2319509 (Refugee)

[2024] AATA 2718

2319509 (Refugee) [2024] AATA 2718 (5 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2319509

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Senior Member G.A.F. Connolly

DATE:05 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2024 at 5:01pm

CATCHWORDS

REFUGEE – Protection Visa – Fiji – fears harm from gang members in Fiji – extortion – lack of evidence to support any of the claims – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65,423, 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age]-year-old male citizen of Fiji.

2. The applicant applies to this Tribunal for review of a decision made by a delegate of the Minister for Home Affairs (Minister's Delegate) on 20 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).

3. On 09 October 2023, the applicant applied for a protection visa by completing the relevant Australian Government form.[1]  When asked why the applicant had not moved to another part of Fiji, his response was "I decided to move to Australia after I have received the sponsor job from the Company."[2]  Apart from what the applicant said on his form, there was otherwise no other evidence filed with, or statement made by the applicant to, the Department of Home Affairs (Department), in relation to his claim for protection.

   [1] Applicant's "Application for a Protection Visa" dated 09 October 2023.

   [2] Applicant's "Application for a Protection Visa" dated 09 October 2023 at page 10.

4. In the decision of 20 November 2023 that was made by the Minister’s Delegate, this was noted[3]:

   [3] Applicant's Protection Visa Decision Record dated 20 November 2023 at page 2.

   The applicant’s claims for protection and the evidence and other information they provided in support of their claims are in [file number deleted]. The applicant’s claims for protection are summarised below:

   §The applicant came to Australia for safety and protection from gang members in Fiji, who are extorting them for money.

   §They applicant got into an accident with the gang members, who harmed the applicant and demanded money from them.

   §The gang members have continued to demand money from the applicant. They have been threatened with further harm if they do not give the gang members money.

   §The gang members told them not to go to the authorities. The applicant fears if they make a police report it will compromise the safety of their family.

   The applicant has been given the opportunity to provide all of the details of their protection claims.

   The application form that they completed informed them that they should provide all of their claims for protection and all documentation or other evidence to support their claims. It also informed the applicant that a decision could be made on the information provided in their application.

   On 18 October 2023 the applicant was sent an acknowledgement of valid application correspondence which advised them they could provide additional information relating their claims and how they could provide this. The correspondence also informed the applicant that the decision on their application could be made without another opportunity for them to present any further information.

   As of the date of this assessment the applicant has not provided additional information in relation to their claims. Nor is there any evidence that they attempted to contact the department to provide further information about their claims.

   I consider that the applicant has been given a reasonable opportunity to provide additional information and evidence to substantiate their claims. As advised in the acknowledgement letter, I am now proceeding with a decision based on the information before the Department.

   (Emphasis Added)

5. On 30 November 2023, the applicant applied to this Tribunal for review of the adverse decision made by the Minister’s Delegate.  In the relevant form, where the applicant is asked, "Why do you claim the decision is wrong?", the applicant's response was: "I would like to extend the Visa."[4]  This was the extent of the applicant's case.

   [4] Applicant's Application for Review of Decision, dated 30 November 2023, at page 4.

6. On 21 March 2023, the applicant's representative, Ms Jennifer Samuta, indicated that the applicant did not wish to appear before the Tribunal and was content for a decision to be made by the Tribunal in his case on the papers.[5]

   [5] Email from Jennifer Samuta, Director and Migration Solicitor, 21 March 2024.

7. In the period from 30 November 2023 to now, the applicant filed no further evidence in support of his claims.  The only guide to the applicant's claims are his application for review and the materials that he filed with the Department.

8. Accordingly, there was no hearing of this case and so I must decide this case on all of the materials filed by the applicant with the Department and the Tribunal.

9. I have reviewed all the materials that are contained in the files of the Department and of the Tribunal.

10. For the reasons set out in this decision, the applicant’s case before this Tribunal must fail and the decision of the Minister’s Delegate must be affirmed.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Migration 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.

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.

   Mandatory considerations

6. In accordance with Ministerial Direction No.84, made under s 499 of the 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 AUSTRALIAN CROWN AND THE EXECUTIVE POWER

1. Australia is a monarchical polity in which the Constitution (via s 61) vests the executive power in the Crown, to be exercised by the Governor-General as the monarch’s representative.[6] The monarch is the head of the federal executive[7] and the Governor-General is charged with the “execution and maintenance” of the Australian Constitution.[8] As both Sir Owen Dixon[9] and W. Anstey Wynes[10] wrote, the Crown was (and is) the central element of the Constitution and the Crown predominates every aspect of Australian governmental power. The Crown’s role and its prerogatives are crucial to an understanding of the Australian constitutional order. While focus may be understandably drawn to the elected Parliament (Chapter I) or to the Judicature (Chapter III), the Crown occupies this central position in our Constitution (Chapter II). After all, as the preamble to the Constitution lays out, Australians unite, first, under the Crown and, only then, under the Constitution – and in that order of the ‘two unders’:

   WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established…

   As Professor Adrian Vermeule of Harvard University wrote in his latest work on the classical legal tradition, which underlies both the civil law and common law traditions, and which tradition helped create written and entrenched constitutions such as Australia’s own: “We have first to understand the law as it really is; only then can we understand where we have abandoned the law as it really is, and how to recover it.”[11]

   [6] “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”

   [7] Professor John M. Williams, “The Crown: its Nature and Role”, in Martin Hinton and John Williams (Editors), The Crown: essays on its manifestation, power, and accountability (2018) University of Adelaide Press, Adelaide (SA), at 2.

