Dili in Timor-Leste. The Tribunal accepts that she has [number] older married sisters and [number] younger unmarried brothers. The Tribunal accepts that she has never married. The Tribunal accepts that her father passed away in August 2023. The Tribunal accepts that her mother and brothers are unemployed and she supports them financially. The Tribunal accepts that the only paid work she has undertaken in Timor-Leste was for one month in November 2022 packing boxes for vulnerable people. The Tribunal accepts that she had difficulty finding paid employment in Timor-Leste.

36. The Tribunal accepts that the applicant travelled to Australia [in] September 2017 as the holder of a subclass 403 Temporary Work (International Relations) visa and departed Australia [in] March 2018 prior to the expiry of her visa. The Tribunal accepts that she returned to Australia [in] February 2023 as the holder of a subclass 403 Temporary Work (International Relations) visa that was valid until 20 November 2023. The Tribunal accepts that she left Australia [in] August 2023 to attend her father’s funeral and returned to Australia [in] August 2023. The Tribunal accepts that she has worked in Australia as a fruit picker. The Tribunal accepts that since applying for a Protection visa on 30 September 2023 she has been working in a [factory].

37. The Tribunal accepts that the applicant’s father entered into a loan agreement with his employer [in] October 2022 to borrow US$20,000.00 for the purchase of a truck. The Tribunal accepts that the agreement provides that the truck be used for the purpose of transporting [goods] and that 25% of the income earned be paid to his employer by way of loan repayment. The Tribunal accepts that since her father passed away her cousin has been driving the truck and one of her brothers monitors him. The Tribunal accepts that her family has continued to repay the loan with her assistance.

1. The Tribunal accepts that there has been a dispute between her cousins and one of her brothers that resulted in her cousins throwing stones at their home and damaging their home and the window on the truck. The Tribunal accepts that her brother-in-law lodged a complaint with the Police, that the Police acted on the complaint and there is a Court case pending. The Tribunal is not satisfied that she will be at risk of harm from her cousins for any reason if she returns to Timor-Leste now or in the reasonably foreseeable future. 

2. The Tribunal accepts that the applicant feels responsible for financially supporting her family and assisting them to repay the truck loan. The Tribunal accepts that since working in Australia she has been able to do so. The Tribunal accepts that she is concerned that if she returns to Timor-Leste she will not be able to obtain employment and financially assist her family. The Tribunal is satisfied that the difficulties that she and her siblings have had to find employment in Timor-Leste is because of the country’s economic situation and not because she or they have been denied employment for any reason. The Tribunal accepts that she feels she will have a better life and future if she lives in Australia and does not wish to return to Timor-Leste.

3. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any reason if she returns to Timor-Leste now or in the reasonably foreseeable future. 

   Does Australia have protection obligations to the applicant under the refugee criterion?

4. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any reason set out in s.5J(1)(a) of the Act, that there is a real chance that she would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Timor-Leste. Therefore, she does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

   Does Australia have protection obligations to the applicant under the complementary protection criterion?

5. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

6. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste, there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

   CONCLUSION

7. 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) or s.36(2)(aa) of the Act.

8. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, she does not satisfy the criterion in s.36(2) of the Act.

   DECISION

9. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         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.

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