2319257 (Refugee)

[2024] AATA 2714

2319257 (Refugee) [2024] AATA 2714 (16 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2319257

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Senior Member G.A.F. Connolly

DATE:16 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 16 April 2024 at 3:50pm

CATCHWORDS

REFUGEE – protection visa – Fiji – Federal Circuit Court remittal – contribution to the community – compassionate circumstances – citizenship qualifications of children – only family member who is not an Australian citizen – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 43
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 48, 65, 104, 417, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

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

Opening Statement

1. This case results from an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 November 2023 (Minister’s Delegate) to refuse to grant the protection visas to the three applicants in this case (mother, son, and daughter) pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act).  For the sake of succinctness, in these reasons, I will refer to the applicant mother as the applicant.

2. This is both an extraordinary complex and yet breathtakingly simple case. This case could have been – and should have been – resolved by the Department of Home Affairs (Department) much earlier and with finality.  Instead, this is a case where both of the metaphorical departmental ‘hands’ resembled the notorious judicial description of notionally adversarial proceedings: “The torpid languor of one hand washes the drowsy procrastination of the other.”[1]  

   [1] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [156] per Heydon J.

3. This case should never, ever, have reached this Tribunal. This case should, instead, have been solved through the application of both a modicum of practical common sense and human decency, which one may like to think of as enduring aspects of the Australian character, but which was, here, submerged by a tsunami of bureaucratic inertia and curial formalism of the kind that all too often plagues these sorts of cases.

4. While this Tribunal cannot right every wrong of the executive government, its members must not, in discharging this Tribunal’s duty to be an instrument of ‘good government’[2], ever shy away from being brutally honest when it finds ‘bad government’ doing, frankly, bad things to vulnerable people. The bad things done by government include acts of omission every bit as much as they do acts of commission.  This case should, again, never, ever, have got this far.

   [2] RBPK and Innovation and Science Australia [2018] AATA 1404 at [11], [12], and [14], per Thomas J and McCabe DP.

5. It simply boggles the mind that this case has already, involved, seemingly, a previous Tribunal application, as well as a judicial review application to the former Federal Circuit Court[3], as well as representations to relevant members of the Parliament. It raises the obvious issue of whether cases similar to this one have gone unremedied by reviews such as this one. Equally, it raises the question of why no one in a reasonably senior position in the Department ever looked at this case and decided to apply some semblance of, yes, common sense, to a case that was always - one hopes metaphorically but fears literally – crying out for such an approach to be taken.

   [3] [Citation deleted.]

6. I have concluded this decision by referring this case to the Minister for their urgent and compassionate consideration of the applicant’s circumstances in a case that – I repeat – should never, ever, have taken this long to reach such an end.

   The Facts

7. This female applicant is a Fijian citizen who has resided in Australia for approximately 15 years and who, for almost 13 of those years, was the primary carer of her mother, who was an Australian citizen.  In fact, both her mother and her father were Australian citizens.[4] The applicant has numerous siblings who are also Australian citizens and who also live in Australia.  The applicant’s status in her family seems to be that of the one family member who is not an Australian citizen. Indeed, the applicant’s late mother was the sponsor of the applicant’s original application for a Carer visa in 2008.[5]

   [4] Department case file [number] of 06 October 2023 at page 17.

   [5] [Citation deleted.]

8. On 02 October 2008, the applicant applied for her carer visa to come to Australia. The applicant was granted that visa and she became the full-time carer of her late mother, [named], who passed away in 2022. The applicant’s mother suffered in the period from 2008 to 2022 from a variety of serious medical conditions that the applicant helped her to live through and endure. 

9. On [date], the applicant’s son, [named], was born in Australia. The applicant’s son is now [age] years of age and has only ever lived in Australia.

10. On [date], the applicant’s daughter, [named], was born in Australia.  The applicant’s daughter is now [age] years of age and has only ever lived in Australia.

11. On or about 13 May 2016, the applicant’s relationship with her husband, [named], ended, and the former husband left Australia to return to Fiji. This left the applicant here in Australia with her two young Australian-born children, caring for her (Australian citizen) mother.[6]

    [6] Applicant’s statement dated 12 April 2024.

