2402659 (Refugee)

[2024] AATA 2137

2402659 (Refugee) [2024] AATA 2137 (13 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2402659

COUNTRY OF REFERENCE:                   Kiribati

MEMBER:Denny Hughes

DATE:13 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 13 May 2024 at 2:53pm

CATCHWORDS

REFUGEE – protection visa – Kiribati – natural disasters – rising sea levels – employment – economic conditions – land dispute – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 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 claims to be a citizen of Kiribati, applied for the visa on 31 October 2023. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for grant of a protection visa.  

3. The applicant appeared before the Tribunal on 11 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gilbertese and English languages.

   CLAIMS AND EVIDENCE

4. The applicant’s claims for protection can be summarised from his visa application as follows:

   ·He harbours deep apprehensions about returning to Kiribati due to his fears of natural disasters that plague the region – such as rising sea levels, severe storms, and coastal erosion. He feels a profound sense of dread and trepidation which make it incredibly challenging for him to consider returning.

   ·Kiribati is a small country with limited opportunities. His struggle to find gainful employment and secure a basic livelihood left him feeling hopeless about returning. The scarcity of job prospects and the challenges associated with sustaining himself in such an environment has cast a shadow of despair over the idea of going back.

   ·His family is economically disadvantaged, and their neighbours are well-off, which makes them susceptible to bullying and mistreatment from them due to their financial circumstances.

   ·He lacks the financial means to relocate to another nation, and the absence of job opportunities in Kiribati only compounds the difficulty in finding a way out.

   ·The predominant focus in Kiribati is on financial matters, and the prevalence of corruption within the police and government systems means that there is minimal support or assistance available for underprivileged families like his own. They have very few avenues for help or relief.

   Tribunal review

5. The applicant was invited to give evidence and present arguments at a hearing on 11 April 2024. The applicant was not in attendance at the time the hearing was scheduled to commence at 2:00pm. After the hearing was due to commence, the applicant called and spoke to an officer of the Tribunal. It was determined the applicant was in the wrong location, having attended the Department of Home Affairs office on Bourke St, Melbourne. After some delay, the applicant was able to attend the hearing, which commenced at 3:28pm.

6. At the hearing, the applicant at times spoke in English and at times used the interpreter. He gave evidence about his life in Kiribati, which is discussed in the assessment below, as well as a new claim about a land dispute involving his uncle. No post interview submissions were made to the Tribunal.  

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

10. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

11. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. The applicant provided the Department with a copy of the biodata page from his Kiribati passport. He has consistently claimed to be from Kiribati and was able to speak through the assistance of an interpreter in the Gilbertese language at the hearing without any apparent difficulty. The applicant had no identity documentation at the hearing, but the Tribunal considers there are no concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Kiribati.

15. There was no claim or evidence to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Kiribati is his receiving country and has assessed his claims against that country.

16. At the hearing, the applicant detailed his life in Kiribati. He indicated that he was not married, but has a [age] year old daughter that lives with her mother in Kiribati. His mother and siblings also live in Kiribati, and his father has passed away.

17. In his evidence before the Tribunal, the applicant initially indicated that he had no fears in returning to Kiribati. His evidence was that he had come to Australia to work to support his family.

18. The Tribunal explained the criteria for grant of a protection visa and asked him if he had any fears of harm in returning to Kiribati. The applicant said he had no fears. He indicated someone had applied for the visa on his behalf, but he did not know which visa was being applied for. He wanted to know whether a protection visa was good for him to live in Australia.

19. The Tribunal explained to the applicant that a protection visa is granted to people who fear harm in their home country. The applicant explained that his fear was to go back to Kiribati and do nothing. He said his plan was to get a job in Australia and get a good visa. The Tribunal understood his evidence to be that this enables him to send money to his family. He explained that he is not afraid of anything, but when he goes back he does not know where he is going to live. He had been in Australia for three years, and his uncle had taken his property. He said this is why he needs to work in Australia, because when he goes back he would not be doing anything. He explained that working enables him to send money to support his daughter in her schooling. He again emphasised that he is not afraid of anything, but he is happy here. He said he did not know about the visa, but now he understands.

20. He confirmed he was never harmed in the past. In terms of the future, he did not fear harm, but he had issues with his uncle who had taken over his father’s land. This was why he wanted to remain in Australia and obtain permanence.

21. The Tribunal accepts the applicant’s evidence at the hearing that he did not fully understand what a protection visa was and that he was assisted by his contractor to apply for the visa. While that raises some concerns for the Tribunal about his claims in the protection visa application itself, the Tribunal found the applicant to be honest in his evidence given at the hearing.

    Environmental and economic concerns

22. In the protection visa application, the applicant’s claims related to environmental and economic concerns in Kiribati, related issues with his neighbours, and concerns about his fears in returning more generally.

23. At the hearing, the Tribunal asked the applicant about his concerns regarding the environment. The applicant indicated he was not sure about the environment in Kiribati, and did not know whether the environment was good or bad. In terms of the economic situation, the applicant said he had not worked in Kiribati. He would fish and sometimes go to the markets where they would sell coconut copra and other items. He made no reference to issues with his neighbours.