   [8] Constitution, s 61.

   [9] Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 304 per Dixon J.

   [10] W A Wynes, Legislative, Executive, and Judicial Powers in Australia, (1962) at 89.

   [11] Adrian Vermeule, Common Good Constitutionalism: Recovering The Classical Legal Tradition (2022) Polity Books, Cambridge (UK), at 179.

2. Noting the foregoing, and the resulting duty articulated by Professor Vermeule to understand “the law as it really is”, any conscientious observer will immediately note that this Tribunal operates under statute[12] as a body that forms part of the executive government of the Commonwealth of Australia, the executive power of which is vested in the Crown.[13]  All executive acts are acts by and on behalf of the Crown. There is no exercise of executive power, such as the review of administrative decisions done by this Tribunal, that is not an act which is by and on behalf of the Crown. Need it be said that the statute that the Parliament enacted to create this Tribunal only has legal force because of the royal assent exercised by the Governor-General.[14] The Crown’s enduring existence, its prerogatives, and particular duties, give rise to important if basic considerations which should inform both the exercise of executive power and its review by this Tribunal. Importantly, the position of the Crown that was outlined in 1667, that the Crown is “the fountain and head of justice and equity” - a proposition never doubted subsequently – must, too, be borne in mind.[15]  

   [12] Administrative Appeals Tribunal Act1975 (Cth).

   [13] Constitution, s 61.

   [14] Constitution, s 58.

   [15] Baron Atkyns in Pawlett v. Attorney-General, Hardres Reports 465 at 469, cited in Dyson v Attorney General [1911] 1KB 410 at 421 by Farwell LJ.

3. Insofar as this Tribunal reviews administrative decisions that affect persons, often vulnerable persons, this Tribunal is, in a real sense, like the Crown itself, to use the words of the distinguished former Justice M.D. Kirby AC CMG, “…an instrument for the good government of a free society”.[16] This Tribunal is a body that exercises executive power that Chapter II of the Constitution vests in the Crown itself. Accordingly, it is important, when an opportunity arises, to set these matters out, with a concern for accuracy, brevity, and clarity, but also for stating, with thoroughness, that the exercise of executive power by the Crown, particularly in matters involving vulnerable persons, carries with it duties as well as rights.

   [16] Hon Justice Michael Kirby AC CMG, “A centenary reflection on the Australian Constitution”, The Round Table (2001), Vol 361, 589-606, at 589.

4. At the same time, the Executive Government must deal with the world as it truly is, and, indeed, no less so than when assessing those who are making claims on the Crown for its protection. In a passage in Machiavelli’s The Prince (1513), the fundamental challenge posed to good governance by bad people (of whatever origins and/or nationalities) was summed up in colourful but accurate language:[17]

   The reason for this is a fact about men in general: they are ungrateful, fickle, deceptive, cowardly and greedy. As long as you are doing them good, they are entirely yours: they will offer you their blood, their property, their lives, and their children—as long as there is no immediate prospect of their having to make good on these offerings; but when that changes, they will turn against you.

   In Machiavelli's later work, The Discourses (1519), he noted the crucial role played by law in curtailing or at least confining the human capacity for corrupted and debauched behaviour, saying:

   Due consideration of this will cause all legislators, whether in a republic or a kingdom, to be all the more ready to restrain human appetites and to deprive them of all hope of doing wrong with impunity.[18]

   In the intervening five centuries since Machiavelli penned these words, nothing has occurred to change that fundamental mission of the State and the laws that must arm it with power. The executive government of the nation-state must be prepared to deal with persons who are not just honest and forthright but, also, those who are, or who may be tempted to be, “deceptive” or perhaps “fickle” in their truthfulness when making claims for protection by Australia.  Tribunal members must do their duty with complete fairness - but also a wise awareness of the human capacity for both virtue and vice.

   [17] Machiavelli, The Prince, Chapter 17.

   [18] Machiavelli, The Discourses, Book One at Discourse 42.

5. The proceedings before the Tribunal are inquisitorial, as befits merits review, and the Tribunal is not in the position of a contradictor. It is thus always for any applicant to make their case. It is for the applicant to advance whatever evidence or argument they wish to advance in support of that case. In these particular cases, an applicant’s contention will be that Australia owes them protection obligations. This Tribunal must then decide whether that claim has been made out.

   Statutory Guides

6. To emphasise the point, per ss. 5AAA and 423A of the Migration Act, an applicant is required to make their own case in as much detail as possible – and to do so at their first reasonable opportunity.  Otherwise, adverse inferences may be drawn against cases made later and, especially, after significant delay.  If an honest person is given an honest account of their own personal history, then there is, generally, no good reason why that account should be varied or become enlarged over time.  While this is not any sort of iron rule to be applied inflexibly, common sense requires that a certain scepticism should be exercised where an applicant’s personal history includes ‘new facts’ and ‘new occurrences’ not previously disclosed by them to the Executive Government of the Commonwealth of Australia when she or he had the opportunity to do so.