12. For reasons that are set out in the decision of the Federal Circuit Court (Judge [named])[7], the applicant acted from 2008 onwards as her late mother’s carer until her late mother passed away in 2022. In all this time until now, the applicant has been in and remains in a most difficult position, whereby her late mother was an Australian citizen, as are most of her siblings, while the applicant is not herself an Australian citizen.  Further, both her children were born in Australia and know only Australia. It is hard to think of why none of these pertinent facts would raise obvious questions among the directing minds of the Department but, sadly, those minds were either asleep or they were lost in what seems to be the not uncommon bureaucratic fog that engulfs our administrative state.

    [7] [Citation deleted.]

13. On or about 06 October 2023, the applicant applied to the Department of Home Affairs for a protection visa.  In that application, the applicant said this, repeatedly, in her form:

    Dear Immigration Officer,

    I have applied for a Protection Visa. I understand that I am affected by the "s48 bar" because I have been refused a Carer Visa,but I can make a valid application for this type of visa.
    I am aware that I do not meet the requirements for the grant of a Protection Visa,and that the visa will be refused. I will then apply to the Adminstrative Appeals Tribunal and then seek Ministerial Intervention.
    When I am at the stage of seeking Ministerial Intervention,I will bring to the Minister's attention that I came to Australia 15 years ago to care for my mother who was very unwell and I did care for her for many years but she passed away in 2022;I have no relatives or connections left in Fiji so would struggle to support myself and my children there; my children were born in Australia,only speak English and have never been to Fiji;my children will soon be Australian citizens. Therefore I'm kindly requesting that you reconsider my current situation and what I've been through from the time I looked after my mum till now and if you can permit us to remain permanently in Australia. Hoping all this will be taken into consideration when processing this application.

14. On or about 24 November 2023, the applicant made an application for a protection visa which was refused by the Minister’s Delegate.[8]

    [8] Protection Visa Decision Record dated 24 November 2023.

15. On or about 24 November 2023, the applicant appealed to this Tribunal for review of the decision made by the Minister’s Delegate to refuse her a protection visa.

16. On 15 March 2024, the applicant appeared before the Tribunal to give evidence and present arguments (Hearing). The applicant was supported by her pastor and [relative], [Pastor A], who also assisted the Tribunal in the Hearing, greatly. The Tribunal’s Hearing was conducted with the assistance of an interpreter in the Fijian and English languages, whose contribution was appreciated by the Tribunal.

17. At the Hearing, the nature of the limited jurisdiction of the Tribunal in relation to protection claims was carefully explained to the applicant.

18. The applicant, in explaining her case, accepted at the Hearing that she did not have a valid protection claim and that the Tribunal would be unable to assist her with a favourable decision.

19. However, the applicant did say in her Hearing that she was making the protection claim in order for it to be rejected, in order that, she said, this could form the basis of an application by her or her representative and/or by her local Member of Parliament, for ministerial consideration. This, the applicant said, was also the advice that she had previously received from the office of her local Member of the House of Representatives, [named] (who represents the electoral division [named,] in the national Parliament).

20. On my review of all the evidence in this case, and on hearing the applicant’s case and the very helpful addresses to the Tribunal by [Pastor A], I have decided that this is a case that requires urgent ministerial intervention.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of Migration Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

2. 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.

3. 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).

4. 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.

5. 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.

6. Any application to this Tribunal, even where an applicant has not attended their own hearing, is a proceeding de novo and not an appeal, strictly speaking, at least not an appeal to any court. The case before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government.

7. In this matter, the Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act). The Federal Court said this of the Tribunal’s task[9]:

   The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.

   It goes without saying that no two cases are the same and that each case must be judged according to its own facts and on its own merits. In view of what was said in Drake, set out above, it is important to repeat that the Tribunal here takes on the role of determining what was the correct or preferable decision on the whole of the material that has been filed with or presented to this Tribunal in this case.

   Mandatory Considerations

   [9] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.

8. In accordance with Ministerial Direction No.84, made under s 499 of Migration 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.

THE PROCEEDINGS BEFORE THIS TRIBUNAL

1. It is important at the outset of these reasons to explain the nature of this Tribunal and its task in cases such as this one.  This Tribunal was created by the Administrative Appeals Tribunal Act 1975 (Cth) to be an enduring executive body that conducted merits review of applications made by persons dissatisfied with a reviewable decision made under federal law. Some of the impetus for this Tribunal’s creation arose from thinking across the common law world after World War II[10], like that of the Franks Committee[11] that inquired into British administrative law bodies, that sought to provide accessible and affordable non-curial mechanisms for citizens to challenge the administrative decisions of an ever larger and more bureaucratic state. The Franks Committee noted, for its part, that, “… statutory tribunals are an integral part of the machinery of justice in the state and not merely administrative devices for the disposing of claims and arguments conveniently”, adding the need for such statutory tribunals to be “open, impartial, and fair”.[12]

   [10] See the speech, “Overview of Tribunals Scene Australia”, given by Justice Garry Downes AM, then President of this Tribunal, on 05 April 2006.

