2400582 (Refugee)

[2024] AATA 2589

2400582 (Refugee) [2024] AATA 2589 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2400582

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Rachel Da Costa

DATE:8 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 08 April 2024 at 3:45pm

CATCHWORDS
REFUGEE – protection visa – Vanuatu – political opinion – campaign manager for candidate – attacked and harmed by opposing supporters – application completed by another person without applicant’s knowledge of contents – poorly advised or misled – intention to work in Australia to support family and buy own land – training and work in Australia – land dispute with cousin – intention to avoid but no fear of harm – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1958 (Cth), Schedule 2

CASE
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who is a citizen of Vanuatu, applied for the visa on 23 October 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations. 

   CLAIMS AND EVIDENCE

   Background

3. In his protection visa application form, the applicant provided the following information. He was born in [Town 1], Vanuatu in [Year]. He has never been married. He has no family in Vanuatu or Australia with whom he is in contact.

4. In Vanuatu, he always lived at [Town 1]. He speaks, reads and writes Bislama and English. He is a Christian.

5. In Australia, he works as [an occupation 1] for [Employer], in [Town 2], Victoria. In Vanuatu, he was unemployed and relied on subsistence farming, selling his produce in the market. He has never studied.

6. He arrived in Australia [in] August 2021 as the holder of a [Specified] visa. He travelled on his Vanuatuan passport.

   Evidence before the Department

   Claims for protection

7. In his protection visa application form, the applicant makes the following claims:

   ·     He is seeing protection in Australia because he wants to be protected from the continuous attacks and harm from the opposition political candidate’s supporters in Vanuatu;

   ·     He was attacked several times by supporters of the opposition candidates and nearly killed;

   ·     He was attacked because he was the campaign manager for the winning candidate. He reported the losing candidates for corruption and election rigging and this cost them the election. That is why the supporters want to kill him;

   ·     He did not seek help because a network of people kept an eye on his movements;

   ·     He once moved to the province of [Province] and tried to hide but the supporters found him and assaulted him;

   ·     If he returns to Vanuatu, he will be harmed and tortured again because the opposition candidate’s image and reputation have been tarnished;

   ·     This person has been continuously threatening the applicant through his friends who relay messages to him;

   ·     The Vanuatu authorities do not have the resources to protect him;

   ·     He cannot relocate because he tried this before and he was found and assaulted.

   The delegate’s decision

8. On 12 December 2023, the Department wrote to the applicant seeking more information about aspects of his claims. The applicant did not reply, and he did not provide any other relevant evidence to the Department in support of his protection visa application.

9. On 10 January 2024, the delegate made their decision. Based on the information before them, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations.

   Evidence before the Tribunal

10. The applicant did not provide any additional documents to the Tribunal relevant to his claims for protection prior to (or after) the Tribunal hearing.

    The hearing

11. The applicant appeared before the Tribunal on 7 April 2024 to give evidence and present arguments. The Tribunal invited the applicant to an in-person hearing, but followed up with an email asking him whether he would prefer to attend the hearing via Microsoft Teams video given he lives in [Town 3], NSW, which is over 700km from Sydney. The applicant responded confirming he would participate by video and so the hearing proceeded on that basis. The Tribunal was assisted by an interpreter in the Bislama and English languages.

12. Part way through the hearing, the video signal strength diminished to the point where the video image could not be maintained and so with the applicant’s agreement the Tribunal continued the hearing by telephone. The Tribunal is satisfied that the applicant had the opportunity to participate meaningfully in the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

13. 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.

14. 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.

15. 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).

16. 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.

17. 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

18. 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.

    Analysis, reasons and findings

19. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

20. In the hearing, the applicant gave evidence that one of his friends put him in contact with a man from [Country] called “[Mr A]” who lives in [City] and [Mr A] filled in the protection visa application form for the applicant. He paid [Mr A] $450. [Mr A] asked the applicant for his passport and birth certificate and said he would do the rest. The applicant is not aware of what information is in his protection visa application form and has not read the form.

21. In the hearing, the Tribunal discussed with the applicant his family and relationships, his employment and training history, his life in Vanuatu, his migration history and the reasons he fears returning to Vanuatu. The Tribunal found the applicant to be an honest witness who had been poorly advised, if not misled, by [Mr A] about his circumstances.

22. The applicant gave evidence that in Australia, he works on a [workplace] [doing work tasks]. He operates [machinery] like the [examples of machinery]. Since being in Australia he has added to his skills as [an occupation 2], which is what he trained as in Vanuatu. He has done a course in Melbourne learning how to operate new, different [machinery]. He has learned how to control the [more examples of machinery].