24. The applicant’s evidence was that his life in Kiribati was good. He explained that he did not have money, but he had food and his family was there. He claimed he came to Australia to work and had been here for three years. The Tribunal asked what he would do if he returned to Kiribati. He said he would do nothing, just fishing, but now (living in Australia) he can send money to Kiribati every few weeks.

25. As discussed at the hearing, the Tribunal has had regard to country advice which confirms Kiribati is facing ongoing economic and environmental pressures, but the Tribunal considers that advice also indicates these are national issues impacting the population in general and that the country, with the assistance of other nations, is doing what it can to respond to those pressures.[1]

    [1] DFAT, Kiribati - Country Brief, March 2024; DFAT, Australia's development assistance in Kiribati, undated (March 2024); DFAT, Kiribati - Australia’s commitment to strengthening climate and disaster resilience in the Pacific, (undated) March 2024; UNDRR, Disaster Risk Reduction in the Republic of Kiribati, 2019.

26. The country advice confirms that most citizens in Kiribati are engaged in subsistence agriculture, fishing and other informal activities.[2] The Tribunal considers that consistent with the applicant’s evidence and accepts this reflects his own life in Kiribati. While the Tribunal accepts his economic position was limited and there is limited government support and assistance in the country, the Tribunal is not satisfied he faced harm in the past because of his economic position, whether in terms of being economically disadvantaged or that he or his family were bullied or mistreated by neighbours because of their economic position, as was claimed in the written application. Instead, the Tribunal accepts the applicant’s oral evidence that he considered he had a good life.

    [2] Freedom House, Freedom in the World 2023 - Kiribati, freedom-world/2023, 2023

27. Beyond the issue related to his family’s land considered below, the Tribunal considers the applicant would be able to return to Kiribati, live with his family and subsist as he did in the past. While the Tribunal accepts returning to such a life would be a significant reduction in income for him and his family when compared against his life in Australia, the Tribunal is not satisfied that he would be unable to subsist, or that that he fears or would face harm in any relevant sense in connection with the economic situation in the country.

28. In terms of the environmental challenges, as noted above the applicant did not contend at the hearing that he had concerns about the environment or feared harm in connection with these issues. The country advice is clear about the environmental pressures facing Kiribati, but also indicates the country is taking steps to address and respond to those concerns.[3]

    [3] DFAT, Kiribati - Country Brief, March 2024; DFAT, Australia's development assistance in Kiribati, undated (March 2024); DFAT, Kiribati - Australia’s commitment to strengthening climate and disaster resilience in the Pacific, (undated) March 2024; UNDRR, Disaster Risk Reduction in the Republic of Kiribati, 2019.

29. The Tribunal is satisfied the applicant was not harmed, whether directly or indirectly, in the past and while there are clear environmental challenges for the country going forward, the Tribunal is not satisfied that he fears or would face harm in any relevant sense in connection with the environmental situation in the country.

30. Moreover, as explained to the applicant at the hearing, the refugee and complementary protection assessments do not encompass all types of harm.

31. The country advice indicates that Kiribati is a free and democratic country. The Tribunal notes there are some issues for the LGBTIQ+ community, and some indications of gender discrimination, but in the main the advice indicates that people’s rights and freedoms are respected.[4] The advice indicates the economic issues facing Kiribati are due to the constraints of it being a small island economy in the Pacific Rim, and its vulnerability to external shocks and environmental stress.[5] The advice does not indicate that individuals or groups are differentially or intentionally targeted in connection with the economic or environmental issues facing the country.

    [4] Freedom House, Freedom in the World 2023 - Kiribati, freedom-world/2023, 2023.

    [5] DFAT, Kiribati - Country Brief, March 2024

32. For these reasons, the Tribunal finds the economic and environmental challenges that the applicant may face if he returns to Kiribati would not constitute persecution because these issues would not be for reasons of his race, religion, nationality, membership of a particular social group or political opinion, as required under s 5J(1)(a) or (4)(a) of the Act. It follows that the applicant does not have a well-founded fear of persecution for these reasons

33. In relation to the complementary protection criterion, the Tribunal finds that any economic or environmental issues he may experience in Kiribati would not involve the intentional or deliberate act or omission of a third person or persons such that it would constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture, or otherwise give rise to significant harm. For those reasons, while the applicant may experience economic and environmental challenges on return to Kiribati, the Tribunal is not satisfied they would constitute ‘significant harm’, as defined in s 36(2A). It follows that the Tribunal is not satisfied there is a real risk of the applicant facing significant harm for these reasons, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kiribati.

    Land issue involving uncle

34. At the hearing, the Tribunal asked whether the applicant feared any harm in returning to Kiribati. In response to this question, the applicant raised for the first time a concern that his uncle had taken over his late father’s land on the main island and he did not know where he is going to live. He explained that he had been in Australia for three years and his uncle had taken over two parcels of his father’s land. He said this is why he needs to live and work hard, because when he goes back he would do nothing. He can also support his daughter in school. He reiterated he was not afraid of anything, but he is happier to work in Australia.