   [11] The Committee on Administrative Tribunals and Enquiries chaired by Sir Oliver Franks OM GCMG and which reported in 1957 (Franks Committee) on aspects of British administrative law.

   [12] Cited by Hillaire Barnett, Constitutional and Administrative Law (12th Edition) (London, UK: Routledge, 2017) at 707.

2. With this in mind, it is important to note that this Tribunal, as I have explained in other reasons, operates as an executive body under Chapter II of the Constitution – and is not a Court, which operates under Chapter III of the Constitution. That is, the proceedings before this Tribunal are inquisitorial of an applicant’s case – not adversarial as between plaintiff and defendant parties – and the Tribunal does not, in protection cases such as this one, anyway, operate in the mode of a contradictor. So, in practice, in the matters before this Tribunal, it was and is the responsibility of every applicant to make their own case. It is not for the Tribunal to try and guess at the case that an applicant may be making. That is, it is up to the applicant to advance whatever evidence or argument they wish to advance in support of their particular case. In these sorts of protection cases, an applicant’s contention will be that Australia owes them protection obligations. This Tribunal must then decide whether the applicant has – on all of the evidence before and materials available to the Tribunal – made good their claim for protection.[13]

   [13] See Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ

3. With specificity, and to emphasise this crucial aspect of the Tribunal’s operation, it is important to note that there are specific statutory requirements that impose upon applicants the obligation to make their own case in as much detail as possible – and to do so at their first reasonable opportunity: ss. 5AAA and 423A of the Migration Act.  Otherwise, an applicant risks the making of adverse inferences against them where they make a case made later in time, and, especially, where this later case, or some new claims, are made after what amounts to a significant delay. Claims that are ‘improved’ and/or ‘renovated’ will always arouse scepticism and require explanation, particularly as to why these claims were not raised earlier. A delay, in itself, may not always be fatal to an applicant’s case but an applicant’s delay will always need to be explained. I will now discuss these two sections in more detail:

   a.section 5AAA of the Migration Act makes clear that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case. Further, and critically, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. In this respect, two obligations are particularly relevant: the ongoing requirement under s.104 of the Migration Act for an applicant to ensure their relevant details are correct and up to date, and, also, for them to amend any incorrect information at the first reasonable opportunity.

   b.section 423A of the Migration Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claims or evidence where the applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such a case, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not first raised or the evidence was not first presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the applicant’s claim or evidence. Applicants, therefore, who do not present all of their claims and evidence to the primary decision-maker must have a reasonable explanation for their not doing so.

   While the Tribunal is conducting a ‘de novo’ review, it cannot close its eyes to delay and to ‘recent invention’ of old evidence or new claims.  These are less matters of any strict rules of evidence than the proper application of common sense.  This said, there may be good reasons for a failure by an applicant to immediately recall all aspects of an applicant’s experience that may soundly ground a protection claim – and an applicant here may well be able to explain such a failure or delay.  It is crucial for this Tribunal to always keep an open mind and to be “open, impartial, and fair” in its evaluation of all the circumstances of an applicant’s claim.  Yet, ultimately, it is always the applicant’s case to make, much sooner rather than much later.

1. In this case, I have considered all the material afresh and made my own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.  While as noted above, the Tribunal is inquisitorial and can seek out the evidence it requires in order to reach a determination, the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[14] It is, rather, the responsibility of each applicant to specify all the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim: s 5AAA of the Migration Act.

   [14] see ABT16 v Minister for Home Affairs [2019] FCA 836 (05 June 2019) at [28] per Perram J.

2. For the reasons noted above and below, this applicant’s case is not he usual case, and, instead, this is a case where I have, on my review of all the evidence in this case, determined it is, very much, a proper case for intervention by the Minister under the Migration Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. This is a case in which the applicant conceded in the hearing that she understands she is not pressing her protection claim. 

2. The whole of the evidence that has been provided to the Tribunal including the evidence of supportive witnesses – and examined afresh – does not give rise to any possible inference of a valid protection claim.

3. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations and she does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that she cannot be granted a protection visa.

4. However, for the reasons set out below, the applicant’s case is one that is worthy of referral to the Department for ministerial consideration and intervention.

MINISTERIAL INTERVENTION

1. I support, strongly, this case being brought before the Minister for their intervention.

2. While the applicant’s circumstances do not meet the statutory threshold that would trigger any of the protection obligations owed by Australia, the applicant is someone who is within the guidelines that are set down by the Ministerial intervention principles under Cases that should be brought to my attention: Unique or exceptional circumstances:

   compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

3. The applicant is [an age]-year-old Fijian lady, with no criminal record. and an exemplary record of assisting others, especially during the Covid pandemic, whose whole family lives in Australia now.  The applicant is active in her church and in supporting its mission here, including during the pandemic.[15] The case file from both this Tribunal and the Department is replete with evidence of the applicant helping others – and, in the very best sense, consistently putting others well before herself. I would direct attention to the correspondence filed from fellow parishioners and members of the applicant’s community that makes out her value as a community member and her many estimable personal qualities.

   [15] Applicant’s filed bundle of materials in the Tribunal file.

4. The suggestion that the applicant could be removed to Fiji, away from her surviving family, would, in all the circumstances of this case, be most cruel and punitive. It would, inevitably, as a matter of common sense and based on all of the evidence in this case, do immense harm to the applicant and her spiritual and mental well-being. It would be cruel, also, for her children, who were all born in Australia and who only know Australia, to be removed to Fiji, too.  It is difficult to conceive of a case which, on its face, would be more obviously deserving of swift ministerial consideration and intervention than this one.

5. I believe that this case is a compassionate circumstance in which the Minister should intervene given the applicant’s life, her exemplary character, her honesty and forthrightness in her dealings with the Commonwealth (including this Tribunal), and the contributions that she has already made to her family and her community in Australia.

6. It is to the applicant’s credit that she persevered with this application, against what seems from this case’s files to have been unrelenting bureaucratic indifference, and yet was so honest and forthright before this Tribunal. The Minister will hopefully note the applicant’s complex and difficult story, bearing in mind what the Israeli philosopher, Avishai Margalit, said in respect of how the institutions of a decent society should treat those who ask for its help:[16]

   “A decent society is one whose institutions do not humiliate people. I distinguish between a decent society and a civilised one.  A civilised society is one whose members do not humiliate one another, while a decent society is one in which the institutions do not humiliate people.”

   It is time this applicant’s case was the subject of a both proper and expeditious ministerial consideration worthy of a society that is both decent and civilised, and whose institutions, especially those of government, do not humiliate people. 

   [16] Avishai Margalit, The Decent Society (Harvard University Press, Cambridge, MA, USA, 1996), at 1.

7. For the foregoing reasons, the facts and circumstances of this case make it one that has unique and exceptional circumstances – particularly in relation to the applicant’s familial circumstances here in Australia and the oddity that she is seemingly the only living member who is not an Australian citizen – which means this case should be brought, urgently, to the Minister’s attention, for a final and justly compassionate resolution of the applicant’s circumstances in this country.

8. Therefore, the Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)’ and will refer the whole of the applicant’s case to the Department for the Minister’s attention.

DECISION

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

   
   Statement made on 16 April 2024 at 3:50pm

   Graham Alfred Frederick Connolly
   Senior Member
   Administrative Appeals Tribunal

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1)     Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)   that is not inconsistent with Article 7 of the Covenant; or

   (d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)   that is not inconsistent with Article 7 of the Covenant; or

   (b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)   for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)   for the purpose of intimidating or coercing the person or a third person; or

   (d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)   for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)   a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H  Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)   in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note: For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J   Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)   the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)   the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)   a threat to the person’s life or liberty;

   (b)   significant physical harassment of the person;

   (c)   significant physical ill‑treatment of the person;

   (d)   significant economic hardship that threatens the person’s capacity to subsist;

   (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)   disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L   Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)   a characteristic is shared by each member of the group; and

   (b)   the person shares, or is perceived as sharing, the characteristic; and

   (c)   any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)   the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)   protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)   the person can access the protection; and

   (b)   the protection is durable; and

   (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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   36   Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)   a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)   the death penalty will be carried out on the non‑citizen; or

   (c)   the non‑citizen will be subjected to torture; or

   (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)   the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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