23. The applicant gave evidence that he applied for a protection visa because he didn’t know how to get another visa and he needs a good visa for working in Australia. He talked to his friends and they told him [Mr A] could help him, so the applicant sought [Mr A]’s help. The applicant confirmed that he did not know what a protection visa was, and so the Tribunal explained it to him.

24. The applicant gave evidence that in Vanuatu, he has his mother, father, a sister and a brother. They all live together in a village called [Village], which is on the same island as [Town 1].[1] This is where the applicant lived all his life before coming to Australia. His family grow produce on their land and sell it in a market in [Town 1] and the applicant also supports them financially from Australia. He is in regular contact with them via [Social media]. The applicant is in a relationship with a woman in Vanuatu called [Ms B]. She also lives with his family. They have one young child together. With the money he earns in Australia, he wants to build another house in his village.

    [1] Google maps shows [Village] is around 60km and a 1 hour drive from [Town]. [Reference]

25. After finishing Year 7 at school, the applicant started farming with his parents. He also trained as [an occupation 2] in Vanuatu and has a certificate from the training school (not provided to the Tribunal). For two years before coming to Australia, he worked as [an occupation 3] for a [business] which sold [product] in [Town]. He also worked as [an occupation 1]. Before this, he was just living in his village. In discussing this background, he alluded to an issue with a cousin regarding land but did not elaborate. 

26. The applicant said he came to Australia for better work and economic prospects. He said he only earned about $2.00 an hour in [Town 1] but in Australia he gets a much better hourly rate and he can help his family back home with the money he earns.

27. The Tribunal asked the applicant whether there were any reasons why he feared harm if he returned to Vanuatu and he said there were not. The Tribunal reminded him that he had mentioned something about a problem with a cousin and land and invited him to discuss that if he wanted to. The applicant gave evidence that this dispute was not a reason why he doesn’t want to go back to Vanuatu yet; he wants to stay in Australia so he can earn money and buy his own land.

28. In response to questions from the Tribunal, the applicant gave evidence that there was some land in the village which belonged to his grandfather. This is not the same land as his parents currently use. In about 2020, the applicant and his cousin got into a dispute about this land because his cousin wanted more of the land and would only let the applicant have a small amount to use. This dispute escalated to the point where the applicant and his cousin were not talking to each other, but it was never a physical dispute. Sometimes his cousin got quite verbally aggressive and held a knife, particularly when he had been drinking alcohol. Eventually, the applicant told his cousin that he (the cousin) could continue using the land and the applicant would work and earn money and buy his own land, which is what he is trying to do. After the applicant told his cousin that he could use all the land, the applicant got the job for the [business] in [Town 1] and then he came to Australia about two years later. He and the cousin have not been in contact for a long time but the applicant did not have any more problems with his cousin after he told him he could use all the land. The applicant does not fear that his cousin would try to harm him if he returned to Vanuatu, but he doesn’t want to talk to his cousin and feels that they are still not on good terms.

29. The Tribunal asked the applicant where he would live if he returned to Vanuatu. He said he would live in [Town 1] with a cousin who lives there. [Mr B] and their baby can come and live with him and they would find a house to rent. He said he would not want to live in the village again because of not being on speaking terms with his cousin. The applicant did not suggest that if he went back to Vanuatu he would attempt to take any of the land back from his cousin. He said he was worried about finding a proper job in [Town 1] because he can’t earn good money there like he can in Australia which is why he wants to stay in Australia. The Tribunal put to the applicant that based on his evidence, it might find that if he returned to Vanuatu, he would live in [Town 1], find work there, [Ms B] and the baby would live with him and he would not have any problems with his cousin. The applicant agreed with this. The Tribunal put to him that on this basis, it might find he would not face a real chance of serious harm or a real risk of significant harm if he returned to Vanuatu. The applicant agreed with this.

30. The Tribunal explained to the applicant the nature of the claims that were contained in his protection visa application form and put to him that based on his evidence in the hearing, it might find that those claims were not true. He agreed with this. Accordingly, the Tribunal does not accept these claims as being true and will give them no further consideration.

31. Having considered all the evidence before it, the Tribunal finds as follows. The Tribunal accepts that in Vanuatu, the applicant worked as a farmer, [an occupation 2] and as [an occupation 3] and that the applicant has built on his technical skills since being in Australia. The Tribunal accepts that the applicant had a dispute with a cousin about the use of some land in his village which belonged to his grandfather. The Tribunal accepts that the applicant gave up his claim to use that land and told his cousin he could use it all, and that as a result, the applicant found work in [Town 1] and then about two years later came to Australia in an effort to earn more money.