7. 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; and

   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.

8. While the Tribunal is conducting a ‘de novo’ review, it cannot close its eyes to delay and to ‘recent invention’ of what is purported to be ‘old evidence.’  These are less matters of strict rules of evidence than the application of what I would simply term ‘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, in turn, soundly ground a protection claim.  It is crucial to always keep an open mind and to be fair and just in all the circumstances of an applicant’s claim.  Yet, ultimately, it is always the applicant’s case to make.

9. In this case, noting what I have said about the lack of focused effort made by the applicant to advance his case, I have considered all of the material afresh in all of the Tribunal files and Department files, and I have 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. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Noting the above, then, the issue in this case was whether the applicant had or had not made out his claim that Australia owes him protection obligations.

2. To reiterate what I have said in other cases: where an applicant makes a claim of a fear of persecution and/or harms, the mere fact that a person claims this fear for a particular reason does not establish either the genuineness of the asserted fear, or that the fear is well-founded, or that it is for the reason claimed. A fear of persecution or harm is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation. An assertion, however, passionately and/or repeatedly it is made, is not proof of its truth.

3. Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making of the kind done by this Tribunal, the relevant facts of an individual’s case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. This is especially the case where the applicant has chosen, as here, not to appear before the Tribunal to make their case.

4. A decision-maker is not required to make the applicant's case for them. Nor is this Tribunal required to accept uncritically any and all of the claims and allegations made by an applicant.  As a general rule, this Tribunal grants the benefit of the doubt to applicants who are generally credible even if unable to substantiate all of their claims.  At the same time, an applicant who is not credible will, almost always, have their case rejected.

   The Applicant's Claims

5. The applicant's claim was, per the Protection Visa Decision Record was that[19]:

   ·he came to Australia for safety and protection from unidentified gang members in Fiji, who are extorting him for money.

   ·he got into an accident with unidentified gang members, who harmed the applicant and demanded money from them.

   ·unidentified gang members have continued to demand money from the applicant. They have been threatened with further harm if they do not give the gang members money.

   ·these unidentified gang members told the applicant not to go to the relevant Fijian authorities and he fears if he makes a police report then he will compromise the safety of his family.

   [19] Applicant's Protection Visa Decision Record dated 20 November 2023 at page 2.

6. The applicant has also admitted, as well, per his filed form, that "I decided to move to Australia after I have received the sponsor job from the Company"[20]  and that he filed this current application for review because, he says, "I would like to extend the Visa."[21]

   [20] Applicant's "Application for a Protection Visa" dated 09 October 2023 at page 10.

   [21] Applicant's Application for Review of a Decision, dated 30 November 2023, at page 4.

7. The upshot is that the applicant's claims relate to unspecified gangs and unparticularised gang threats in Fiji.

   The Applicant's Evidence

8. The applicant put on no evidence in this case other than what appears on his forms.  The applicant was given considerable time by the Department and by this Tribunal to file evidence that supported his claim. The applicant chose not to do so.

EXAMINATION OF THE APPLICANT’S CASE

1. I have considered all of the applicant’s claims and the materials that he has filed with this Tribunal in making them.  The applicant's claim is that he was at some stage threatened by a gang in Fiji.  Despite his many opportunities to make his case, there is a complete lack of evidence to support any of the claims made by the applicant, or that he would face any real chance of persecution, or any form of harm, now or in the foreseeable future if he was residing in or returning to Fiji.  There is, in particular, a failure by the applicant to particularise his claim such that:

   ¾there is no identification of where and when he was threatened by this Fijian gang;

   ¾there is no identification of the Fijian gang or who is in it;

   ¾there is no identification of the Fijian gang and how they are extorting the applicant;

   ¾there is no identification of the Fijian gang and how it could possibly affect let alone threaten the applicant's family; and

   ¾there is no explanation of why the applicant cannot return to Fiji or relocate within Fiji.

   All in all, this is a case where the applicant has effectively asked this Tribunal to try and guess at what his case might be – and this the Tribunal cannot and must not do.

2. Each of the applicant’s claims has been considered, investigated, and dismissed as lacking any evidentiary support. The applicant's claims are not plausible, in any way, shape or form, in the absence of any evidence to substantiate that they may have some basis, however fragile.

3. The evidence in this case has never moved beyond the bare claims originally filed with the Department and which resulted in the entirely and deservedly adverse decision made by the Minister’s Delegate on 20 November 2023.

4. Overall, on reviewing, entirely afresh, all of the evidence in this case and its files, my only possible conclusion is that the applicant has not established any aspect of his case.  The sheer paucity of any evidence to support the applicant’s claims, as well as his own admissions in [31] above have undermined the applicant's case and resulted in its refusal.

CONCLUSION

1. 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).

2. 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).

3. 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

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

   
   Statement made on 05 July 2024 at 5:01pm

   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.

   …