35. It was his evidence that his uncle’s son lived on one parcel of land, and they had sold the other. He did not believe he would be able to get his land back. He said he no longer had access to that land, but he had somewhere to live on the other side of the island. He could not live with his sister as she has many kids and a small house, but he can live with his mother. He said he is not in touch with his uncle.

36. The Tribunal asked whether he feared harm in relation to that situation. The applicant said his uncle’s sons had thrown stones at his house in the past and he thought there might be harm. The applicant was not sure whether he was at risk of harm from the uncle. He explained that his family had been fighting over the land, but had not come to any concession. He later indicated these issues had been ongoing for some time.

37. The Tribunal asked if he could go to the Kiribati authorities and obtain assistance in getting his father’s land back. He said he had tried to do it before he came to Australia, but they told him to come back later. He had then come to Australia and he had not done so (followed up with the authorities). His sister had also tried. If he returned, he would go and live with his mother if they were still on the land.

38. The Tribunal put to him that the country advice indicated that Kiribati was a humble economic country, but the advice also indicated it was a free and largely safe country, with a police force, and if there were conflict between people they could intervene.[6] The applicant indicated he agreed. The Tribunal noted that he had said his uncle was a member of the police, but asked him if he believed the police would protect him if issues arose. He said he believes the police would assist him because he is doing the right thing. He said he knows the history related to the land. He said there was nothing else in Kiribati that concerned him.

    [6] Freedom House, Freedom in the World 2023 - Kiribati, freedom-world/2023, 2023.

1. The Tribunal accepts there is a conflict over land in the capital involving the applicant’s family and his uncle’s family, and that his uncle’s family has taken over land that was his father’s and he would be unable to live on that land. It was apparent from his evidence that these issues have been ongoing between the families/elders for some time. In a context where the applicant has not claimed any past violence (apart from the stone throwing) the Tribunal finds the absence of past harm is relevant.

2. As indicated to the applicant at the hearing, while the Tribunal accepts there is a conflict over land, and it is reasonable to consider that conflict would continue if he returned to Kiribati and sought to reacquire his family’s land, the Tribunal has concerns as to whether the applicant would be at threat of harm from his uncle or his sons on return to Kiribati. His uncle had not previously threatened or harmed the applicant. It was his evidence that he was not certain whether his uncle would harm him. In terms of his sons, the only issue he had in the past was that they had thrown stones on his roof. It does not appear his uncle’s sons had ever threatened or harmed the applicant in the past. In this regard, the Tribunal notes that while he considered there might be harm, it was also his evidence that he was not afraid of anything on return to Kiribati.

3. In terms of protection from the police or authorities, it was his evidence that he had made inquiries in the past, but was told they would deal with the matter later. He then came to Australia, and did not seek further involvement of the police or authorities. He said his sister had contacted them, but this does not appear to have resolved anything. The applicant had also said his uncle was a policeman.

4. The evidence before the Tribunal indicates that there is due process in civil and criminal matters in Kiribati, and while there are some indications of official corruption in the country, the advice also suggests accountability for police and a focus on community crime prevention. The advice indicates that the government operates a system of land registration and generally upholds property rights.[7]

   [7] Freedom House, Freedom in the World 2023 - Kiribati, freedom-world/2023, 2023; Global Organised Crime Index, Kiribati, /downloads/2023/english/ocindex_profile_kiribati_2023.pdf, 2023

5. While the Tribunal accepts there is a land dispute and conflict between the families, the Tribunal is not satisfied and does not accept the applicant is a threat of harm from his uncle, his uncle’s sons or any other family member. It follows that the Tribunal is not satisfied there is a real chance or risk of the applicant facing harm from his uncle, his uncle’s sons, or anyone else in connection with the land dispute, if were to return to Kiribati now or in the reasonably foreseeable future.

6. Further, even if there was a real chance or risk of harm – and that Tribunal is not satisfied this is the case – the Tribunal considers the applicant would be able to obtain protection from the police against any threat of harm from his uncle or his family. Even accepting his uncle is a policeman, and there is some indication of corruption in the country, the Tribunal is not satisfied corruption is at a level where he would not be protected against any potential threat. Moreover, the Tribunal considers there is a clear indication in the advice that there is a system of land registration and property rights that is generally upheld by the authorities. The Tribunal considers there is a reasonable potential that he could reacquire or attempt to reacquire his land lawfully on return to Kiribati. The Tribunal is satisfied effective protection measures are available to the applicant in Kiribati. Further, given the limited indication of any past harm or current threat, and country advice about the effectiveness of Kiribati police and official processes, the Tribunal is also satisfied the applicant could obtain from an authority of the country, protection such that there would not be a real risk that the applicant will suffer harm or significant harm

7. In terms of the refugee criterion, the Tribunal finds that there is not a real chance of the applicant facing serious harm for any of these reasons, now or in the reasonably foreseeable future. It follows that the applicant does not have a well-founded fear of persecution for any of these reasons, and the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

8. 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). In view of the above, the Tribunal is not satisfied there is a real risk of the applicant facing significant harm for these reasons, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kiribati. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

9. 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

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

    Denny Hughes
    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.

    …