32. The Tribunal is prepared to accept that before the applicant gave up his claim to use the land, he and his cousin had some arguments and his cousin was verbally threatening at times, but the dispute was never physical and there were no further problems once the applicant agreed his cousin could use all the land. The Tribunal accepts that the applicant and his cousin have not been on speaking terms since that time. Based on the evidence, the Tribunal finds that the applicant did not try to get the land back while he was still in Vanuatu once he had given it up and he would also not try to get the land back if he returned to Vanuatu.

33. The Tribunal finds that if the applicant returned to Vanuatu in the reasonably foreseeable future he would not return to live in his village. The Tribunal accepts that this is, in part, because the applicant feels uncomfortable about the situation with his cousin but the Tribunal does not accept that it is because the applicant fears harm from his cousin. The Tribunal accepts the applicant’s evidence that he does not fear harm if he returns to Vanuatu and finds that his cousin would not harm him. This is because the nature of their dispute was only in relation to use of the land, the applicant gave up his claim to use some of the land while he was still in Vanuatu and he had no further problems with his cousin after this.

34. The Tribunal accepts the applicant’s evidence that he would live in [Town 1], bring [Ms B] and his child to live with him and attempt to find work there, which is where he was working as [Occupations 2 and 3] before he came to Australia. The Tribunal accepts that the applicant would like to stay in Australia and work because it offers him better economic prospects to support himself and his family than if he returned to Vanuatu in the reasonably foreseeable future.  

    Does the applicant meet the refugee criterion?

35. Based on the evidence before it and the Tribunal’s findings, the Tribunal finds that the applicant does not fear returning to Vanuatu.

36. Based on its findings above, the Tribunal accepts that the applicant still feels uncomfortable about the situation with his cousin and the land but finds he will not be harmed by his cousin for the reasons explained above. Therefore, the Tribunal finds that the applicant would not face a real chance of serious harm arising from the circumstances surrounding the land dispute with his cousin if he returns to Vanuatu in the reasonably foreseeable future.

37. The Tribunal accepts that the applicant is concerned about his prospects of finding work in Vanuatu on his return and that he came to Australia in search of better economic prospects with a view to eventually returning to Vanuatu. The Tribunal has found above that the applicant had employment in Vanuatu before he left and that he has built on his technical skills since being in Australia. In the hearing, the Tribunal discussed country information with the applicant about employment prospects in Vanuatu. As discussed with the applicant, a recent report from the Asian Development Bank[2] explains that in Vanuatu, so many local people have left to go and work overseas that this has led to a shortage of working-age people in Vanuatu. This report says there are shortages of workers in the tourism sector, the health sector, as well as in agriculture and construction. Some Pacific countries are even having to import their own migrant workers to fill these labour shortages. Another academic source[3] indicates that Vanuatu is the largest supplier of labour to Australia and New Zealand under the Pacific seasonal worker schemes and this has created concern in Vanuatu about a shortage of domestic labour forces, particularly amongst working age men, of which the applicant is one. The Tribunal put to the applicant that while it understands that he can earn more money in Australia than in Vanuatu,[4] it might find that with his skills and experience, including the skills he has gained while working in Australia, he would be able to find employment back in Vanuatu, as well as a place to live, and he would be able to subsist. The applicant responded “ok”. In light of the applicant’s skills and experience, the fact that he had previously been employed in Vanuatu and the country information discussed above, the Tribunal finds that if he returned to Vanuatu in the reasonably foreseeable future he would be able to find employment and a place to live and he would not face a real chance of serious harm arising from these circumstances.

    [2] Rough Sailing: Navigating Labor Shortages and Remittance Needs in the Pacific | Asian Development Blog (adb.org)

    [3] Pacific labour mobility over the last year: continued growth - Devpolicy Blog from the Development Policy Centre

    [4] Pacific Islands fear brain drain from Australia job scheme | Labour Rights | Al Jazeera (accessed 13 March 2024)

1. Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Vanuatu now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.

2. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   Does the applicant meet the complementary protection criterion?

3. As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).

4. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[5] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that he 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).

   [5] MIAC v SZQRB [2013] FCAFC 33

   Conclusion

5. 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).

6. 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).

7. 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

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

   Rachel Da Costa
   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.

   …